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
DOUGLAS, Judge
(dissenting).
On June 27, 1974, the applicant was convicted for the offense of burglary of a habitation. He did not appeal. He filed his application for a writ of habeas corpus in the court where he was convicted alleging that the indictment was fundamentally defective because it did not allege a culpable mental state in that it was not alleged that the offense was committed willfully, knowingly or intentionally as provided for in V.T.C.A. Penal Code, Section 6.02(d). The hearing judge concluded that this was waived because no such contention was made during the trial.
Additionally, it is now contended that the indictment is fundamentally defective because there is no allegation that the entry into the building was made “with intent to commit a felony or theft.”
The indictment, omitting the formal parts, is as follows:
“. . . 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. . . .”
The allegation in the indictment sufficiently alleges that Cannon entered the habitation without the effective consent of the owner. Construing the entire sentence, it also alleges that he intended to exercise control of Smith’s property without consent. This is sufficient under V.T.C.A. Penal Code, Section 31.03, which defines one form of theft as occurring when one “exercises control over the property, without the owner’s consent.” However, this construction is not essential.
The offense is substantially alleged so that an accused is apprised of such offense charged; he cannot in the absence of a motion to quash or an exception to the pleading raise the question by a collateral attack upon the pleading. See American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). In the present case, one reading the indictment can see that the offense charged is that of entering a habitation without the owner’s consent and with the intent to exercise control of the owner’s property.
The pro se contention of Cannon that the indictment is fundamentally defective because no culpable mental state is alleged should be overruled for the same reasons discussed above. The indictment substantially charges him with the offense of burglary with intent to commit theft. He has not complained to this date that he did not know what he was charged with or that he did not have sufficient notice under the indictment so that he could prepare his defense. Absent a timely exception or motion to quash the indictment, the matter should not now be considered. See American Plant Food Corporation v. State, supra, and Vaughn v. State, 530 S.W.2d 558 (Tex.Cr.App.1975).
The relief sought should be denied.