Charles Moore v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-95-247-CR

CHARLES MOORE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 95-281-C

O P I N I O N

A jury convicted appellant, Charles Moore, of burglary of a building. Tex. Penal Code Ann. 30.02(a)(1) (Vernon 1994). The same jury, pursuant to the Texas habitual offender statute, assessed punishment at 80 years' incarceration in the Institutional Division of the Texas Department of Criminal Justice. Moore appeals, alleging four points of error: (1) the trial court erred in denying his request for a hearing on a motion in limine to determine the relevancy and prejudicial effect of a pocketknife found at the crime scene; (2) the trial court erred in admitting a picture of the pocketknife into evidence; (3) the trial court erred in denying Moore's motion for new trial based upon a prejudicial statement made by a witness; and (4) the trial court erred in allowing Moore to be sentenced under the habitual offender statute.

On December 24, 1994, responding to a report of a burglary in progress, police officers arrived at Maureen's Antique Shop, which is located on the corner of Columbus Avenue and 26th Street in Waco. Inside the building, police officers found and arrested appellant, Charles Moore. Upon further inspection of the premises, police officers found that a front window had been broken and its screen cut. They also discovered a broken window in the bathroom which itself was in disarray. Moore was indicted for burglary of a building and was found guilty of the offense. Moore's punishment was enhanced with two prior felony convictions, both for burglary of a building.

In his first point of error, Moore contends the trial court erred in denying his request for a hearing on his motion in limine requesting that a pocketknife found in the burglarized building be excluded from the evidence. Moore maintains the trial court should have held a hearing to determine the relevancy of the pocket knife, Tex. R. Crim. Evid. 401, 402, and to determine whether the prejudicial effect of admitting the pocketknife into evidence substantially outweighed its probative value. Tex. R. Crim. Evid. 403. Other than these assertions, Moore has provided no argument or authority in support of his position that the trial court was obligated to hold a hearing on the admissibility of the pocketknife under Rules 401, 402 and 403 of the Rules of Criminal Evidence. Tex. R. Crim. Evid. 401, 402, 403. Therefore, we consider this issue inadequately briefed and as presenting nothing for review. Tex. R. App. P. 74(f); Penry v. State, 903 S.W.2d 715, 760 (Tex. Crim. App.), cert. denied, U.S. , 116 S. Ct. 480 (1995); Robinson v. State, 851 S.W.2d 216, 222 n.4 (Tex. Crim. App. 1991), cert. denied, U.S. , 114 S. Ct. 2765 (1994). Moore's first point is overruled.

In his second point of error, Moore contends the trial court erred in admitting a photograph of the pocketknife into evidence because there had been no evidence introduced to connect the pocketknife to him. A photograph is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Penry, 903 S.W.2d at 751 (quoting Tex. R. Crim. Evid. 401). Determining the admissibility of photographs is left solely to the trial court, and we will not disturb that ruling absent an abuse of discretion. Id.

To prove that a burglary of a building has been committed, the State must show that a person, intentionally or knowingly, entered a building without the effective consent of the owner in order to commit a felony or theft. Tex. Penal Code Ann. 30.02(a)(1); Davilla v. State, 547 S.W.2d 606, 608 (Tex. Crim. App. 1977). The facts (1) that a window screen had been cut with a sharp object and the window broken; (2) that an opened pocketknife was found inside the building; (3) that according to the owners of the building, the pocketknife had not been there when they left the antique shop that day; and (4) that Moore was arrested inside the building combine to make the proposition that Moore used the knife in an attempt to burglarize the building more probable than it would be without the photograph of the knife. We find the trial court did not abuse its discretion in finding the photograph of the knife relevant and admitting it into evidence. Moore's second point is overruled.

In Moore's third point of error he alleges the trial court erred in denying his motion for a mistrial. On appeal, Moore contends that a statement made by Sergeant Dennis Tynes during his testimony was "highly prejudicial" and "poisoned the minds of the jury." However, we need not address the merits of Moore's argument.

On appeal, "the point of error must correspond to the objection made at trial." Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); Webb v. State, 899 S.W.2d 814, 819 (Tex. App. Waco 1995, no pet.); see also Tex. R. App. P. 52(a). At trial, Moore's objection to Sergeant Tynes' statement was "nonresponsive." On appeal, Moore contends that the statement was prejudicial. Because Moore's point of appeal does not comport with his trial objection, we find that Moore failed to preserve his complaint for review. Broxton, 909 S.W.2d at 918; Webb, 899 S.W.2d at 819.

Furthermore, Moore cited no authority for his contention that Sergeant Tynes' statement was prejudicial. Because this point of error is inadequately briefed, we find that it presents nothing for review. Tex. R. App. P. 74(f); Penry, 903 S.W.2d at 760; Robinson, 851 S.W.2d at 222 n.4. Moore's third point is overruled.

In his fourth point of error, Moore argues that the trial court erred in allowing his sentence to be imposed under the habitual offender statute // instead of the state jail felony statute. Tex. Penal Code Ann. 12.35(a) (Vernon 1994). Moore was convicted of burglary of a building, which is a state jail felony. Tex. Penal Code Ann. 30.02(c)(1) (Vernon 1994). The Court of Criminal Appeals has expressly held that state jail felonies cannot be enhanced under section 12.42(d). Mancuso v. State, 919 S.W.2d 86, 89 (Tex. Crim. App. 1996). Therefore, we sustain Moore's fourth point of error.

Moore's conviction is affirmed but his sentence is reversed and the cause remanded for a new punishment hearing.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed in part; reversed in part and remanded

Opinion delivered and filed November 6, 1996

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