Franks v. State of Texas

688 S.W.2d 502, 1985 Tex. Crim. App. LEXIS 1229

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 1985
• Docket: 879-83
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

A jury convicted appellant of burglary of a habitation, found that appellant had been previously convicted of a felony, and assessed punishment at fifty years’ confinement. The court of appeals affirmed the judgment. 661 S.W.2d 166. We granted appellant’s petition for discretionary review to address the court of appeals affirmance of the denial of appellant’s motion to quash the indictment, and to address the apparent conflict between our decision in Lane v. State, 621 S.W.2d 172 (Tex.Cr.App.1981) and those in Denison v. State, 651 S.W.2d 754 (Tex.Cr.App.1983) and Pinkerton v. State, 660 S.W.2d 58 (Tex.Cr.App.1983).

The indictment charged, in pertinent part, that “... in Harris County, Texas [appellant did] with intent to commit theft, enter a habitation owned by MISHIE MACK, ... without the effective consent of the Complainant, namely, without any consent of any kind.” Appellant’s motion to quash states that the indictment does not provide adequate notice from which he can prepare a defense because it fails to “allege what part of Harris County the habitation in question was located as required by Art. 21.09, V.A.C.C.P.” Art. 21.-09, V.A.C.C.P. provides:

If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice. If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be a sufficient description of the same.

This statute, by its terms, applies to descriptions of real property.

It was held in Lane, supra, that the failure to allege the general location of the real property within the county rendered the indictment insufficient in the face of a motion to quash. In Pinkerton, however, we held it sufficient to allege the county in which an offense is committed where it may be committed anywhere within the county, and further held that burglary is such an offense. In Denison, supra, a plurality opinion states the same conclusion without setting out the rationale.

At first glance, the cases do appear to conflict, but they are distinguishable. Lane was a prosecution for arson, in which the real property served not only as the situs of the offense, but as its object. The building itself was what the defendant was alleged to have sought to destroy.

In a burglary case, however, it is necessary that the situs of the offense be a building or residence, but the object of the offense is the felony or theft to be committed therein,¹ and the building is necessary to the offense only qua situs.

We hold that Art. 21.09 applies to real estate alleged qua object of the offense, but not to real estate alleged only qua situs of the offense. To the extent any case holds to the contrary, it is overruled.

In light of the distinction drawn ante, we find no conflict in the cases cited. Appellant’s ground for review is overruled; the judgments of the trial court and the court of appeals are affirmed.

ONION, P.J., and CLINTON and MILLER, JJ., dissent.

1 . Unless, of course, the intended offense itself focuses upon the building, as in burglary with intent to commit arson.