Ex Parte Cannon

¶1OPINION ON STATE’S MOTION FOR REHEARING

¶2On original submission we held that the burglary indictment in this case was fundamentally defective. The indictment, which is set out in the majority opinion on original submission, failed to allege that the entry was made with the intent to commit a felony or theft, a necessary element of the offense of burglary under V.T.C.A., Penal Code, Sec. 30.02(a)(1) or (a)(2). Faulks v. State, 528 S.W.2d 607 (Tex.Cr.App.1975).

¶3We again set out the indictment, as follows:

“IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS, the Grand Jurors, good and lawful men of the County of Dallas, duly elected, tried, empaneled sworn and charged to *272inquire of offenses committed within the body of said Dallas County, upon their oaths do present in and to the 203RD JUDICIAL District Court,_of Dallas, County, at the JANUARY Term, A.D., 1974, that one,

JAMES EARL CANNON

hereinafter styled Defendant, on or about the 23 day of April, in the year of our Lord One Thousand Nine Hundred and 74 in the County and State aforesaid, did unlawfully, then and there, with intent to exercise control over the property of Robert N. Smith, enter a habitation without the effective consent of Robert N. Smith, the said owner.”

¶4Of course, an indictment for burglary need not allege that the entry was with the intent to commit theft or a named felony, provided that it alleges instead the elements of the felony or theft in the indictment. See Williams v. State, 505 S.W.2d 838 (Tex.Cr.App.1974); Mitchell v. State, 118 Tex.Cr.R. 77, 37 S.W.2d 1018 (1931). Similarly, it is not necessary to allege the elements of the felony or theft if the indictment states simply that the entry was with the intent to commit theft or a specifically named felony.1Gonzales v. State, 517 S.W.2d 785 (Tex.Cr.App.1975); Vaughn v. State, 530 S.W.2d 558, 562 (Tex.Cr.App.1976) (majority and dissenting opinions).

¶5Since the indictment in this case does not allege that the entry was made with the intent to commit a named felony or theft, the question then becomes whether it sets out the necessary elements of a felony or of theft.

¶6A comparison of the indictment to our theft statute (V.T.C.A., Penal Code, Sec. 31.03) leads to the conclusion that the indictment in this case was an attempt to allege burglary with intent to commit theft, as theft is defined in V.T.C.A., Penal Code, Sec. 31.03(a)(2). Section 31.03 provides in pertinent part as follows:

“(a) A person commits an offense if, with intent to deprive the owner of property:

(1) he obtains the property unlawfully; or

(2) he exercises control over the property, other than real property, unlawfully.

(b) Obtaining or exercising control over property is unlawful if:

(1) the actor obtains or exercises control over the property without the owner’s effective consent; or

(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.”2

¶7Our new Penal Code consolidated virtually all theft offenses into a single offense. Section 31.02 of the new Code provides for this consolidation, while subsections (a) and (b) of Section 31.03 define the different ways theft may be committed. A reading of these provisions of Section 31.03 makes it dear that there are four ways to commit theft: (1) by obtaining property without the owner’s effective consent under subsections (a)(1) and (b)(1); (2) by obtaining property from another knowing it to be stolen under subsections (a)(1) and (b)(2); (3) by exercising control over property, other than real property, without the owner’s effective consent under subsections (a)(2) and (b)(1); and (4) by exercising control over property, other than real property, obtained by another, knowing it to be stolen under subsections (a)(2) and (b)(2).

¶8Thus, the offense of theft has four different sets of possible elements:

*273(1) a person

(2) with intent to deprive the owner of property

\o) obtains the property

(4)without the owner’s effective consent;

¶9or

(1) a person

(2) with intent to deprive the owner of property

(3) obtains the property

(4) which is stolen property

(5) from another

(6) knowing it was stolen;

¶10or

(1) a person

(2) with intent to deprive the owner of property

(3) exercises control over the property, other than real property

(4) without the owner’s effective consent;

¶11or

(1) a person

(2) with intent to deprive the owner of property

(3) exercises control over the property, other than real property

(4) which is stolen property

(5) obtained by another

(6) knowing it was stolen.

