Ex parte Prestridge
| Decision Date | 15 October 1980 |
| Docket Number | No. 64929,64929 |
| Citation | 605 S.W.2d 922 |
| Parties | Ex parte Johnny PRESTRIDGE. |
| Court | Texas Court of Criminal Appeals |
This is an application for a writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.
Petitioner was convicted of the offense of burglary of a building on November 15, 1978, in Cause No. 18,772A in the 47th District Court of Potter County. Punishment, assessed at imprisonment for four years, was probated. Subsequently probation was revoked, and sentence imposed.
Petitioner urges that the indictment in this cause is fundamentally defective. We agree and grant relief.
The elements of the offense of burglary of a building under V.T.C.A. Penal Code, § 30.02(a)(1) are:
(1) a person
(2) without the effective consent of the owner
(3) enters a building (or any portion of a building) not then open to the public
(4) with the intent to commit a felony or theft (emphasis added)
See Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975); Garcia v. State, 571 S.W.2d 896 (Tex.Cr.App.1978).
The indictment in this case alleged that petitioner: "with intent to commit theft, (broke) and enter(ed) a building, without the effective consent of Ralph Olmsted, the owner."
It is essential to the offense of burglary of a building that the building entered not be open to the public. See the emphasized portion of element three, above. The indictment is fundamentally defective for failing to allege that the building entered was not then open to the public. Compare Garza v. State, 522 S.W.2d 693 (Tex.Cr.App.1975); Johnson v. State, 537 S.W.2d 16 (Tex.Cr.App.1976).
Relief is granted. The conviction and indictment in Cause No. 18,772A are set aside. Petitioner is ordered released from confinement as a result of that conviction.
It is so ordered.
The dissenting position-though not its rationale 1-has its appeal until one carefully examines the variety of burglary offenses structured by the Legislature in V.T.C.A. Penal Code, § 30.02. For present purposes we need only look at two pertinent parts of subsections, viz :
Distinguishing characteristics of the first and third modes of committing burglary are at once apparent. The vice seen by the Legislature in the formulations is not merely entry, although that is certainly an essential element. The evil sought to be condemned is concomitant conduct. 3 Thus, though intruding any part of one's body or any physical object connected with it, id. Subsection (b), is conduct, for obvious reasons the Legislature did not denounce that initial conduct even when coupled with specific intent to commit a felony or theft unless that entry was made into a building "not then open to the public."
Viewed in this light, I am satisfied the element omitted in the instant indictment is, indeed, an essential element of the type of burglary offense proscribed by § 30.02(a)(1), which is what was sought to be alleged here. The indictment, then, fails to allege an offense prescribed by the Legislature and is, therefore, fatally defective. So, on this basis I concur in the judgment of the Court.
The majority reverses this conviction by holding the indictment to be fundamentally defective for its failure to allege that Prestridge entered a building not then open to the public.
Article 21.17, V.A.C.C.P., states the guidelines for determining when the specific statutory language must be used:
"Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words."
The indictment in the case at...
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Bartley v. State
...offense under sections 30.02(a)(2) and (a)(3). Waller v. State, 648 S.W.2d 308, 310 (Tex.Crim.App.1983) (overruling Ex parte Prestridge, 605 S.W.2d 922 (Tex.Crim.App.1980) to the extent of conflict).2 We note, however, that conviction of an offense properly included within a charged offense......
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Waller v. State
...trial court nor on appeal, we are confronted with an indictment which is fundamentally defective under our holding in Ex parte Prestridge, 605 S.W.2d 922 (Tex.Cr.App.1980). In that case, in which there was a collateral attack on the judgment, we held that the indictment was fundamentally de......