Kasper v. State

¶1OPINION

¶2This is an appeal from an order revoking probation. Appellant was convicted of burglary under the former Penal Code. Punishment was assessed at imprisonment for four years, but upon revocation the court reduced punishment to three years.

¶3Appellant raises four contentions challenging the revocation, but we find fundamental error invalidating the original judgment of conviction.

¶4The indictment charged burglary of a private residence at night, a violation of Article 1391, Vernon’s Ann.P.C. (1925). The minimum punishment1 for that offense *634is imprisonment for five years. Article 1391, supra. Appellant waived trial by jury and entered a plea of guilty before the court to ordinary burglary. See Article 1389, Vernon’s Ann.P.C. (1925), as amended. The judgment and sentence recite conviction for burglary and show punishment within the range affixed to that offense.

¶5“A conviction for burglary cannot be supported by an indictment charging burglary of a private residence at night.” Bowie v. State, Tex.Cr.App., 401 S.W.2d 829, 831; Robinson v. State, 82 Tex.Cr.R. 570, 200 S.W. 162, 166 (1918).

¶6Because the indictment is insufficient to support the conviction, the judgment is reversed and the cause remanded.