“The fact that the electrical plug had been removed from the electrical outlet demonstrates that the plug had to be moved interiorly as to the place of business thereby constituting an intrusion and an entry.”
How later courts described this case
- “The fact that the electrical plug had been removed from the electrical outlet demonstrates that the plug had to be moved interiorly as to the place of business thereby constituting an intrusion and an entry.”
Written by the judges who cited it.
The opinion
BURGESS, Justice,
concurring.
I concur in the result. The majority expends a great deal of time and effort convincing themselves, and the readers, that the object which was stolen became a physical object attached to the body, thus an extension of the thief/burglar’s arm, therefore the legal definitions of intrude and entry were met. This exercise was unnecessary and makes bad law. There is ample evidence to support the conviction without resorting to this analysis. The majority quotes directly from the record where Officer Oliphant testified, without objection, to his belief that someone’s hand or arm went into the building. The majority could have affirmed the conviction on this testimony alone.
Under the majority’s theory, a theft automatically becomes a burglary anytime the theft is of an object which is partially outside a building and partially inside a building. Our Court of Criminal Appeals has said: “Stealing a mailbox or a window shutter attached to the side of a house would not be entry so as to constitute burglary.” Griffin v. State, 815 S.W.2d 576, 579 (Tex.Crim.App.1991). Not necessarily! If the shutter thief is so unlucky that the shutter is attached with screws sufficiently long to penetrate through, that is, the screw is both outside and inside the building, then, under this decision, the removal of the screw makes the thief a burglar. If the shutter thief removes a brass “peep hole” from the front door by prying it from the outside — a burglary. Entry has been defined as an intrusion into, Id. at 579 . Only now can an intrusion result from a removal of the object itself. The majority is quite clear and definite that they are not relying upon any object other than the stolen air conditioner as the physical object attached to the body. This is not a crow-bar, screwdriver, pry-bar, knife, stick, auger, drill or any other burglar tool case. This could have been a simple “hand or arm” in the building case. The majority chose not to treat it as such. Therefore, I must simply concur in the result.