Green v. State

533 S.W.2d 769, 1976 Tex. Crim. App. LEXIS 818

• Court: Court of Criminal Appeals of Texas
• Decided: February 11, 1976
• Docket: 50526
• Status: Published

Opinions

OPINION

MORRISON, Judge.

The offense is attempted burglary; punishment, 10 years.

In his first two grounds of error, the appellant contends that the indictment is fundamentally defective in that it failed to allege the act which constitutes an attempt and failed to allege sufficient information upon which to prepare a defense.

The questioned portion of the indictment alleges that the appellant did then and there unlawfully:

“intentionally and knowingly and without the effective consent of Clyde E. Cumbie, hereinafter called complainant, the owner thereof, attempt to enter a building not then and there open to the public, and with intent to commit theft, to-wit: with intent then and there to unlawfully exercise control over the personal property of complainant, without the effective consent of complainant, the owner of said property, and with intent to deprive complainant of said property.”

There was no motion to quash the indictment. The function of a motion to quash is to call the trial court’s attention to a defect in the indictment that is not obvious on its face.

While the better practice would be to allege the act constituting the attempt, we do not conclude that the omission is fundamental error to require reversal in absence of a motion to quash. To the extent Fonville v. State, Tex.Cr.App., 62 S.W. 573 is in conflict, the same is overruled. Nor do we find that the failure to allege the act deprived the appellant of the opportunity to prepare a defense. American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598.

In his third ground of error, appellant contends that he should have been given his requested charge on circumstantial evidence as to the issue of intent. When the intent of the actor is the only element not proved by direct evidence, a charge on circumstantial evidence is not necessary. Davis v. State, Tex.Cr.App., 516 S.W.2d 157; Sloan v. State, Tex.Cr.App., 515 S.W.2d 913.

Appellant in his final ground of error contends his evidence raised the lesser included offense of criminal mischief and that it was error for the court not to include it in the charge. There was no specially requested charge, nor was there any objection to the charge; therefore nothing is presented for review. Hoffman v. State, Tex.Cr.App., 514 S.W.2d 248; cf. Terry v. State, Tex.Cr.App., 517 S.W.2d 554.

The judgment is affirmed.