*1 DOUGLAS, Before and ROBERTS ODOM, Billy HOLLOWAY, JJ. Appellant, Bell Texas, Appellee. The STATE of ODOM, Judge. from a conviction for punishment criminal wherein Panel No. 2. imprisonment and a days assessed at 90 left him Appellant’s fine. wife had $500 bursting and he was convicted of into the in the home of his father-in-law at one
morning demanding where she to know was.
Appellant’s first of error asserts failing prop- trial court erred in facts in its erly apply the law to the to the criminal information un- jury. The charged stated in der which Holloway did then part “Billy that: Bell knowingly enter Moore, a habitation of Eules consent of Eules Moore. effective jury as follows: The court evidence you find from the “Now if in Ellis beyond a reasonable doubt that on or about December, then and there enter controlled, occupied, and in the Moore, hereinafter without said and the said defend- tive consent do notice knew and had that his guilty find the defendant charged.” omission of the Appellant asserts that “intentionally knowingly” from words in that is fundamental knowledge intent are elements charge. included in the crime and must be court, charge, gave definitions of intentionally. this Court’s by This is controlled case Jordan, Howard C. Rubin and John F. West v. 567 S.W.2d disposition of Dallas, involving codefend- West’s and the cases ants, State, Tex.Cr.App., 572 Knize, County Atty. West v. Gene and Constance Tex.Cr. McGuire, County Atty., Asst. Wax- West, ahachie, the defend App., Aus- 103. In trespass. tin, with criminal was also ant State.
377
you find from the evidence
Now if
charged
The indictment
that he did “inten
in
doubt that
Ellis
beyond a reasonable
knowingly
in
tionally and
enter and remain
about the
on or
a habitation”
the
stated
jury charge
while
December, 1976,
the
jury
it
the
could convict if
found
enter a
and there
did then
unlawfully
defendant
then
“did
controlled, occupied,
in
the
habitation
enter and
in a
remain
habitation.
Moore, hereinafter
V.T.C.A.,
This Court determined
while
that
said
expressly
Penal Code
30.05
not
Sec.
does
said defend-
and the
tive consent to do
prescribe
state,
culpable
culpa-
a
mental
the
had notice
knew and
intentionally, knowing-
ble mental state of
entry
that
was
his
ly,
recklessly
required
or
was
as an element
charged.
guilty as
defendant
find the
V.T.C.A.,
provisions
of the offense by the
added)
(Emphasis
Penal Code
6.02. The fundamental
Sec.
disagree
contention
We
with the State’s
in this
trial
case occurred when the
those
distinguishable from
that this case is
the
charge
jury
court failed to
the
with all
is
It
original opinion.
the
cases
in
cited
conformity
elements of
offense
with
the
in
from the information
abundantly clear
charging
the
document.
also Windham
See
the
in
former document
charge
the
that
the
State, Tex.Cr.App.,
v.
cases. rehearing State’s motion for is over-
ruled.
DALLY, J., dissents. *3 Tobin, Huntsville, on
Michael Austin, on rehearing, for the State. parte
Ex Donald Gene MIXON. CLINTON, Judge. Appeals Court of Criminal of application for writ of habeas En Banc. 11.07, V.A. pursuant to Article corpus filed 17, hearing C.C.P. After a November 1979. made and application the trial court 1979. lawof findings filed of fact and conclusions which, only provide pertinent part, ap- setting consideration for our suggest legal correctly plication but also relief that must follow: decision and FACT “FINDINGS OF Mixon, Petitioner, Donald Gene 1972 in the January of convicted Court, Deaf District 69th Judicial in Cause No. value grain over the 2190 for theft of $50.00, appealed. of Texas was insuffi- the evidence held that conviction, there- support the cient to and re- reversing judgment fore cause. Mixon v. manding petitioner August In in said Cause a second time tried for convicted, received No. years to seven from two a sentence of of Correc- Department in the Texas Upon petitioner’s tions. conviction, this second of Crimi- by the Court was affirmed opinion Per Curiam Appeals in its nal