MARK WILLIAM STEWART, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 17, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01266-CR
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MARK WILLIAM STEWART, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 292nd District Court
Dallas County, Texas
Trial Court Cause No. F88-95488-V
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O P I N I O N
Before Justices Whitham, Baker, and Ovard
Opinion By Justice Ovard
        Mark William Stewart appeals his conviction by a jury for burglary of a building. After a plea of true to two enhancement paragraphs, the trial court sentenced him to twenty-five years' confinement. In three points of error, he contends that the trial court erred by (1) denying his second motion to quash the indictment, (2) admitting an audio recording, and (3) admitting his failure to respond to a question while in police custody. We affirm.
        At trial, testimony was elicited that at approximately 5:45 a.m. on May 29, 1988, in response to a silent burglar alarm, Dallas police officers detained Stewart in the parking lot of the burgled building. A knife and shotgun taken from the building were recovered from his person. He was then arrested for the burglary.
        In his first point of error, Stewart contends that his second motion to quash the indictment should have been granted because the indictment failed to allege the property or a description of the property taken during the burglary. Relying on DeVaughn v. State, he argues that this indictment deficiency deprived him of sufficient notice. DeVaughn v. State, 749 S.W.2d 62, 65-8 (Tex. Crim. App. 1988). The indictment under review charged Stewart with burglary of a building with the intent to commit theft under section 30.02(a)(1). FN:1 In his second motion to quash the indictment, Stewart specifically complained of the indictment's failure to allege the property or general description of the property taken by him in the burglary. Stewart's reliance on DeVaughn is misplaced. DeVaughn holds that where an indictment charges burglary with intent to commit theft under section 30.02(a)(1), as opposed to a completed theft or attempted theft under section 30.02(a)(3), a property description is unnecessary even under a motion to quash. DeVaughn v. State, 678 S.W.2d 143, 151 (Tex. App.--San Antonio 1984), vacated and remanded, 749 S.W.2d 62 (Tex. Crim. App. 1988), aff'd on remand, 759 S.W.2d 510 (Tex. App.--San Antonio 1988). See Nichols v. State, 494 S.W.2d 830, 833 (Tex. Crim. App. 1973). We overrule the first point of error.
        In his second point of error, Stewart argues that the State failed to establish the proper predicate for admission of the audio recording. Specifically, he argues that the State offered no evidence that the recording had been properly preserved. The proper predicate for admission of an audio recording includes proof of the manner of preservation of the recording. Edwards v. State, 551 S.W.2d 731, 733 (Tex. Crim. App. 1977). The admissibility of the recording is within the sound discretion of the trial court. Id. The general manager of the silent alarm company testified that the tape had been in his company's continuous possession since the date of the burglary and that it contained no alterations or deletions. We determine that this testimony proves the manner of preservation of the recording and consequently that the trial court did not abuse its discretion. Even if the tape was improperly admitted, Stewart has failed to demonstrate how he was harmed. He was apprehended within minutes of the burglary in the parking lot in possession of property taken from the building. His recent unexplained possession of the property at that location and time was sufficient evidence of his guilt. Williams v. State, 504 S.W.2d 477, 480 (Tex. Crim. App. 1974). We overrule the second point of error.
        Finally, Stewart argues that admitting his failure to answer a question, while in police custody, asked by the complainant, was error. At trial, testimony was elicited that the complainant asked Stewart, while under arrest, how he had the knife and shotgun in his possession. Stewart did not respond to the question. At trial, he made an objection to "anticipated hearsay." The trial court overruled his hearsay objection. On appeal, Stewart argues that his silence in the face of custodial interrogation is not admissible. Sanchez v. State, 707 S.W.2d 575, 581-82 (Tex. Crim. App. 1986). When the error argued on appeal is different than the objection at trial, nothing is preserved for review. Hodge v. State, 631 S.W.2d 754, 757 (Tex. Crim. App. [Panel Op.] 1982). We overrule the third point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JOHN OVARD
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
881266F.U05
 
FN:1 All textual section references refer to Tex. Penal Code Ann. (Vernon 1989)
 
     § 30.02 Burglary provides in pertinent part:
 
     (a) A person commits an offense if, without the effective consent of the owner, he:
 
         (1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or
         (2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or
         (3) enters a building or habitation and commits or attempts to commit a felony or theft.
File Date[11-16-89]
File Name[881266F]