RAYMOND LOYAL COGBILL, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 16, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01504-CR
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RAYMOND LOYAL COGBILL, Appellant
v.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-80294-88
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O P I N I O N
Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Burnett
        Raymond Loyal Cogbill was convicted by a jury of the offense of burglary of a motor vehicle. Punishment was assessed at fifteen years' confinement. Appellant raises two points of error, contending that: (1) the trial court erred in granting the State's motion for continuance after the trial began; and (2) the trial court erred in failing to include a jury instruction on a lesser included offense. We disagree, and accordingly, affirm the judgment of the trial court.
 
THE STATE'S MOTION FOR CONTINUANCE
        In his first point of error, appellant contends that the trial court erred in granting the State's motion for continuance after the trial began because the State failed to comply with any of the requirements of Articles 29.04, 29.08, or 29.13 of the Texas Code of Criminal Procedure. Those articles set forth content and writing requirements governing motions for continuance.
        The record shows that after the jury was sworn and empaneled, the State called as witnesses two members of the Plano Police Department. After their testimony, at 2:30 p.m., the State requested a postponement of the trial on the grounds that the case was brought to trial on a date different from the one originally set, and the State had been unable to obtain the presence of the complaining witness, Vincent Boldin. The State informed the trial court that its investigator had been attempting to locate Boldin, and that the State believed that Boldin would be available to testify the following morning. The trial court granted the State's motion and postponed the trial until the following morning, at which time Boldin did, in fact, appear in court and testify.
        A motion for continuance during trial is addressed to the sound discretion of the trial court. Ewing v. State, 549 S.W.2d 392, 394 (Tex. Crim. App. 1977); Stein v. State, 514 S.W.2d 927, 936 (Tex. Crim. App. 1974); Bradshaw v. State, 482 S.W.2d 233, 235 (Tex. Crim. App. 1972).
        Appellant does not assert that he suffered harm as a result of the brief postponement of the trial. He merely asserts that the trial abused its discretion in granting the State's motion for continuance because the motion did not strictly comply with the requirements of the Texas Code of Criminal Procedure. We find no facts in the record showing an abuse of discretion by the trial court. Accordingly, we overrule appellant's first point of error.
LESSER INCLUDED OFFENSE
        In his second point of error, appellant contends that the trial court erred in denying his request that the lesser included offense of theft be submitted to the jury.
        An accused is entitled to instructions on a lesser included offense only if: (1) the proof required to establish the lesser included offense is included within the proof necessary to establish the offense charged; and (2) there is some evidence in the record that the accused is guilty, if at all, only of the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981).
        There is no dispute that the proof required to establish the offense of theft is included within the proof required to establish the offense of burglary of a vehicle. At issue is whether there is some evidence in the record that appellant is guilty, if at all, only of the lesser offense of theft.
        The record shows that Boldin testified that, while working alone at a construction site, he saw appellant come onto the jobsite. Appellant entered the structure where Boldin was working, encountered Boldin, and several minutes later drove away in a pickup truck at a fast rate of speed. Boldin owned a van that was parked at the jobsite, in which he had left some of his tools, including several nail guns. After appellant left the jobsite, Boldin immediately went to check the van. He had not seen appellant enter the van, but the door on the driver's side of the van was ajar, and a cup of coffee Boldin had left on the van was spilled. Boldin testified that he had not left the door ajar. He also testified that two of his nail guns were missing, and that he had not removed them from the van. He further testified that the missing nail guns were taken from behind the seat of his van, and that, for a person to have reached the location where the nail guns were kept, it would have been necessary for the person to have entered a part of his body into the van. Boldin testified that he had not given appellant permission to enter his van. The record shows that, within thirty minutes, the two nail guns were recovered from the bed of appellant's pickup truck.
        Appellant does not dispute that he took Boldin's nail guns without permission. Rather, he contends that the State proved that appellant was guilty of burglary of a motor vehicle through circumstantial evidence, as the evidence establishes that Boldin did not see appellant enter the van, but did see him enter the structure under construction. Appellant argues that these facts establish the possibility that the nail guns could have been removed from a location other than the van. If so, he argues, there is some evidence in the record that appellant is guilty, if at all, of only the lesser offense of theft.
        "Circumstantial evidence" is direct proof of a secondary fact which by logical inference demonstrates the ultimate fact to be proved. Rodriguez v. State, 617 S.W.2d 693, 694 (Tex. Crim. App. 1981). Facts proved can be of such close juxtaposition to the main fact to be proved that they are equivalent to direct testimony. Oltiveros v. State, 474 S.W.2d 221, 223 (Tex. Crim. App. 1971).
        In order to prove the offense of burglary of a vehicle, the State must establish that (1) a person (2) without the effective consent of the owner (3) broke into or entered a vehicle or any part of a vehicle (4) with the intent to commit any felony or theft. Washington v. State, 603 S.W.2d 859 (Tex. Crim. App. [Panel Op.] 1980).
        The evidence shows that someone entered Boldin's van and took two of his nail guns without his permission. Appellant and Boldin were the only two people in the vicinity of the van at the time the nail guns were taken. The nail guns were recovered from appellant within thirty minutes of the time that they were taken. By logical inference, and by the equivalent to direct testimony, these facts demonstrate that appellant was the person who entered Boldin's van.
        The record shows that the State established that (1) appellant (2) without the effective consent of Boldin (3) broke into or entered Boldin's van (4) with the intent to commit theft. The State established the four elements of the offense of burglary of a vehicle. Washington v. State, 603 S.W.2d at 859. The record does not support appellant's contention that there is some evidence that he is guilty of only the lesser offense of theft. Appellant's second point of error is overruled.
        The judgment of the trial court is affirmed.
 
 
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
 
DO NOT PUBLISH
Tex. R. App. P. 90
 
881504.U05
 
 
File Date[11-16-89]
File Name[881504]