Albert v. State

Court of Criminal Appeals of Texas

Albert v. State

579 S.W.2d 925, 1979 Tex. Crim. App. LEXIS 1414

CourtCourt of Criminal Appeals of Texas

DecidedApril 25, 1979

DocketNo. 56322

StatusPublished

Cited by2 cases

This text of 579 S.W.2d 925 (Albert v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Albert v. State, 579 S.W.2d 925, 1979 Tex. Crim. App. LEXIS 1414 (Tex. 1979).

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Opinion

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for burglary. V.T.C.A., Penal Code, Section 30.02. After pleading not guilty, the jury convicted appellant and assessed his punishment at four years’ confinement.

We are confronted at the outset with fundamental error in the court’s charge to the jury which requires reversal in the interest of justice. Article 40.09(13), Vernon’s Ann.C.C.P.; Article 36.19, Vernon’s Ann.C.C.P.

The indictment in the present case alleges burglary by “entering] a building without the effective consent of [the owner], and therein attempted to commit and committed theft.” The court instructed the jury in applying the law to the facts that appellant was guilty of the offense charged if it found beyond a reasonable doubt that he “without the effective consent of [the owner], enter[ed] a building and committed] the felony offense of burglary.” (Emphasis supplied.)

A person may commit the offense of burglary as provided by Section 30.02, supra, in one of three manners: (1) by entering a habitation or building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; (2) by remaining concealed, with intent to commit a felony or theft, in a building or habitation; or (3) by entering a building or habitation and committing or attempting to commit a felony or theft. In the present case, the court instructed the jury that the appellant was guilty of the offense of burglary if it found beyond a reasonable doubt that he entered the building in question with the intent to commit burglary. This theory was not alleged in the indictment. It is now well settled that it is fundamentally erroneous for the trial court to instruct the jury to convict the defendant on various theories not alleged in the indictment. Cullum v. State, 576 S.W.2d 87 (Tex.Cr.App.1979); Smith v. State, 570 S.W.2d 958 (Tex.Cr.App.1978); Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.1977).

The judgment is reversed and the cause remanded.

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OPINION

ROBERTS, Judge.

This is an appeal from a conviction for burglary. V.T.C.A., Penal Code, Section 30.02. After pleading not guilty, the jury convicted appellant and assessed his punishment at four years’ confinement.

We are confronted at the outset with fundamental error in the court’s charge to the jury which requires reversal in the interest of justice. Article 40.09(13), Vernon’s Ann.C.C.P.; Article 36.19, Vernon’s Ann.C.C.P.

The indictment in the present case alleges burglary by “entering] a building without the effective consent of [the owner], and therein attempted to commit and committed theft.” The court instructed the jury in applying the law to the facts that appellant was guilty of the offense charged if it found beyond a reasonable doubt that he “without the effective consent of [the owner], enter[ed] a building and committed] the felony offense of burglary.” (Emphasis supplied.)

A person may commit the offense of burglary as provided by Section 30.02, supra, in one of three manners: (1) by entering a habitation or building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; (2) by remaining concealed, with intent to commit a felony or theft, in a building or habitation; or (3) by entering a building or habitation and committing or attempting to commit a felony or theft. In the present case, the court instructed the jury that the appellant was guilty of the offense of burglary if it found beyond a reasonable doubt that he entered the building in question with the intent to commit burglary. This theory was not alleged in the indictment. It is now well settled that it is fundamentally erroneous for the trial court to instruct the jury to convict the defendant on various theories not alleged in the indictment. Cullum v. State, 576 S.W.2d 87 (Tex.Cr.App.1979); Smith v. State, 570 S.W.2d 958 (Tex.Cr.App.1978); Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.1977).

The judgment is reversed and the cause remanded.

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579 S.W.2d 925, 1979 Tex. Crim. App. LEXIS 1414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albert-v-state-texcrimapp-1979.

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