Holloway v. State

583 S.W.2d 376, 1979 Tex. Crim. App. LEXIS 1274

• Court: Court of Criminal Appeals of Texas
• Decided: February 21, 1979
• Docket: 56087
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for criminal trespass wherein punishment was assessed at 90 days imprisonment and a $500 fine. Appellant’s wife had left him and he was convicted of bursting into the home of his father-in-law at one in the morning and demanding to know where she was.

Appellant’s first ground of error asserts that the trial court erred in failing to properly apply the law to the facts in its charge to the jury. The criminal information under which appellant was charged stated in part that: “Billy Bell Holloway did then and there intentionally and knowingly enter a habitation of Eules Moore, without the effective consent of Eules Moore. . . ” The court charged the jury as follows:

“Now if you find from the evidence beyond a reasonable doubt that in Ellis County, Texas, on or about the 27th day of December, 1976, the defendant, Billy Bell Holloway, did then and there enter a habitation controlled, occupied, and in the possession of Eules Moore, hereinafter called owner, without said owner’s effective consent to do so, and the said defendant then and there knew and had notice that his entry was forbidden, then you will find the defendant guilty as charged.”

Appellant asserts that the omission of the words “intentionally and knowingly” from the charge is fundamental error in that knowledge and intent are elements of the crime and must be included in the charge. The court, in its charge, gave definitions of knowingly and intentionally.

This case is controlled by this Court’s disposition of West v. State, 567 S.W.2d 515, and the cases involving West’s codefend-ants, West v. State, Tex.Cr.App., 572 S.W.2d 712, and Thompson v. State, Tex.Cr.App., 574 S.W.2d 103. In West, the defendant was also charged with criminal trespass. The indictment charged that he did “intentionally and knowingly enter and remain in a habitation” while the jury charge stated that the jury could convict if it found the defendant “did then and there unlawfully enter and remain in a habitation. . . ”

This Court determined that while V.T.C.A., Penal Code Sec. 30.05 does not expressly prescribe a culpable mental state, the culpable mental state of intentionally, knowingly, or recklessly was required as an element of the offense by the provisions of V.T.C.A., Penal Code Sec. 6.02. The fundamental error in this case occurred when the trial court failed to charge the jury with all the elements of the offense in conformity with the charging document. See also Windham v. State, Tex.Cr.App., 530 S.W.2d 111.

The criminal information properly alleged the necessary culpable mental state of the offense but the charge to the jury omitted this element. This constitutes fundamental error.

The judgment is reversed and the cause remanded.

Before the Court en banc.