burglary indictment which did not allege entry with intent to commit “theft,” instead alleging entry with intent to commit the requisite elements of theft, but which left out one element thereof, did not allege an offense, and therefore could not support conviction for burglary
How later courts described this case
- burglary indictment which did not allege entry with intent to commit “theft,” instead alleging entry with intent to commit the requisite elements of theft, but which left out one element thereof, did not allege an offense, and therefore could not support conviction for burglary
- indictment that failed to allege facts to constitute all elements of offense was fundamentally defective, void and subject to attack in application for writ of habeas corpus
- indictment that failed to allege facts to constitute all elements of offense was fundamentally defective and void
- burglary indictment may set out the constituent elements of the intended theft or felony
Written by the judges who cited it.
The opinion
OPINION
ONION, Presiding Judge.
This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.
Petitioner was convicted of the offense of burglary of a habitation on his plea of guilty before the court, and assessed a five year term of imprisonment on June 27, 1974. No appeal was perfected in the cause.
Petitioner filed his application for writ of habeas corpus with the trial court alleging that his indictment in this case was fundamentally defective because it did not contain allegations in the state’s pleading that appellant “willfully, knowingly, and intentionally” committed said offense. In other words, petitioner’s pro se complaint charged that the indictment failed to allege a culpable mental state. See V.T.C.A. Penal Code, Sec. 6.02(d). The trial court denied the writ, finding that petitioner had waived any complaint to the indictment since no objection had been raised at trial.
In addition to petitioner’s pro se complaint that the indictment fails to allege a culpable mental state, petitioner’s attorney has filed a brief which also points out that this indictment for burglary of a habitation fails to allege that the entry onto the premises was accomplished “with the intent to commit a felony or theft.” See V.T.C.A. Penal Code, Section 30.02(a)(1).
Initially, we note that if the indictment in the case at bar is fundamentally defective, so as not to charge an offense against the laws of Texas, said indictment may be challenged in a post-conviction ha-beas corpus case. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975). The indictment in the present case reads as follows, to-wit:
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS, the Grand Jurors, good and lawful men of the County of Dallas, duly elected, tried, empaneled, sworn and charged to inquire of offenses committed within the body of said Dallas County, upon their oaths do present in and to the 203RD JUDICIAL District Court,_of Dallas, County, at the JANUARY Term, A.D., 1974, that one,
JAMES EARL CANNON
hereinafter styled Defendant, on or about the 23 day of April in the year of our Lord One Thousand Nine Hundred and 74 in the County and State aforesaid, did unlawfully, then and there, with intent to exercise control over the property of Robert N. Smith, enter a habitation without the effective consent of Robert N. Smith, the said owner.
It is obvious that the above-mentioned indictment fails to allege that petitioner entered the habitation “with the intent to commit a felony or theft”. The allegation in the indictment that the petitioner intended to “exercise control over the property” is not sufficient to allege the crime of theft. Under V.T.C.A. Penal Code, Section 31.03, theft is defined, for our purposes, as occurring when a person “exer *268 cises control over the property, without the owner’s effective consent.”
The indictment in the case at bar, if read in its logical order, alleges that appellant “unlawfully entered a habitation without the effective consent of Robert N. Smith, the said owner, with the intent to exercise control over the property of Robert N. Smith”. Read in this logical fashion, the indictment does not allege that the appellant intended to “exercise control over the property without Robert N. Smith’s consent” which would be necessary to allege theft under V.T.C.A. Penal Code, Section 31.03. See Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975). The intent with which entrance was made is an essential element of the offense of burglary and therefore must be pled and proved. See Lowe v. State, 163 Tex.Cr.R. 578 , 294 S.W.2d 394 (1956); Marquis v. Benfer, 298 S.W.2d 601 (Tex.Civ.App. — San Antonio 1956, writ ref’d n. r. e.); Green v. State, 437 S.W.2d 558 (Tex.Cr.App.1969). See also Williams v. State, 505 S.W.2d 838 (Tex.Cr. App.1974); Worthington v. State, 469 S.W.2d 182 (Tex.Cr.App.1971).
The indictment being fundamentally defective, and not alleging an offense against the laws of Texas, same is insufficient to support a conviction, and therefore this conviction is void. See Standley v. State, supra; Ex parte Roberts, supra.
Petitioner’s pro se complaint that the indictment fails to allege a culpable mental state need not be reached at this time since the indictment is fundamentally defective for other reasons.
The petition for writ of habeas corpus is granted, and the indictment in trial court cause number C-74-5617-PK is hereby dismissed, and petitioner is ordered released from custody.
It is ordered.