Waller v. State

648 S.W.2d 308, 1983 Tex. Crim. App. LEXIS 988

Opinions

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of burglary of a building; V.T. C.A. Penal Code, Section 30.02; the punishment is imprisonment for 10 years.

V.T.C.A. Penal Code, Section 30.02(a)(1) provides:

“A person commits an offense if, without the effective consent of the owner, he: enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft,”

Although raised neither in the trial court nor on appeal, we are confronted with an indictment which is fundamentally defective under our holding in Ex parte Prestridge, 605 S.W.2d 922 (Tex.Cr.App.1980). In that case, in which there was a collateral attack on the judgment, we held that the indictment was fundamentally defective. It was there said:

“It is essential to the offense of burglary of a building that the building entered not be open to the public.... The indictment is fundamentally defective for failing to allege that the building entered was not then open to the public. Compare Garza v. State, 522 S.W.2d 693 (Tex.Cr.App.1975); Johnson v. State, 537 S.W.2d 16 (Tex.Cr.App.1976).”

In the indictment in the instant case it is alleged the appellant on or about September 27, 1979: “did unlawfully intentionally and knowingly enter a building without the effective consent of Ethel Phillips, the owner, and therein attempted to commit and committed theft,” The indictment does not allege that the building was not open to the public, a necessary element of the offense of burglary of a building. Since the indictment does not allege an element of the offense it is fatally defective and reversal is required. Ex parte Prestridge, supra; cf. Allison v. State, 618 S.W.2d 763 (Tex.Cr.App.1981).

The judgment is reversed and the indictment is ordered dismissed.

Opinion approved by the court.