¶12An indictment for theft which does not allege all of the elements of one of these methods is fundamentally defective, since “Everything should be stated in an indictment which is necessary to be proved.” Art. 21.03, Vernon’s Ann.C.C.P. See also Art. 21.11, V.A.C.C.P., and the authorities cited in the majority and concurring opinions on original submission. It follows that an indictment for burglary with intent to commit theft which fails to state specifically that the entry was with such intent must allege all of the elements of one of these means of committing theft.

¶13The indictment in this case fails to allege an element necessary to every theft allegation: That the appellant acted “with intent to deprive the owner of property.” Without this element the indictment is fundamentally defective under our new Penal Code, and the trial court was without power to proceed to trial. See the majority and concurring opinions on original submission, as well as Art. 21.05, Vernon’s Ann.C.C.P.; see also Martini v. State, 116 Tex.Cr.R. 58, 32 S.W.2d 654 (1930); Rodriguez v. State, 128 Tex.Cr.R. 262, 80 S.W.2d 988 (1935); McCann v. State, 168 Tex.Cr.R. 383, 328 S.W.2d 298 (1959); Worthington v. State, 469 S.W.2d 182 (Tex.Cr.App.1971).

¶14The indictment is also fundamentally defective because it fails to allege how the intended taking was unlawful. As we held on original submission, it does not allege that the intended exercise of control was without the owner’s effective consent, V.T. C.A., Penal Code, Sec. 31.03(b)(1), and it is not enough to allege that the entry was without such consent. As this Court said in Musick v. State, 121 Tex.Cr.R. 616, 618, 51 S.W.2d 715, 716 (1932):

“It is elementary, as well as statutory, that the essential element of theft is that the property be taken not only fraudulently but without the consent of the owner, with the intent to deprive the owner of the value and appropriate the property to the benefit of the taker . In Wharton’s Crim. Law (11th Ed.) vol. 2, p. 1311, Sec. 1094, it is said that the definition of larceny which omits ‘without the consent of the owner’ is now universally conceded to be defective.” (Emphasis added).

¶15We recently reaffirmed this rule in Martinez v. State, 494 S.W.2d 182 (Tex.Cr.App.1973), and see no reason why it should not apply to our new Penal Code. The indictment before us, plainly read, did allege that the entry was without the owner’s effective consent, see V.T.C.A., Penal Code, Sec. 30.-02(a), but failed to allege that the intended exercise of control was without the owner’s consent.

¶16Nor did the indictment allege that the property was stolen or that the appellant knew the property was stolen. Moreover, the indictment did not allege either that the appellant obtained the property from an*274other or that he exercised control over the property, other than real property, obtained by another. These are essential elements of theft under subsection (b)(2), see Pool v. State, 528 S.W.2d 255 (Tex.Cr.App.1975), and are required to be alleged in an indictment alleging either of the methods of committing theft under this subsection. Art. 21.03, supra.3

¶17Since the indictment failed to allege either method of unlawful taking under V.T. C.A., Penal Code, Sec. 31.03(b), it is fundamentally defective.4 Nor can we agree that the use of the general term “unlawfully” was sufficient to overcome the deficiency. See V.T.C.A., Penal Code, Sec. 1.07(a)(36), and Ham v. State, 118 Tex.Cr.R. 271, 40 S.W.2d 152 (1931).

¶18The State’s motion for rehearing is overruled.

¶24(dissenting).

¶25The majority holds the indictment to be fundamentally defective because it did not allege that the burglary was with the intent to commit a named felony or theft.

