Tew v. State

• Decision Date: 18 May 1977
• Docket Number: No. 52845,52845
• Citation: 551 S.W.2d 375
• Parties: Harold B. TEW, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 375

551 S.W.2d 375

Harold B. TEW, Appellant, v. The STATE of Texas, Appellee.

No. 52845.

Court of Criminal Appeals of Texas.

May 18, 1977.

Rehearing Denied June 14, 1977.

Kenneth C. Lenoir, Killeen, for appellant.

Joe Carroll, Dist. Atty., and Al W. Schorre, Jr., Asst. Dist. Atty., Belton, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for unlawful possession of a firearm by a felon. V.T.C.A., Penal Code, § 46.05. Punishment was assessed by the court at eight (8) years in the Department of Corrections following a verdict of guilty.

At the outset we are confronted with a fundamentally defective indictment which requires review "in the interest of justice." See Article 40.09, § 13, Vernon's Ann.C.C.P.

V.T.C.A., Penal Code, § 46.05, provides:

"(a) A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.

"(b) An offense under this section is a felony of the third degree."

V.T.C.A., Penal Code, § 6.02, provides as follows:

"(a) Except as provided in Subsection (b) of this section, a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.

"(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

"(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.

"(d) Culpable mental states are classified according to relative degrees, from highest to lowest, as follows:

"(1) intentional;

"(2) knowing;

"(3) reckless;

"(4) criminal negligence.

"(e) Proof of higher degree of culpability than that charged constitutes proof of the culpability charged."

It is clear from a reading of the definition of the offense in said § 46.05 that it does not itself prescribe a culpable mental state, but one is nevertheless required by said § 6.02, supra, unless the definition of the offense "plainly dispenses with any mental element." 3 Branch's Texas Anno. Penal Statutes, 3rd Ed., § 46.05, p. 598 (Explanatory Comment). The definition in said § 46.05, supra, does not plainly dispense with any mental element. See Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976). See and cf. Braxton v. State, 528 S.W.2d 844 (Tex.Cr.App.1975).

Omitting the formal parts, the indictment alleged that the appellant on or about May 27, 1975:

"did possess a firearm, namely a pistol, away from the premises where he lived, and that the said Harold B. Tew had been previously and finally convicted of the offense of Burglary, an act of violence against property, in Cause No. 18,909 in the 169th District Court of Bell County, Texas, on December 3, 1971."

The indictment fails to allege any culpable mental state as required by said § 6.02 and is therefore fundamentally defective. See Ex parte Garcia,544 S.W.2d 432 (Tex.Cr.App.1976); Hazel v. State, supra; Price v. State,523 S.W.2d 950 (Tex.Cr.App.1975); Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976).

An indictment which does not allege an offense against the law is utterly insufficient and any conviction based thereon is void. Ward v. State, 520 S.W.2d 395, 397 (Tex.Cr.App.1975), and cases there cited.

The cause must be reversed and the prosecution ordered dismissed.

In the event of another trial upon another indictment, we call attention to one of appellant's grounds of error. Appellant contends the court erred in charging the jury, over timely objection, with regard to the prior conviction alleged that " burglary is a felony involving an act of violence or threatened violence to a person or property." He contends that whether the prior burglary conviction was such a felony was a fact issue for the jury, and the court charged as a matter of law that burglary is per se such a felony and fell into error in so doing.

Said § 46.05's immediate forerunner was Article 489c, Vernon's Ann.P.C., 1925, as amended. The former statute was directed at weapons which could be concealed on the person and concerned prior felony convictions involving an act of violence. Said § 46.05 expanded the prior law to include all firearms and all prior felony convictions involving "an act of violence or threatened violence." (Emphasis supplied.)

The Practice Commentary to said § 46.05 expresses concern over the broad scope of the statute "in view of the imprecise statement of the kinds of felonies available to invoke this section . . . Some violent felonies require only recklessness, e. g. Section 19.04 (involuntary manslaughter); others require intent. Some felonies can be committed with or without violence or threats of violence, e. g. Sections 21.02 (rape), 30.02 (burglary)." (Emphasis supplied.)

