Vaughn v. State

¶1(dissenting).

¶2The following opinion was originally prepared by Commissioner Davis. I hereby adopt it as my dissent to the majority’s disposition of this case.

¶3“At the outset, it is contended that the indictment is fundamentally defective.

¶4The pertinent portion of the indictment alleged that appellant did then and there

‘intentionally and knowingly with intent to commit injury to a child enter a habitation which was not then open to the public, without the effective consent of Dan Reeder, the owner thereof. . . ’ (emphasis supplied)

¶5V.T.C.A. Penal Code, Section 30.02(a)(1), defines the offense of burglary:

‘(a) A person commits an offense if, without the effective consent of the owner, he:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with the intent to commit a felony or theft; . . .’ (emphasis supplied)

¶6The indictment in the instant case charged that entry of the habitation was made ‘with intent to commit injury to a child.’ The offense of burglary as defined in Section 30.02(a)(1), supra, requires that entry be made with the intent to commit a felony or theft. Since the indictment does not charge that entry was made with the intent to commit theft, we must determine if the indictment avers that entry was made with intent to commit a felony.

¶7The State urges that the elements of an offense whose intended commission is a part of a charged offense need not be fully alleged and calls our attention to holdings of this Court that the offense intended by an assault need only be named in the indictment. The State cites Small v. State [Tex.Cr.App.], 466 S.W.2d 281 (assault with intent to rape); Johnson v. State [Tex.Cr.*563App.], 384 S.W.2d 885 and Clark v. State [162 Tex.Cr.R. 493], 286 S.W.2d 939 (assault with intent to murder) and Thomas v. State [Tex.Cr.App.], 451 S.W.2d 907 and Hunter v. State [119 Tex.Cr.R. 558], 45 S.W.2d 969 (assault with intent to rob). Also, cited by the State is our recent opinion in Gonzales v. State [Tex.Cr.App.], 517 S.W.2d 785, where it was held that the constituent elements of theft or intended theft need not be alleged in an indictment or information for burglary with intent to commit theft.

¶8We find the State’s reliance on the foregoing cases and Article 21.13, V.A.C.C.P.,1 to be misplaced. Not every infliction of ‘injury to a child’ is a felony offense.2 Thus, the infliction of an ‘injury to a child’ is not a felony per se and the averment in the indictment that entry was made with intent to ‘commit injury to a child’ does not amount to an allegation that entry was made with the intent to commit a felony offense.

¶9We conclude that there is a complete failure to charge the offense of burglary since the indictment does not allege that the entry was made with the intent to commit theft or a felony offense. See Williams v. State [Tex.Cr.App.], 505 S.W.2d 838. If an indictment or information fails to allege that an offense was committed by the defendant, it is utterly insufficient and any conviction based thereon is void. American Plant Food Corporation v. State [Tex.Cr.App.], 508 S.W.2d 598.”

¶10In addition to the foregoing, I note that-injury to a child can constitute the misdemeanor offense of simple assault under our new Penal Code. Sec. 22.01, V.T.C.A., Penal Code. Moreover, under the old Penal Code, even aggravated assault upon a child was a misdemeanor. Art. 1148, V.A.P.C. Thus, the importance of specificity in charging the commission of a felony in this indictment becomes even more apparent.

¶11I would therefore reverse this conviction and order the indictment dismissed.