Finding myself in disagreement with the majority members of the panel, I respectfully file my dissent. Appellant appeals his two judgments of conviction for the offense of burglary of a building with intent to commit theft. Appellant waived his right to a jury trial and entered a plea of not guilty to the Court. The Court found appellant guilty on both counts and after finding the one enhancement paragraph, under each count, to be true, assessed punishment at twenty (20) years confinement in the Institutional Division of the Texas Department of Criminal Justice on each count. I would reverse the trial court's judgment and order a judgment of acquittal.
Appellant was convicted of two counts of burglary of the same alleged "building." One burglary on August 7, 1991, and another burglary on September 27, 1991.
I would sustain appellant's first point of error where he contends there was insufficient evidence to prove the structure he entered was a "building" for the purposes of TEX.PENAL CODE ANN. § 30.01(2) (Vernon 1974). Section 30.01(2) defines "building" as "any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use." "Enclosure" is defined in Black's Law Dictionary as being "surrounded by some visible obstruction." See Craner v. State, 778 S.W.2d 144, 145 (Tex.App. *Page 596 — Texarkana 1989, no pet.). Appellant argues that at the time of the alleged entries, the structure had an opening with no way of being closed.
The structure in this case was described as the mailroom of an apartment complex. At the time of the alleged burglary, the room had an open passageway without a door or gate, as depicted in the photographs introduced at trial. The testimony revealed that a person could walk off the street and though an open archway right into the mailroom. One would not have to walk through any type of closed or locked door. There were no signs posted saying that only residents of the apartment complex were allowed in the location of the mailroom, or that it was not open to the public.
In the instant case the structure, as depicted in State's Exhibits 1, 3, and 4, had three walls and a roof and contained the mailboxes for the apartment complex's residents. At the time of the alleged entries, the structure had an opening with no way of being closed. This structure was open and unenclosed on both August 7, 1991, and September 27, 1991; the dates of the two alleged burglaries. The structure was designed for no other reason than to provide the residents a place to go, in order to check their mail. Additionally, it cannot be claimed that this open structure was designed for the security of its contents or any occupants. The structure did not serve the purpose of protecting the mailboxes, because the evidence revealed that the mailboxes were built with, and protected by, specially designed locks.
The structure at issue was not enclosed because it existed in a condition which allowed unrestricted in and out movement. Other than providing cover for those checking their mail, there was no "use" for the structure to bring it within the definition of "building" as set out in the Penal Code.
The Court of Criminal Appeals held that a similar structure was not a "building" within the terms of section 30.01, and reversed the conviction for insufficient evidence. Day v.State, 534 S.W.2d 681 (Tex.Crim.App. 1976). The openings or passageways in Day were permanent, and had been designed without any way of closing them. There had never been any doors on the openings. Here, the structure was similarly designed without any way of closing the area. There were no doors attached to the opening on the dates of the alleged offenses.
Based on the evidence before the trial court, a reasonable trier of fact could not have found that the mailroom was an enclosed structure for the purposes of burglary. See Solizv. State, 794 S.W.2d 110, 112 (Tex.App. — Houston [1st Dist.] 190, pet. ref'd). I would find that the evidence is insufficient to show that appellant entered an enclosed structure and that he therefore, was not guilty of burglary. I would sustain appellant's first point of error.
Accordingly, I would reverse appellant's conviction and order he be acquitted.