Britton v. State

¶1OPINION

¶2This is an appeal from a conviction for committing the offense of burglary of a habitation, see V.T.C.A. Penal Code, Sec. 30.02. A jury found appellant guilty of the offense and thereafter assessed his punish*439ment, enhanced by a prior felony conviction, at 75 years’ confinement in the penitentiary.

¶3At the outset, we find ourselves confronted with a fundamentally defective jury charge, which error causes us to reverse the conviction in the interest of justice.1

¶4The indictment in this cause, omitting the formal introductory and concluding parts, alleges that the appellant did:

... intentionally and knowingly and without the effective consent of ROBERT CARLTON POWELL, enter a building owned by the said ROBERT CARLTON POWELL and did then and there commit theft, to wit: did then and there appropriate property from ROBERT CARLTON POWELL, the owner thereof, and with intent to deprive ROBERT CARLTON POWELL of said property, and that said building was then and there a habitation occupied by the said ROBERT CARLTON POWELL ... (Emphasis added).

¶5In applying the law of the offense to the facts adduced, the trial court in its final charge to the jury instructed the jury as follows:

Now if you find from the evidence beyond a reasonable doubt that in Brazos County, Texas on or about the 11th day of January, 1979, the Defendant, Norris Britton, did enter a building then and there occupied, controlled and in the possession of Robert Carlton Powell, hereinafter called owner, without the effective consent of said owner, and that such building was then and there an enclosed structure intended for use or occupation as a habitation and then and there in actual use by said owner as a habitation, as that term has been defined, and that the defendant did then and there commit the offense of theft, as hereinbefore defined, of corporeal personal property therein being owned by Robert Carlton Powell, then you will find the Defendant guilty as charged.2

¶6It is well established that a jury charge is fundamentally defective if it authorizes conviction on a theory not supported by the indictment. It is also axiomatic that where an indictment or information properly alleges a culpable mental state, but the jury charge omits such element of the offense, failure to include in the charge all essential elements of the offense constitutes fundamental error. Doyle v. State, 631 S.W.2d 732, 737-738 (Tex.Cr.App.1982) (On State’s Motion for Rehearing).

¶7The charge in this instance, in the application paragraph, omitted both of the culpable mental states that were stated in the indictment. It is therefore fundamentally defective.

¶8The judgment is reversed and the cause remanded.