Molenda v. State

• Decision Date: 18 June 1986
• Docket Number: No. 416-84,416-84
• Citation: 715 S.W.2d 651
• Parties: Robert Earl MOLENDA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 651

715 S.W.2d 651

Robert Earl MOLENDA, Appellant, v. The STATE of Texas, Appellee.

No. 416-84.

Court of Criminal Appeals of Texas,

En Banc.

June 18, 1986.

Douglas M. Barlow, Beaumont, for appellant.

James S. McGrath, Dist. Atty. and R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant pleaded guilty before the court to the offense of attempted burglary of a building. The court assessed punishment at confinement for ten years. The Beaumont Court of Appeals agreed with appellant that the indictment charging the offense was fundamentally defective "in that the facts alleged do not constitute the offense of attempted burglary." Molenda v. State, 715 S.W.2d 651 (Tex.App.--Beaumont, 1984). The State filed a petition for discretionary review contending that the Court of Appeals ignored McCravy v. State, 642 S.W.2d 450 (opinion on rehearing) (Tex.Cr.App.1982) in reviewing the facts alleged in the indictment charging attempted burglary. The State contends the facts alleged in the indictment are sufficient to charge attempted burglary.

The indictment alleged that appellant:

did then and there attempt to enter a building ... by prying a lock off of a fence surrounding said building with a screwdriver....

V.T.C.A. Penal Code, § 30.02, defines the offense of burglary in pertinent part:

(a) A person commits an offense if, without the effective consent of the owner, he:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; ....

V.T.C.A. Penal Code, § 15.01, defines the offense of criminal attempt in pertinent part:

(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.

In McCravy, supra, we held that under § 15.01, a required element of the offense of attempted burglary that must be alleged in the indictment is that the appellant does an act amounting to more than mere preparation that tends but fails to effect the commission of the burglary intended. This required element may be alleged in the indictment by stating either the aforementioned statutory phrase from § 15.01 or by alleging facts "which adequately show that the act is of that character." McCravy, supra, at 459. The recommended practice is to track the statutory language rather than to allege facts, precisely to avoid the problem presented in the instant case.

As in McCravy, supra, the issue presented in the instant case is whether the facts alleged in the indictment sufficiently allege an act amounting to more than mere preparation that tends but fails to effect the commission of the burglary intended.

The Court of Appeals stated that "[t]he gravamen of the offense of burglary is the 'entry' into a building," and that "an attempted burglary of a building, with the required intent, must be an attempt of actual entry into the building. The mere 'prying a lock off of a fence surrounding' the building is insufficient to allege an attempt of actual entry into the building."

Although the result is correct, this language in the Court of Appeals' opinion is somewhat limiting. McCravy, supra, in the opinion on rehearing, noted that acts which "tend to intrude" are not necessarily required. An accused could be convicted as long as the alleged acts "tended to effect the...