¶26Cannon entered a plea of guilty to the offense of burglary in the present case. According to his application for habeas corpus he also entered a plea of guilty to another offense of burglary. When this cause was set for submission he did not contend that the elements of theft were not alleged. He contended that no culpable mental state was alleged. His lawyer knew what he was charged with. There was no motion to quash the indictment. No appeal was taken and, therefore, it was not mentioned in an appellate brief so that the trial judge could pass upon any errors committed and grant a new trial to prevent a useless appeal. The rule adopted by the majority gives a defendant a free ride. If the jury finds one not guilty, he no doubt would be free. If the proof shows him to be guilty, he gets a new trial if the question is raised in an application for habeas corpus or, as in the present case, even if it is not raised. The indictment alleges that Cannon “. . . did unlawfully then and there, with intent to exercise control over the property of Robert N. Smith, enter a habitation without the effective consent of Robert N. Smith, the said owner.” (Emphasis Supplied)

¶27The indictment alleges the burglary and, in substance, it was done with the intent to commit theft. V.T.C.A., Penal Code, Section 31.03, Theft, provides, in part, as follows:

“(a) A person commits an offense if, with intent to deprive the owner of property:

a …

“(2) he exercises control of the property." (Emphasis Supplied)

¶28The indictment alleged that Cannon unlawfully entered the habitation with intent to exercise control of the property of Smith without the owner’s effective consent. The *275indictment alleged without the owner’s effective consent. When someone enters a habitation without the owner’s consent with the intent to unlawfully exercise control of the property, this alleges enough to show an intention to commit theft under the statute.

¶29In Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1975), it was contended that a burglary indictment did not allege that the act was knowingly and intentionally done. The indictment alleged in part that “. Teniente did then and there with intent to commit theft, enter a habitation without the effective consent of Carlos Reyna, the owner.” This Court noted that the gist of the offense of burglary was entry of the habitation with the requisite intent and upheld the indictment.

¶30In Vaughn v. State, 530 S.W.Sd 558 (Tex.Cr.App.1975), this Court held that it was sufficient for an indictment to allege that entry was made with the intent to commit the felony “injury to a child.” This indictment is less specific than the one in the present case.

¶31The opinion by the majority on original submission would make it a mandatory requirement to allege without the owner’s consent twice, that is, (1) unlawfully enter a building without the owner’s consent, and (2) without the owner’s consent exercise control of the property. The reading of just the one sentence in the indictment as a whole shows that the entry of the building as well as the intent to take the property was without the owner’s consent.

¶32The Legislature might be interested in passing an act so that the intent of the new penal code could be carried out. A rule that where an indictment or information substantially charges an offense, or it can be ascertained what offense is charged, the pleading cannot be attacked on appeal or by habeas corpus, such an attack must be made in a motion to quash or in an exception to the pleading.

¶33There can be no justification for the rule that, where one pleads guilty to a known offense and the proof shows him guilty and he is serving the sentence, he should be released and the prosecution dismissed on the ground that an element of the offense is not stated in an indictment or information. This is especially true where counsel knew what the defendant was charged with.

¶34Compare this to the rule of this Court that when one who has been convicted for an offense cannot be released by habeas corpus if the evidence offered at the trial is insufficient to support the conviction provided some evidence has been introduced at the trial. See Ex parte Roberts, 502 S.W.2d 802 (Tex.Cr.App.1973), and Ex parte Ash, 514 S.W.2d 762 (Tex.Cr.App.1974). In such an instance there is a possibility that some harm existed.

¶35Sometime before the current holdings by the majority, a different but a better rule existed. In Merriell v. State, 163 Tex.Cr.R. 534, 294 S.W.2d 400 (1956), this Court wrote:

“There being a valid law under which a sufficient complaint and information could have been drawn for the act of obtaining property with intent to injure and defraud by the giving of the check, draft or order set out in the information, any irregular or insufficient averment of facts would not entitle appellant to relief by habeas corpus.”

