*1 communication be the must action which
causes the annoyance victim’s or alarm. of
Failure charging instrument
instant case to tie the communication
the appellant to the victim’s annoyance
alarm was fundamental error. judgment of Appeals the Court of
should be reversed and the or- information
dered dismissed. I dissent.
ODOM, MILLER, JJ., join TEAGUE and opinion.
in this LANDRY,
Joseph Appellant, Randall Texas, Appellee.
The STATE of of Appeals
Court Criminal Heath, appellant.
Robert A. Holmes, Jr., Ray John B. El- Hinton, M. Speece vin and Charles Asst. Form, A.B., repetitious Ch. “[Commencement 1] munication in an offensive and [or intentionally (or place intentionally action then and there and an manner] one) anonymous telephone knowingly recklessly] annoyed more call to [or _ hour, annoy at an C.D. unreasonable wit: alarmed intended [or alarm] specify legitimate purpose recipient without a com- of said C.D. call [or calls].”
29 Huttash, allege one of the two Robert indictment must Attys., Walker, disagreed court with that Asst. methods. The Atty. and Alfred State’s Austin, contention. for the States State. Code, 30.04 uses Penal Section only and “enter” and
the term “break into”
“enter,”
“en-
but the definition of
defines
OPINION
to include “break
enough
ter”
broad
is
that a defendant
allegation
into.” An
DALLY, Commissioner.
is no
and is
“break into” a vehicle
broader
is an
from a conviction for
appeal
This
alleged
within the
term
actually included
vehicle;
the
burglary
the offense of
of a
in V.T.C.A. Penal
“entry” as it is defined
punishment,
by
prior
which is enhanced
a
Code,
Penal
30.04. V.T.C.A.
Section
conviction,
for 12
felony
imprisonment
is
30.04 provides:
years.
if,
an offense
“(a)
A
commits
appellant
The
asserts that the indictment
consent of the own-
without the effective
fundamentally
and the court’s
are
charge
or
er,
into or enters a vehicle
he breaks
defective and that
the evidence is insuffi-
a vehicle with intent to com-
any part of
support
cient to
the verdict.
or theft.
any felony
mit
The
that
the
appellant’s argument
section,
of this
“enter”
(b)
purposes
For
are fun
charge
indictment and the court’s
to intrude:
means
defective are based on the alle
damentally
body;
of the
or
(1) any part
gation
appellant
in the indictment that the
with
(2)
object connected
any physical
the
did “break and enter” the vehicle and
body.
the
charge
jury
court’s
which authorized the
to
section is a
(c) An offense under this
convict the
if it found he did
felony
degree.”
of the third
ap
“break into or enter” the vehicle. The
New
by
is defined Webster’s
“Intrude”
pellant
says
first
the omission of the word
ed., una-
Dictionary, 2d
International
following
“into”
the word “break” renders
(something) in
“To thrust or force
bridged,
argues
the indictment defective. He
that
force; to invade.”
To enter
upon
...
“break
not an
alleging
....
vehicle” is
“entry”
of the term
the definition
Since
court,
argues
offense. Then he
that the
is
30.04
in V.T.C.A.
the
into” in
using
statutory words “break
into,”
“breaking
include
enough to
broad
charge,
the
authorized a conviction on a
two
“breaking into” are not
“enter” and
charged
not
in the
His
indictment.
in which the of
or methods
separate ways
is
argument
related
that the court erred
com
may
of a vehicle
be
burglary
fense of
the term
defining
“break into” rather
mitted;
it includes
alleged
is
“break,”
the
defining the word
which was
Therefore,
indictment is
the
breaking into.
These
alleged
word
the indictment.
defective,
the court
fundamentally
not
appeal;
three contentions are first made on
the term “break
defining
err in
indict
quash
there was no motion to
the
to
into,”
unnecessary
it would be
although
the
objections
there were no
ment and
of the words “break
a definition
submit
charge.
statutorily
words are not
into” since those
argument
premise
appellant’s
The
for the
meaning.
a common
they
have
defined
are two
“breaking
“entry”
is that
into” and
(Tex.Cr.
693
Adami
v.
committing the
or methods of
ways
distinct
State, 496
Hogan v.
594
S.W.2d
App.1975);
sup-
of a vehicle. For
burglary
offense of
State, 411
Castillo
(Tex.Cr.App.1973);
Washington v.
the
relies on
port
appellant
(Tex.Cr.App.1967).
741
S.W.2d
(Tex.Cr.App.1980).
603
859
the ev
complains that
appellant
The
“breaking
the contention was that
There
judg
support
insufficient
or means
idence is
“entry”
ways
were two
into”
charge
erred in its
the court
that
the ment and that
the offense and
committing
allowing
jury
to convict him on the act
consent of the
owner.
court did not
of another in breaking into a vehicle when
charge
jury
on the theory
parties.
appellant was
charged
not
with the criminal
The judgment
is affirmed.
responsibility for another’s act. The appel-
lant
together
weaves
argument
under
CLINTON, J., concurs for
these
grounds
two
of error. A brief sum-
*3
in
concurring
State,
his
in
opinion Robles v.
mary of the facts is necessary to this discus-
back to the parking lot. When they ap-
proached the automobile the front door on
the passenger side open was and there was
a man sitting leaning into the car. The man, who is the had in his hand MAYS, Appellant, Noble D. some “warranty papers dealing with the ownership of the Cadillac.” The other man Texas, Appellee. STATE of returning was from parked a van nearby. Both men were arrested. The officers found that the man other was a locksmith Court of Criminal Appeals of who had received an call emergency from a man who said he was Paul Hern. The locksmith went to the address and the appellant, who represent- came to the door Hern,
ed himself to be Paul took lock-
smith to the automobile. The locksmith just opened
had it “quick with a stick” and making
was to fit the keys automobile lock
when the officers came back. The owner of
the automobile testified he give
consent into his automobile. The
evidence is sufficient to amply support the
verdict. See Simmons v.
137 (Tex.Cr.App.1979).
The evidence would support a conviction
on that appellant was a party
the offense in that he was acting with the
required culpability he caused an in-
nocent engage prohib- conduct
ited by the definition of the offense de-
nounced in
30.04. V.T.C.A. Penal
7.02(aXl). The evidence also support would
his conviction for his own conduct as he
actually entered the automobile without the