West v. State
| Decision Date | 28 June 1978 |
| Docket Number | No. 3,No. 54963,54963,3 |
| Citation | 567 S.W.2d 515 |
| Parties | Douglas Mark WEST, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Thomas D. Farris, Amarillo, for appellant.
Randall Sherrod, Dist. Atty., and Richard L. Wilcox, Asst. Dist. Atty., Canyon, and Jim D. Vollers, State's Atty., Austin, for the State.
Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
This is an appeal from a conviction for criminal trespass. V.T.C.A., Penal Code Sec. 30.05. Punishment was assessed at 280 days in jail and a $500 fine.
We are confronted at the outset with fundamental error in the jury charge that requires reversal in the interest of justice. Art. 40.09(13), V.A.C.C.P.
The complaint and information charged that appellant did:
" . . . intentionally and knowingly enter and remain in a habitation, without the effective consent of Gail Maureen West, the owner thereof, the said DOUGLAS MARK WEST having notice the entry was forbidden, . . . "
In applying the law to the facts in the jury instructions the court charged:
"Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendants, DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST 1 and MICHAEL LEROY THOMPSON 2 on or about the 9th day of April, 1976, in the County of Randall and State of Texas, did then and there unlawfully enter and remain in a habitation, without the effective consent of the said GAIL MAUREEN WEST, the owner, and the said DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST, and MICHAEL LEROY THOMPSON had received notice that the entry was forbidden, then you will find the said DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST and MICHAEL LEROY THOMPSON guilty as charged, but if you do not so find, or have a reasonable doubt thereof, you will find the defendant not guilty."
Appellant was charged with criminal trespass under Sec. 30.05(a)(1), supra, which provides:
The statutory language does not prescribe a culpable mental state. V.T.C.A., Penal Code Sec. 6.02(b) and (c) requires one nevertheless:
Although Sec. 30.05, supra, does not prescribe a culpable mental state, we hold that a culpable mental state of intentionally, knowingly, or recklessly is required by Sec. 6.02, supra. Day v. State, Tex.Cr.App., 532 S.W.2d 302, 306, n. 2. Cf. Bocanegra v. State, Tex.Cr.App., 552 S.W.2d 130; Zachery v. State, Tex.Cr.App., 552 S.W.2d 136; Ex parte Winton, Tex.Cr.App., 549 S.W.2d 751; Braxton v. State, Tex.Cr.App., 528 S.W.2d 844. For offenses that require a culpable mental state, it is an element of the offense and must be alleged in the indictment. V.T.C.A., Penal Code Sec. 1.07(a)(13); Ex parte Garcia, Tex.Cr.App., 544 S.W.2d 432; Tew v. State, Tex.Cr.App., 551 S.W.2d 375; Zachery, Winton, supra.
It is well established that a jury charge is fundamentally defective if it authorizes conviction on a theory not supported by the indictment. E. g. Shaw v. State, Tex.Cr.App., 557 S.W.2d 305; Peoples v. State, Tex.Cr.App.,548 S.W.2d 893; Long v. State, Tex.Cr.App., 548 S.W.2d 897. In Morter v. State, Tex.Cr.App., 551 S.W.2d 715, the Court quoted approvingly from Moore v. State, 84 Tex.Cr.R. 256, 206 S.W. 683 (1918):
"Wherever the indictment charges an offense, the facts and the charge of the court must conform to the...
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