¶36In Ex parte Spencer, 171 Tex.Cr.R. 339, 349 S.W.2d 727 (1961), we find:

“ ‘This court takes no note of the form of the complaint, but in habeas corpus proceedings of this character will go no further than to determine whether the arrest or conviction is supported by a law under which a valid complaint may be drawn. See Ex parte Cox, 53 Tex.Cr.R. 240, 109 S.W. 369; Ex parte Jennings, 76 Tex.Cr.R. 116, 172 S.W. 1143; Ex parte Rogers, 83 Tex.Cr.R. 152, 201 S.W. 1157; Ex parte Roquemore, 60 Tex.Cr.R. 282, 131 S.W. 1101, 32 L.R.A. (N.S.) 1101 [1186]; Ex parte McKay, 82 Tex.Cr.R. 221, 199 S.W. 637; Ex parte Garcia, 90 Tex.Cr.R. 287, 234 S.W. 892.’ ”

¶37Judge Roberts got this Court on the right track, at least temporarily, when he wrote in a habeas corpus proceeding about an *276attack on an indictment which did not allege the extent of the injury in a wilful injuring personal property case as follows:

. .we are of the opinion that appellant has clearly waived his right to challenge a defective indictment. There is no claim that appellant was denied adequate notice of the charges against him, that his plea was involuntary or without sufficient understanding, or that the improper wording of the indictment violated any of petitioner’s rights to due process or equal protection of the law. We do not feel constrained to reverse the conviction on habeas corpus merely because of the improper wording of an indictment, without a showing that the petitioner therein was harmed thereby. . ” Ex parte Roberts, 502 S.W.2d 802 (Tex.Cr.App.1973).

¶38We would do well to follow that rule which has been overruled.

¶39The majority misconstrues the opinion by Presiding Judge Woodley in Ex parte Miller, 172 Tex.Cr.R. 590, 360 S.W.2d 879 (1962). There, the complaint only alleged that the defendant “did then and there unlawfully and wilfully Pass — insufficient Clearance against the peace and dignity of the State.” So there will be no argument, the holding is quoted as follows:

“We hold that where, as here, no facts are alleged in the complaint which, if true, constitute an offense, and no such facts are alleged which show what offense was meant to be charged, a final conviction under such complaint is void and may be attacked by habeas corpus.” (Emphasis Supplied).

¶40That part of the opinion would make a good rule for construction to be adopted by the Legislature. If facts are alleged to show what offense was meant, a pleading should not be set aside after a convict has started serving time and later thinks, or this Court thinks for him, that he did not know what offense was meant to be charged.

¶41It has got to the point that the majority of the Court has added an element to the offense of robbery not required in the statute and sets aside convictions on habeas corpus when the matter has not been alleged in habeas corpus proceedings. See Ex parte Banks, Tex.Cr.App., 542 S.W.2d 183 (1976), and the dissenting opinion. Now this added element of ownership has to be alleged according to the majority even though such ownership does not have to be proved under Clark v. State, 527 S.W.2d 527 (Tex.Cr.App.1975).

¶42Any argument that an indictment or information has to be more specific so that it can be pled for the purpose of former acquittal or conviction is without merit. One claiming former acquittal or conviction may assert and prove facts which show the identity of the offense although this may not appear on the face of the indictment or information or in the recitals of the judgment. Buchanan v. State, 506 S.W.2d 236 (Tex.Cr.App.1974); Luna v. State, 493 S.W.2d 854 (Tex.Cr.App.1973). The question of double jeopardy does not have to be raised on appeal. This Court will apply the rule even though there has been no such plea or objection during the trial. See Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970).

¶43There is no better time than the present to stop the setting aside of convictions when the defendants have not been harmed or misled. There are other cases now pending before the Court that will have to be reversed and the prosecution ordered dismissed because of the ruling by the majority. See the dissenting opinion in Reynolds v. State, 547 S.W.2d 590 (1976). Hundreds of cases will be reversed and prosecutions ordered dismissed in the future because of these cases. A dissent will not be filed in each case even though, in my opinion, they will be incorrect.

¶44The relief sought should be denied.