Terry Lynn Westerman v. The State of Texas--Appeal from 249th District Court of Johnson County

AFFIRMED 19 JULY 1990

NO. 10-89-245-CR

Trial Court

# 26997

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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TERRY LYNN WESTERMAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 249th Judicial District Court

Johnson County, Texas

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O P I N I O N

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This is an appeal by defendant Westerman from his conviction for burglary of a motor vehicle, enhanced by a prior felony conviction, for which he was assessed 20 years in the Texas Department of Corrections and a $5,000 fine.

Defendant appeals on 3 points.

Point 1 asserts "the evidence was insufficient to sustain a verdict of burglary of a motor vehicle".

In reviewing the sufficiency of the evidence to sustain a conviction, the evidence is viewed in the light most favorable to the prosecution to ascertain whether or not a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Foster v. State, Ct.Crim.Appls, 635 S.W.2d 710; Butler v. State, Ct.Crim.Appls, 769 S.W.2d 234.

A door was stolen off of complainant Logan Sizemore's 1980 Monte Carlo automobile in Cleburne. Sizemore reported the loss to the police. A few days later a police officer stopped an automobile that was pulling out of defendant's driveway. The door of the car had been recently painted and the underneath paint matched the paint of the stolen door. Defendant gave the police a statement that a Wayne Walls had sold him the door on March 3, 1989. Defendant and his wife testified on trial that he had purchased the door from a Justin McCowan. Evidence was that Walls was not and had not been in the state for a number of months; and McCowan testified he did not sell the door to defendant. Defendant lived a very short distance from the lot from which the car door was stolen.

The evidence is sufficient to sustain the conviction. Valdez v. State, Ct.Crim.Appls, 623 S.W.2d 317. The evidence shows defendant had personal possession of a recently stolen car door which could not have been removed from the complainant's car without a breaking into or illegal entry into the vehicle. Moreover, defendant admitted at trial he put the door on his car and spray-painted it white.

Viewing the evidence in light most favorable to the verdict, the trier of fact could have reasonably concluded that defendant broke into the complainant's car with the intent to commit theft.

Point 1 is overruled.

Point 2 asserts "the evidence was insufficient to prove that the defendant entered a vehicle as that term is defined in the Texas Penal Code".

Complainant's 1980 Monte Carlo did not have a motor, transmission, alternator, generator and had front-end damage. Defendant contends the vehicle from which the door was stolen was not a vehicle but was junk.

There is no distinction between an immobilized vehicle and a "vehicle" in the Penal Code. It is the design of the vehicle that controls and not its temporary condition. Trevino v. State, CA (San Antonio), 697 S.W.2d 476.

Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that a "vehicle" had been burglarized.

Point 2 is overruled.

Point 3 asserts "the trial court committed reversible error in refusing to charge the jury on a lesser-included offense of theft".

In determining whether a charge on a lesser-included offense is required, a two-step process is utilized. First, the lesserincluded offense must be included in the proof necessary to establish the offense charged. Second, the record must reflect some evidence that if the defendant is guilty, he is only guilty of the lesser-included offense. Royster v. State, Ct.Crim.Appls, 622 S.W.2d 442; Eldred v. State, Ct.Crim.Appls, 578 S.W.2d 721.

The evidence did not raise the issue of theft and defendant was not entitled to a charge on that offense. Simpkins v. State, Ct.Crim.Appls, 590 S.W.2d 129; Thomas v. State, Ct.Crim.Appls, 578 S.W.2d 691.

Point 3 is overruled.

AFFIRMED

FRANK G. McDONALD

DO NOT PUBLISHChief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means and Chief Justice Frank G. McDonald (Retired)].