Perez v. State

537 S.W.2d 455, 1976 Tex. Crim. App. LEXIS 981

• Court: Court of Criminal Appeals of Texas
• Decided: June 9, 1976
• Docket: 51813
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

Appellant was convicted by a jury for burglary under the former Penal Code. The punishment, enhanced under Art. 62, Vernon’s Ann.P.C., was assessed by the court at twelve (12) years.

We are confronted at the outset with fundamental error in the court’s charge which must be reviewed in the interest of justice. Art. 40.09(13), Vernon’s Ann.C.C.P. Harris v. State, 522 S.W.2d 199, 202 (Tex.Cr.App.1975).

The first paragraph of the charge states that the appellant stands accused of burglary with intent to commit theft, alleged to have been committed in Bexar County, Texas, on or about August 9, 1973. The appellant’s plea of not guilty is then noted.

The charge then defines “burglary,” “breaking,” “house,” “entry into a house,” and “theft.” The charge instructs the jury that the entry must be proved, beyond a reasonable doubt, to have been made with the intent to commit theft. The jury is then instructed that the ownership of the property may be alleged either in the owner of the property or in one having care, custody, and control of the property.

The charge next tells the jury that the indictment is not evidence of guilt, that matters not in evidence are not to be considered during the jury’s deliberations, that a foreman is to be chosen as soon as the jury retires, that the jurors are the exclusive judges of the facts, even though they must receive the law from the court, and that the burden of proof is on the State beyond a reasonable doubt.

The charge then instructs the jury generally on the law of circumstantial evidence and on the right of the appellant not to testify.

Finally, the charge notes, over the signature of the trial judge, that suitable verdict forms are attached to the charge.

The foregoing summary makes clear that the charge totally fails to apply the law of burglary to the facts of this case. The jurors were not instructed under what circumstances they should convict or acquit the appellant. This error goes to the very basis of the case and requires reversal. See Harris v. State, supra (and authorities there cited), which establishes this to be a rule of many years’ standing in this Court.

Accordingly, the judgment is reversed and the cause remanded.