Smith v. State

460 S.W.2d 927 (1970)

John Henry SMITH, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 43344.

Court of Criminal Appeals of Texas.

December 16, 1970.

Bob Heath, Houston, for appellant.

Carol Vance, Dist. Atty., Phyllis Bell and Vic Pecorino, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is attempting to commit burglary with intent to commit theft; the punishment, four (4) years.

A Houston resident was aroused late at night by someone beating and tearing on her downstairs apartment window screens. She called the police who arrived and placed the appellant under arrest. The arresting officer described the two window screens on the ground as follows: "They were bent up, appeared to be pulled, pried off the windows." The resident identified the appellant, whose face she had seen with the aid of an outside light prior to the arrival of the police.

The appellant did not testify or offer any evidence in his behalf.

The sufficiency of the evidence is challenged. Reliance is had upon Turner v. State, 24 Tex.Civ.App. 12, 5 S.W. 511; Brown v. State, 94 Tex.Cr.R. 140, 250 S.W. 170; Sanchez v. State, 143 Tex.Cr.R. 345, 158 S.W.2d 801; Baldwin v. State, 153 Tex.Cr.R. 19, 216 S.W.2d 985. Each case cited involved burglary with intent to commit rape and is not authority in the case at bar.

Garcia v. State, Tex.Cr.App., 373 S.W.2d 744, is authority for the holding that the prying on the shutters overlapping a window at night constitutes sufficient evidence to support a conviction for attempting to commit burglary with intent to commit theft as alleged in the indictment. See also Alexander v. State, 31 Tex.Cr.R. 359, 20 S.W. 756; Henderson v. State, 94 Tex.Cr. R. 97, 250 S.W. 688; and Sikes v. State, 166 Tex.Cr.R. 257, 312 S.W.2d 524.

The judgment is affirmed.