Ex Parte Winton
549 S.W.2d 751
Tex. Crim. App.
1977
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*1 trial the evidence because the court Terry appellant’s plea have withdrawn the WINTON. should David appellant the stand “true” when took denied intention specifically Appeals of Texas. Court of Criminal Gates committing theft. (Tex.Cr.App.1976); Woodberry 27, (Tex.Cr.App., 1977). trespass a lesser in burglary.

cluded offense If (Tex.Cr.App.1976). support

evidence is sufficient criminal may

trespass, we reform the trial court’s Pickett

finding to this. reflect (Tex.Cr.App.1976); 870-871 44.24(b),

Art. V.A.C.C.P. testified

Appellant that he entered the witness’

complaining through home permis- did this her

window and attempted type He up

sion. set some by stating, “I somebody

defense had seen

coming thought out of the house —I had coming somebody

seen out of the house.” court, fact,

The trial as trier of could have attempted believe

chosen not de- court

fense. The trial would have

abused discretion if he revoked had appellant’s based on

bation commission trespass.

criminal -

The sup- evidence sufficient finding

port appellant committed trespass, revoking proba

criminal order is reformed so as this.

tion to reflect

The court af-

firmed.

DOUGLAS, J., concurs in the result. David

Jim D. Austin, for S.McAngus, Asst. State’s the State.

ODOM, Judge. post-conviction This is a 11.07, Art. application filed V.A.C.C.P.

752 9, 1975,

On July petitioner pleaded quired unless the plainly definition dis- burglary punishment to penses any was assessed at with mental element.” twenty years. No appeal was taken. V.T.C.A., Penal Code 30.02(a)(3), Sec. un- der which the sought contends inter State alia that bring the. to this prosecution, provides: indictment is fundamentally defective. The alleges pertinent indictment part that he “(a) person A if, commits an offense without the effective consent “did then of the own- and there enter a building er, he: the effective Gary consent of Minshew, owner, and therein at-

tempted to commit and committed theft. “(3) building enters a or habitation and attempts

commits or to felony commit a or theft.” Petitioner attacks this indictment for fail- allege ure culpable a statutory mental state. This of burglary definition does plainly dispense not mental ele- It is fundamental that an indict ment, required and therefore one is by Sec. allege ment must all essential elements of 6.02, supra. State, See Tex.Cr.App., sought the offense charged. be e. 1; 532 n. State, S.W.2d Braxton v. g., State, Reynolds v. Tex.Cr.App., 547 844; Tex.Cr.App., 528 S.W.2d contrast with (1977); parte Cannon, Ex Tex. Ross, parte Ex Tex.Cr.App., 522 S.W.2d 214. Cr.App., (1976); Rejcek S.W.2d culpable Where a mental state is State, 164; Tex.Cr.App., 545 S.W.2d Posey offense, an element of failure allege State, 162; Tex.Cr.App., 545 S.W.2d Ex this element renders the indictment funda Garcia, parte 432; Tex.Cr.App., 544 S.W.2d mentally parte Garcia, defective. Ex Tex. Lewis, parte Ex Tex.Cr.App., 544 S.W.2d Cr.App., 544 S.W.2d 432. The indictment 430; State, Willis v. Tex.Cr.App., 544 challenged is here therefore fundamentally 150; Huggins State, S.W.2d Tex.Cr.App., defective. 147; 544 S.W.2d Ronk v. Tex.Cr. 123; App., 544 stated, S.W.2d Pickett v. For the granted; reasons relief is 868; S.W.2d Timms v. the conviction is set aside and Tex.Cr.App., the indict- 424; Ex ment ordered dismissed. Jones, Tex.Cr. 179; App., 542 S.W.2d Adams v. PHILLIPS, Judge, concurring. For the reasons set forth in Davila v. V.T.C.A., Penal 1.07(a)(13) Code Sec. State, Tex.Cr.App., 606, agree 547 S.W.2d I vides: “ that the indictment fundamentally defec ‘Element of offense’ means: tive, allege because it fails to culpable a conduct; (A) the forbidden I solely mental state. dissent on the (B) the required culpability; ground permit a collateral attack (C) any result; required upon a final upon of conviction (D) negation any exception ground of a defect in the indictment the offense.” material element is omission of a an undue V.T.C.A., 6.02(a) (b) Penal Code Sec. expansion corpus. of the writ of habeas As provides: indictment, inquiry to a defective on habeas “(a) Except provided as in Subsection solely should be limited to whether (b) section, person a does not com- there a valid existed law under which a mit an offense unless intentionally, he drawn, valid indictment could have been knowingly, recklessly, or with criminal parte Long, 135 Tex.Cr.R. negligence engages in conduct as the def- 1066; Beto, (5th Bueno v. 458 F.2d 457 Cir. inition requires. offense 1972), years and our decisions of recent “(b) If the definition an offense does holding otherwise should be overruled. prescribe state, a culpable However, mental the majority since of this Court culpable view, mental state is nevertheless re- with me in this without alter- differs view, my accept expansion such corpus by my writ of habeas brethren as law present majori- of this State until a

ty this Court concludes This otherwise. so, in order equal to afford protection *3 petitioner herein, of laws to the the I con- F. Vance, Atty. Clyde Dist. S. Carol

cur result. in the Houston, III, Jim DeWitt, Atty., Asst. Dist. McAn- State’s David S.

D. Austin, Asst. for gus, State.

BROWN, Commissioner. of habeas application an for writ This is Charles PRINCE. 11.07, V.A.C. to Art. corpus filed C.P. convicted, pleas was on Petitioner Appeals Court of Texas. with mal- of murder of the offenses guilty, April 27, 1977. by robbery 158998 and ice in Cause No. 159002, and assessed in No. firearms Cause on cases both imprisonment life terms perfected.1 appeals were 1971. No for writ of application Petitioner’s above-men- both alleges that trans- of the same out offenses arose tioned victim, thus the same and involved action carve been allowed should have the State indict- Copies only one offense. in both ments, sentences judgments on occurred that the offenses show cases cases both the victim in July Pursuant Bernardo Cardinas. being one hear- Court, evidentiary an of this an order cir- the facts and develop was held to surrounding the offenses. two cumstances original of facts of The statements during into evidence were admitted trials evidentiary contained hearing, which Petition- stipulations of evidence. certain state- eyewitnesses’ confession er’s original were at the admitted ments stipulation. confession petitioner’s a review of

From statements, is clear it eyewitnesses’ and the co-defendant, Her- petitioner and his that Griffin, restau- hamburger man entered morning m. on the shortly 2:00 a. rant after challenges also validity pled three other in- mined that any dictments on date, but we have merit. deter- are without those convictions