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Coleman v. State

Court of Criminal Appeals of Texas, Panel No. 3
Dec 17, 1980
608 S.W.2d 923 (Tex. Crim. App. 1980)

Summary

concluding that the defendant broke in "by intruding . . . into [a pickup] truck bed" and that "it was not incumbent upon the State to prove . . . that entry must have been into the cab portion of the vehicle"

Summary of this case from Certain Underwriters at Lloyds, London v. Law

Opinion

No. 65628.

December 17, 1980.

Appeal from the 182nd Judicial District Court, Harris County, Lee Duggan, Jr., J.

Barry J. O'Keefe, Humble, for appellant.

John B. Holmes, Jr., Dist. Atty., James C. Brough, and Eric Hagstette, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before PHILLIPS, ODOM and ROBERTS, JJ., and QUENTIN KEITH C.


OPINION


The appeal is from an order revoking probation. On September 7, 1979, after compliance with all procedural requirements, appellant pleaded guilty to the court to the offense of receiving stolen property. His punishment was assessed at confinement for six years but imposition of sentence was suspended and he was placed on probation, one of the conditions being that he commit no offense against the laws of this State.

On January 3, 1980, a motion to revoke probation was filed charging that appellant, on December 13, 1979, did, with intent to commit theft, break and enter an "automobile" owned by one Sylvester Hatter without the effective consent of the owner.

A single question is presented by the two grounds of error brought forward: Is a pickup truck an automobile? There is no dispute in the record. Hatter's vehicle was a pickup truck and appellant was in the flatbed portion thereof engaged in removing a compressor from the truck. He was positively identified by Hatter. A neighbor across the street saw a man remove another compressor from Hatter's truck, place it in an automobile and drive away. When he returned, the neighbor removed the keys from the car. Appellant's wallet was found in the car.

State's counsel readily concedes that when the commission of an offense is alleged as the basis for probation revocation, the State must prove every element of the offense. See, e. g., Grant v. State, 566 S.W.2d 954, 956 (Tex.Cr.App. 1978). And, such proof of the allegations must be made by a preponderance of the credible testimony. Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Cr.App. 1974).

There being no hint of other error in the revocation proceedings, we now proceed to a determination of the single question presented.

One Texas court has held that the word "automobile" is a generic term which includes a vehicle known as a pickup truck. Maryland American General Ins. Co. v. Ramsay, 526 S.W.2d 138, 140 (Tex.Civ.App.-Corpus Christi 1975), rev'd on other grounds, 533 S.W.2d 344 (Tex. 1976). In addition to the cases cited by the intermediate court in Ramsay, supra, see Hartford Accident Indemnity Corp. v. Lowery, 490 S.W.2d 935, 939 (Tex.Civ.App.-Beaumont 1973, writ ref'd n. r. e.).

The State established beyond a reasonable doubt that appellant entered the pickup truck by intruding his entire body into the truck bed and that he did so with intent to commit theft. The pickup truck being an automobile, it was not incumbent upon the State to prove, as appellant apparently contends, that entry must have been into the cab portion of the vehicle. Proof of an offense under the terms of V.T.C.A., Penal Code, Sec. 30.04(a) and (b) was made by the State.

The judgment of the trial court is affirmed.

Opinion approved by the panel.

ODOM, J., dissents.


Summaries of

Coleman v. State

Court of Criminal Appeals of Texas, Panel No. 3
Dec 17, 1980
608 S.W.2d 923 (Tex. Crim. App. 1980)

concluding that the defendant broke in "by intruding . . . into [a pickup] truck bed" and that "it was not incumbent upon the State to prove . . . that entry must have been into the cab portion of the vehicle"

Summary of this case from Certain Underwriters at Lloyds, London v. Law

In Coleman, this Court held that a person who removes property from the open bed of a pickup truck "enters" the vehicle and thereby commits burglary under § 30.04.

Summary of this case from Richardson v. State

In Coleman v. State, 608 S.W.2d 923, 924 (Tex.Crim.App. 1980), the defendant contended, as does the appellant here, that removing a compressor from the bed of a pickup truck did not amount to a burglary of a vehicle.

Summary of this case from Richardson v. State

In Coleman v. State, 608 S.W.2d 923 (Tex.Crim.App. 1980) (Commissioner's decision), the Court of Criminal Appeals was faced with the issue now before us. The question for the court was whether the State had shown that the defendant had violated parole by committing the offense of burglary of a vehicle when he removed a compressor from the bed of a pickup truck.

Summary of this case from Smith v. State
Case details for

Coleman v. State

Case Details

Full title:Rickie Leon COLEMAN, Appellant, v. The STATE of Texas, Appellee

Court:Court of Criminal Appeals of Texas, Panel No. 3

Date published: Dec 17, 1980

Citations

608 S.W.2d 923 (Tex. Crim. App. 1980)

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To establish burglary of a vehicle, the State need not prove that appellant entered the passenger compartment…

Smith v. State

Id. In Coleman v. State, 608 S.W.2d 923 (Tex.Crim.App. 1980) (Commissioner's decision), the Court of Criminal…