DeVaughn v. State

Decision Date13 April 1988
Docket NumberNo. 1062-84,1062-84
Citation749 S.W.2d 62
PartiesLernard DeVAUGHN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

David K. Chapman (court appointed), Fort Worth, Mark Stevens, San Antonio, for appellant.

Sam D. Millsap, Jr., Dist. Atty., and Edwin E. Springer, Edward Coffey and Edward F. Shaughnessy, III, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Following his plea of not guilty, a jury convicted appellant of the first degree felony offense of burglary of a habitation, as proscribed by V.T.C.A. Penal Code, § 30.02(a)(3). Punishment was assessed by the trial court at ten years confinement in the Texas Department of Corrections. The Court of Appeals for the Fourth Supreme Judicial District reversed appellant's conviction and remanded the cause to the trial court. DeVaughn v. State, 678 S.W.2d 143 (Tex.App.--San Antonio 1984).

The State petitioned this Court for discretionary review of the holding by the court of appeals that, upon timely request for additional specificity by means of a motion to quash, an indictment for burglary which alleges that the accused attempted to commit theft and actually committed theft must provide a description of the item or items which were taken and state the name of the owner of those items. Considering this an important issue of state law which has not been, but should be, settled by this Court, we granted review. Tex.R.App.P., Rule 200(c)(2).

The indictment in appellant's case read, in pertinent part, as follows:

"... on or about the 7th day of August, A.D., 1982, Lernard DeVaughn did then and there intentionally and knowingly enter a habitation which is located in the general vicinity of the 7400 block of Hidden Oak, Live Oak, Bexar County, Texas, and therein attempted to commit and committed theft, without the effective consent of Joyce Ernest, the owner of said habitation...." 1

Appellant timely filed a motion to quash, which contained the following in Paragraph III:

"The defendant takes exception to the indictment in this cause in that the document fails to allege and therefore fails to inform the defendant as to the elements of theft and attempted theft in that there is no allegation of:

(a) The property which was stolen or attempted to be stolen.

(c) [sic] The owner of the stolen property or the property which was attempted to be stolen.

(d) That the said property was taken without the effective consent of the owner of the property.

(e) The manner in which such consent was not effective as to the owner of the property.

(f) That such property was appropriated by the defendant with the intent to deprive the owner of such property.

(g) The value of the property which was stolen or attempted to be stolen.

(h) That the same was committed with a culpable mental state."

The court of appeals concluded that "certain factual elaborations sought by (appellant's) motion to quash were information to which he was entitled upon his timely requests therefor." DeVaughn v. State, supra at 149. Specifically, the court held that appellant was entitled to "notice as to which property was allegedly taken or attempted to be taken" and to "be given the name of the individual from whom he appropriated or attempted to appropriate the property." Id. The court concluded that the remaining items in appellant's motion to quash were "not matters of adequate notice and would not assist (appellant) as a bar to a subsequent prosecution of the same offense." Id. In so doing, the court of appeals quoted extensively from this Court's opinion on original submission in Ortega v. State, 668 S.W.2d 701 (Tex.Cr.App.1983), an opinion which the State describes in its brief in this cause as "dicta."

The court of appeals also held that appellant was entitled to the information above under the rationale that appellant's motion to quash "entitled him to the allegation of facts sufficient to bar a subsequent prosecution for the same offense." DeVaughn v. State, supra at 151. The State has taken exception with these holdings in its petition for discretionary review.

I. Burglary Generally

There are three distinct ways in which one may commit the offense of burglary under the present version of the Penal Code. 2 First the offense may be committed by intentionally or knowingly 3 entering a building or habitation not then open to the public, without the effective consent of the owner and with the intent to commit a felony or theft. V.T.C.A. Penal Code, § 30.02(a)(1); Gonzalez v. State, 517 S.W.2d 785, 786 (Tex.Cr.App.1975). Second, one may commit burglary by intentionally or knowingly remaining concealed in a building or habitation, without the effective consent of the owner, and with the intent to commit a felony or theft. V.T.C.A. Penal Code, § 30.02(a)(2); Day v. State, 532 S.W.2d 302, 305 (Tex.Cr.App.1976). Finally, one may commit burglary by intentionally and knowingly 4 entering a building or habitation, without the effective consent of the owner, and committing or attempting to commit a felony or theft. V.T.C.A. Penal Code, § 30.02(a)(3); Day v. State, supra; Davila v. State, 547 S.W.2d 606, 608 (Tex.Cr.App.1977). See also, Robles v. State, 664 S.W.2d 91, 94 (Tex.Cr.App.1984). An indictment that fails to allege at least one of these theories is fundamentally defective. Ex parte Oliver, 703 S.W.2d 205, 206 n. 1 (Tex.Cr.App.1986).

