My friend who is a felon from 1982 bought some items (fishing poles ect) from someone at the car wash. He had also bought other items from t...

Question

My friend who is a felon from 1982 bought some items (fishing poles ect) from someone at the car wash. He had also bought other items from this same individual. My friend sold some of the items to a pawn shop. He was later charged with burg. of a building. After he was bonded out the local police we so mad that they charged him again with another item that he had sold but charged him with burg. of a hab. I drove by the address on the report and the burg. of a hab. is a detached garage. Approx. 20+ ft from the house. The report repeats over and over that the garage is attached. Will this stick as a burg of a habitation or should they all be burg. of a building which is a state jail felony and the hab. is a 2nd degree felony as it is charged. He has a court app. lawyer that doesn't seem to want to help him. Because of his past record in the 80's the police are trying to send him back to prison. None of these charges were burglaries, he bought the items from someone. Please advise.

Answer

This is case law and supports charging him with burglary: Where there is independent evidence of a burglary by someone, the unexplained possession of recently stolen property will support an inference of guilt of the offense in which the property is stolen. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983); Taylor v. State, 921 S.W.2d 740, 744 (Tex. App.--El Paso 1996, no pet.). In order to warrant an inference of guilt from the evidence of possession alone, such possession must be personal, recent, and unexplained, and must involve a distinct and conscious assertion of the right to the property by the defendant. Jackson v. State, 645 S.W.2d 303, 306 (Tex. Crim. App. 1983); Grant v. State, 566 S.W.2d 954, 956 (Tex. Crim. App. 1978); Vela v. State, 771 S.W.2d 659, 661 (Tex. App.--Corpus Christi 1989, pet. ref'd). If the defendant explains his possession of the property, the record must demonstrate that the explanation is false or unreasonable. Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977); Taylor, 921 S.W.2d at 744.

With regard to the garage, case law says: An unattached garage is a "structure appurtenant to" a residence and, therefore, is within the statutory definition of "habitation." Darby v. State, 960 S.W.2d 370, 371-72 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd); Jones v. State, 690 S.W.2d 318, 319 (Tex. App.--Dallas 1985, pet. ref'd).

The bottom line is that if you friend did not immediately tell police that he bought the stuff from someone at the carwash, then he can be convicted of the burglary, and the unattached garaged (doesn't matter what the report says) is considered part of the habitation.