# Harris v. State

> Court of Criminal Appeals of Texas · September 14, 1983 · 656 S.W.2d 481

URL: https://www.frixlaw.com/law-library/cases/9763294

## Case

- **Full name:** Arthur Ross HARRIS, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 14, 1983
- **Citations:** 656 S.W.2d 481; 1983 Tex. Crim. App. LEXIS 1139
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Davis, Clinton, Odom, Teague
- **Cited by:** 407 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763294

## How later opinions describe it (automated extraction)

- holding that appellant's complaint that the trial court erred in overruling his motion to suppress evidence obtained as a result of illegal seizures was rendered moot when State offered complained of evidence and defense counsel affirmatively stated "no objection"
- holding that appellant's complaint that trial court erred in overruling his motion to suppress evidence obtained as result of illegal seizures was rendered moot when State offered complained of evidence and defense counsel affirmatively stated "no objection"
- holding that where there is independent evidence of a burglary, unexplained possession of recently stolen goods is an additional circumstance of guilt which may, in combination, constitute sufficient evidence of guilt to support a conviction
- holding that, if trial counsel expressly states "no objection" to admissibility of evidence challenged in a prior motion to suppress or evidentiary hearing, error would not be preserved and is waived
- holding that punishments falling within prescribed statutory limitations are not cruel and unusual within the meaning of the Texas Constitution

## Opinion text

CLINTON, Judge,
dissenting.
The evidence is sufficient to exclude every reasonable hypothesis other than that appellant committed the burglary of Eric Scott Rogers’ van. The burglary of Woody’s Restaurant, however, is another matter.
The statute under which appellant was prosecuted in Cause No. 65,763, V.T.C.A. Penal Code, § 30.02, provides in 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....” 1
This provision was adopted in substance by the Legislature without modification from § 30.02 of the Texas Penal Code, A Proposed Revision, State Bar Committee on Revision of the Penal Code, (Final Draft 1970).
“As in present law, ... one who, with intent to commit a felony or theft, enters a building open to the public or otherwise has consent to enter, such as a servant .. ., commits no burglary and can be prosecuted only for the commission or attempted commission of the offense he intended, unless he remains concealed after consent to his presence has terminated. Private offices and other portions of a building not open to the public are covered, however; one who enters a storeroom closed to the public in a store otherwise open to the public (with the requisite intent) commits a burglary." Id., Committee Comment, at 203.
In the instant case, the State established Woody’s Restaurant was open for business *487 from 6:00 p.m. to midnight on the night in question, but the delivery room — where Zoubi saw appellant at approximately 11:45 p.m. — was not open to the public. Further, Zoubi testified as follows:
“Q: What is this room right here (indicating)?
A: That’s my office.
Q: Okay, and is that always locked? A: Yes, sir.
Q: Is that open to the public?
A: No.
Q: Ever?
A: No, never.
Q: And is this area [delivery room] right here (indicating) open to the public?
A: Until 1:00 o’clock in the afternoon.
Q: Until 1:00 o’clock in the afternoon?
A: Not to the public, though, to the delivery man. He will knock on the door and we will open the door for him.
Q: Okay. In other words, this area (indicating) leading in from the service door and going back towards the kitchen is not open to the public at any time, is that correct?
A: Correct.”
From this testimony it may be seen that the State established Woody’s Restaurant was open to the public, but the portion of Woody’s appellant entered was not so open. Coupled with proof of appellant’s intent to commit theft, the evidence was adequate to establish a burglary proscribed by law.
But the indictment returned against appellant alleged that he did:
“. .. knowingly and intentionally enter a building not then and there open to the public, without the effective consent of Abdel G. Zoubi, the owner thereof, with intent to commit theft... .” 2
Because the evidence adduced established the building containing Woody’s was open to the public, we ought to hold it is insufficient to support the jury’s verdict of “guilty” in Cause No. 65,763. 3 I respectfully dissent.
ODOM and TEAGUE, JJ., join.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. In authorizing the jury to return a verdict of guilty in this cause, the trial court conformably instructed:
“Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Arthur Ross Harris, did, ... knowingly or intentionally enter a building not then and there open to the public, without the effective consent of Abdel G. Zoubi, the owner thereof, with intent to commit theft, you will find the defendant guilty.”
. The majority puts too much misplaced reliance in Williams v. State, 537 S.W.2d 936 (Tex.Cr.App. 1976). The opinion in that case does indeed set out pertinent parts of both the indictment and charge to the jury at page 939; from there we learn that the latter instructed the jury that one element of the offense of burglary is entry of “a building (or any portion of the building) not then open to the public.” That was not done in the instant cause, see note 2 ante, so factual finding of the jury is that Zoubi’s building was “not then and there open to the public” — yet the undisputed evidence is that in truth it was so open.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763294. Public record. Not legal advice.