It is well settled that the intent to commit a felony or theft must exist at the moment of the entry or there is no offense under § 30.02(a)(1), supra; Lewis v. State, 715 S.W.2d 655, 656 (Tex.Cr.App.1986). It is equally settled that the offense is complete upon the entry; a completed felony or theft is unnecessary. Lewis v. State, supra at 657; Robles v. State, supra at 95 (Clinton, J., concurring). Proof of the intent to commit either theft or a felony was, and is, a necessary element in the State's case. State v. Robertson, 32 Tex. 159 (1869); Collins v. State, 20 Tex.Crim. 197 (1886); Polk v. State, 60 Tex.Crim. 462, 132 S.W. 134 (1910); Farris v. State, 155 Tex.Crim. 261, 233 S.W.2d 856 (1950); Lowe v. State, 163 Tex.Crim. 578, 294 S.W.2d 394 (1956); Greer v. State, 437 S.W.2d 558 (Tex.Cr.App.1969); Ex parte Rogers, 519 S.W.2d 861 (Tex.Cr.App.1975). The same is true of burglary under § 30.02(a)(2), supra.

Thus, the attempted or completed theft or felony required by § 30.02(a)(3), supra, merely supplants the specific intent which accompanies entry in §§ 30.02(a)(1) and (2), supra. Indeed, the Practice Commentary accompanying § 30.02(a)(3), supra, provides in pertinent part as follows:

"Section 30.02(a)(3) includes as burglary the conduct of one who enters without effective consent but, lacking intent to commit any crime upon his entry, subsequently forms that intent and commits or attempts a felony or theft. This provision dispenses with the need to prove intent at the time of the entry when the actor is caught in the act."

Practice Commentary, V.T.C.A. Penal Code, § 30.02, p. 144. The gravamen of the offense of burglary clearly remains entry of a building or habitation without the effective consent of the owner, accompanied by either the required mental state, under §§ 30.02(a)(1) and (2), supra, or the further requisite acts or omissions, under § 30.02(a)(3), supra.

This Court has repeatedly held that an indictment for burglary as set forth in §§ 30.02(a)(1) or (2), supra, is not fatally defective because it fails to allege the owner, value, description, nature, etc., of the property which the accused allegedly intended to steal. 5 See, e.g., Ford v. State, 632 S.W.2d 151 (Tex.Cr.App.1982); Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978); Davila v. State, supra; Faulks v. State, 528 S.W.2d 607 (Tex.Cr.App.1975). The Court has come to the same conclusion regarding claims that failure to allege these facts in an indictment under § 30.02(a)(3), supra, constitutes fundamental error. Davila v. State, supra at 609; Roy v. State, 608 S.W.2d 645, 652 n. 7 (Tex.Cr.App.1980). However, the Court has suggested that a different conclusion may be warranted when the issue is presented in the context of the denial of a timely submitted motion to quash. 6

II. State's Argument

The State's primary argument 7 in this Court is that appellant's case is controlled "not by the dicta in Ortega v. State [668 S.W.2d 701 (Tex.Cr.App.1983) ], but rather by this Court's holding in Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973)." Nichols v. State, supra, urged on us by the State as controlling appellant's case, is inapposite because Nichols involved a conviction for burglary with intent to commit theft, as opposed to burglary by entering and committing theft. As discussed above, the attempted or completed theft or felony, under § 30.02(a)(3), supra, supplants the intent to commit a felony or theft under §§ 30.02(a)(1) or (2), supra.

Additionally, the State invites us to seek guidance in this case from the law of motions to quash as it relates to the offense of robbery. The argument here is that robbery, as set forth in V.T.C.A. Penal Code, § 29.02, is "an assaultive offense which contains an underlying element of criminal conduct; that element is, that the assault occurred while the defendant was 'in the course of committing theft.' " The argument continues with the proposition that, if we adopted the State's interpretation of the court of appeals' opinion, an individual indicted for robbery would be entitled to notice of all of the elements of the underlying offense of theft. The State concludes its argument by noting that this Court has previously held that the elements of the underlying theft in a robbery prosecution are merely evidentiary and need not be pled, citing as authority Hightower v. State, 629 S.W.2d 920 (Tex.Cr.App.1981); Hill v. State, 568 S.W.2d 338 (Tex.Cr.App.1978); Davis v....

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