Casares v. State

703 S.W.2d 246, 1985 Tex. App. LEXIS 12452

• Court: Court of Appeals of Texas
• Decided: November 27, 1985
• Docket: 13-85-101-CR
• Status: Published

Opinions

OPINION

DORSEY, Justice.

Appellant was convicted by a jury of attempted burglary of a habitation. Based on this conviction and a prior burglary conviction the trial court assessed punishment at 25 years’ confinement in the Texas Department of Corrections.

Appellant’s sole ground of error challenges the sufficiency of the evidence to support the conviction. Among other in-sufficiencies claimed is that there is no evidence to support a certain allegation of the indictment. The indictment was for attempted burglary and provided that the appellant, with the specific intent to commit burglary, did “attempt to enter a habitation without the effective consent of William Ramsey, the owner, and with the intent to commit theft by doing the act of pushing against and breaking the door with his shoulder, an act which amounted to more than mere preparation that tended but failed to effect the commission of said offense_” (Emphasis added.)

In his first ground of error, appellant complains that there is no evidence that he used his shoulder to push against and break the door as alleged in the indictment; that the words “with his shoulder” are descriptive of an essential element of the crime, and as such are not mere surplus-age, but must be proven. We agree and reverse the conviction.

The evidence is that two police officers responded to a call around 1:30 a.m. of an attempted burglary of an apartment at the third floor of an apartment building. Officer Revis went inside the building and up the elevator. Upon exiting the elevator on the third floor, he heard a loud pounding coming from one end of the hallway. The pounding was very forceful and was much louder than one knocking on a door to gain entry. Walking towards the noise, he came upon a man walking towards him, whom the officer stopped. The loud banging continued. After turning a corner in the hallway, Officer Revis saw the appellant walking away from an apartment doorway. Wood splinters were in the area of the apartment doorway and the door of the apartment was hanging loose from a security chain, the door and door jam being broken.

Officer Revis hailed for the appellant to stop, whereupon the appellant began to run to the stairway exit. He was captured by the other police officer who was climbing the stairs.

After carefully examining the record, we were unable to find any evidence that the appellant used his shoulder to attempt to effectuate his entry into the apartment as alleged in the indictment. The issue then is whether the words “with his shoulder” are surplusage and need not be proven, or are of such a character that once alleged must be proven. Franklin v. State, 659 S.W.2d 831 (Tex.Crim.App.1983).

The test to determine whether language in an indictment must be proven or is mere surplusage is whether that language describes an essential element of the crime. Upchurch v. State, 703 S.W.2d 638 (Tex.Crim.App., 1985). Where unnecessary matter is descriptive of that which is legally essential to charge a crime, it must be proven even though needlessly stated. Weaver v. State, 551 S.W.2d 419 (Tex.Crim.App.1977).

In Weaver, the crime charged was aggravated assault by use of a deadly weapon. The indictment provided that the appellant “did then and there intentionally and knowingly use a deadly weapon, to wit: a .22 caliber Ruger automatic pistol....” As an essential element of the crime was the use of a deadly weapon, it was necessary that “deadly weapon” be alleged. The detailed description of the deadly weapon was not a necessary allegation, but since it was descriptive of an essential element of the offense, to wit: the deadly weapon, it had to be proved as alleged. As the evidence described the weapon as a Luger, and not a Ruger, the conviction was reversed. Weaver, 551 S.W.2d at 421 (citing Burrell v. State, 526 S.W.2d 799 (Tex.Crim.App.1975); Rowland v. State, 523 S.W.2d 676 (Tex.Crim.App.1975); Goodwin v. State, 320 S.W.2d 852 (Tex.Crim.App.1959).

In Windham v. State, 638 S.W.2d 486 (Tex.Crim.App.1982), as analyzed by the Court of Criminal Appeals in Upchurch, an indictment for attempted murder alleged “by shooting at her with a gun” which was held to be descriptive of “an act amounting to more than mere preparation” and was held necessary to be proven. See Franklin v. State, 659 S.W.2d 831.

A person commits a burglary if (1) without the effective consent of the owner, he (2) enters (3) a habitation or portion of a building not then open to the public (4) with intent to commit a felony or theft. TEX.PENAL CODE ANN. § 30.02 (Vernon 1974).

A person commits a criminal attempt 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.” TEX.PENAL CODE ANN. § 15.01(a) (Vernon Supp.1985).

In the instant case, appellant was indicted for attempted burglary. An essential element of the attempted burglary, “an act amounting to more than mere preparation,” was alleged in the indictment as “pushing against and breaking a door.” The words “with his shoulder” unnecessarily describe the means of “pushing against and breaking.” We hold, therefore, that because the words “with his shoulder” describe an essential element of the offense, albeit unnecessarily, the State was required to prove that appellant used his shoulder to effectuate the “pushing against and breaking,” in accordance with the cases cited above. As there was no such proof, we must reverse the conviction. We are obliged by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), to order an acquittal. See Franklin v. State, 659 S.W.2d 831 (Tex.Crim.App.1983).

The judgment of the trial court is REVERSED and an ACQUITTAL is ordered.