The indictment is set out above and does not need to be repeated here. It is observed that it alleged the prior conviction of burglary was "an act of violence."

The record reflects that appellant was arrested on Avenue D in downtown Killeen on May 27, 1975 with a pistol in his possession. Detective Tom Birchum of the Killeen Police Department testified he investigated a burglary of a building on September 15, 1971 and arrested appellant, who had been seen exiting a window by three witnesses. It was determined entry was made at the same window. The window frame contained no glass, but was covered by a piece of plywood nailed from the inside. The plywood had been pushed in. The officer testified that the building was not damaged and the plywood was not damaged and could be used again. It was established that the appellant did not use an axe, hammer or any instrument.

Under Article 489c, Vernon's Ann.P.C. (1925), as amended in 1969, the precursor of said § 46.05, we held that it must be alleged and proven that the previous conviction involved an act of violence. Mendoza v. State, 460 S.W.2d 145 (Tex.Cr.App.1970); Waffer v. State, 460 S.W.2d 147 (Tex.Cr.App.1970). The indictments in both Mendoza and Waffer allege that the prior conviction was burglary, but failed to allege that the burglary offense is an act of violence. Both causes were reversed.

In footnote # 1 of Mendoza v. State, supra, it was written:

"The record shows that the indictment in the previous conviction alleges burglary with intent to commit theft. This was not shown to have involved violence. Burglary may be committed by one who enters a house in any manner and remains therein with intent to commit a felony or the crime of theft. Article 1389, V.A.P.C. Article 1394, V.A.P.C., provides, in part: ' * * * The slightest force, however, is sufficient to constitute breaking; it may be by lifting the latch of a door that is shut, or by raising a window, the entry at a chimney, or other unusual place, the introduction of the hand or any instrument to draw out the property through an aperture made by the offender for that purpose."

It should be remembered that these statutes were in effect at the time of appellant's 1971 conviction for burglary with intent to commit theft. The indictment therein alleged the appellant did "break and enter" a house, and the judgment found him guilty of "burglary by breaking with intent to commit theft." This, however, does not convert burglary by breaking under the former Penal Code into an act of violence per se. See Mendoza v. State, supra (footnote # 1).

In the early case of State v. Robertson, 32 Tex. 159 (1869), the Texas Supreme Court, dealing with penal provisions the same as were in existence in 1971 when appellant was convicted of burglary, concluded that burglary by breaking did indeed imply some actual force, but the Court stated, "but it does not contemplate such force as would be denominated violence."

In the recent case of Powell v. State, 538 S.W.2d 617 (Tex.Cr.App.1976), we held, in interpreting § 46.05, that "whether a felony offense is within the scope of this statute must depend on the facts and circumstances of each case.

In the instant case the State alleged as an element of the offense that the prior conviction was "an act of violence." It was incumbent upon the State to prove up the elements of the offense alleged in the indictment. See Cathy v. State, 402 S.W.2d 743 (Tex.Cr.App.1966).

The appellant urges that evidence shows that the prior conviction was burglary by breaking but leaves a fact issue as to whether it involved an act of violence for the jury to decide and the court erred in instructing the jury that burglary was an act of violence per se.

Article 36.13, Vernon's Ann.C.C.P., provides that the jury is the exclusive judge of the facts where impanelled unless otherwise provided.

In Marlow v. State, 537 S.W.2d 8 (Tex.Cr.App.1976), it was pointed out that it has been uniformly held it is improper for a judge, in charging the jury in a criminal case, to assume that any fact has been proved against the defendant, however strong the evidence may be. See also Kellogg v. State, 58 Tex.Cr.R. 84, 124 S.W. 958 (1910); Richardson v. State, 390 S.W.2d 773 (Tex.Cr.App.1965); Supina v. State, 115 Tex.Cr.R. 56, 27 S.W.2d 198 (1930); Jones v. State, 22 Tex.App. 680, 3 S.W. 478 (1887); Jernigan v. State, 10 Tex.App. 546 (1881); ...