Williams v. State
505 S.W.2d 838
Tex. Crim. App.
1974
Check Treatment

*1 WILLIAMS, Appellant, Clarence Texas, Appellee.

The STATE of 47462. No. Appeals Court of Criminal of Texas. Feb. Patterson, Houston, W. for

James lant. Vance, Atty., Phyllis

Carol S. District Bell, Gregory Laughlin, Attys., Asst. Dist. Houston, Vollers, Atty., D. State’s Jim Austin, Buddy Stevens, Atty., Asst. State’s for the State.

OPINION DALLY, Commissioner. pun-

The is for burglary; conviction ishment, imprisonment years. for two ques- We are first confronted with the sufficiency tion of the of the indictment. indictments for the of- burglary, alleging entry by discharging firearms into a house with person has through years given this Court much difficulty.1 Burglary, pp. Tex..Tur.2d, 180- that the therein. And indictment need not shooting : in- follows that the was done with general; Discharge felony. “In Subsequent cases “Burglarious entry may disapproved holdings be effected and held of firearms accused must have acted missile into a any with intent tention to or the crime Early early therein. cases held theft. But it now rule has been reaffirmed and the later (footnotes omitted). overruled.” *2 «39 in The case from which the confusion parts of the indictment The relevant State, Tex. to stem is 31 seems Garner this case read as follows: 22, 19 333 S.W. that . . CLARENCE WIL case, in day of on or about the 10th LIAMS firearm, al- by discharging a Jan A.D.1972, and County in said uary, felony of- the leged an intent to commit burgla the of did commit murder,3 stated: the Court also ry by there “Article 707 of our Penal Code [most rifle, arms, to-wit, 1393, de- recently V.A.P.C.], situate, in Winton, the with Sam fining an what constitutes a felo committing tent then and there that ‘it be consti- declares he, to-wit, ny, the said CLARENCE discharge of firearms or tuted WILLIAMS, dis and there house, missile into the rifle into said charge said any person therein.’ intent to said to then and statute, to provision Under this Winton, then the said Sam Winton Sam discharge into a house with he, house, and being in said and therein is WILLIAMS, force burglary, constitutes all the did and the said CLARENCE necessary and essential at the said Sam and there shoot then crime.” in said Winton, who was con house, and there was then which 1, Then in Winton, he, by the said Sam Court, relying 121 1120 WILLIAMS, did said CLARENCE part language above discharge said and there then case, suf- held that it was from the Garner aforesaid, with as said rifle into ficient, into a house was the said Sam consent of out discharge of a 2 Winton.” 2. The indictment to this volume 4 Branch’s (Cum.Supp.1968-1969). “Form for turn was overruled “Notwithstanding ruled in Shackelford 333.” Crim 1120, Broner v and approved), follow 99 L ed v SW2d [Tex.] 4 Branch’s the indictments 75 S [R.] 58 Crim [125] [Tex.] cert den 348 US the safest following Ct 371, indictment: [Tex.] Ann.P.C., approved [Tex.] 75 S Ct 290. See indicates some [R.] this form: follows the SW 203 SW the decision Crim Crim reh den 348 US 195, 200 note set out 576, Crim practice v Broner § forms 2529.1, 2529.1, and Alexander [R.] [R.] which form [R.] are v doubt would be in 1, SW2d also Garner supplement apparently (which was over- suggested Bailey SW121 19 SW p. p. [Tex.] as to L ed dis- in v v and state and there Woods, house then and there county, and there shoot and wound discharge the intent John and Tutson house, the said dwelling house; Williams, Woods, sent,’ pistol, did then and there shoot and the consent of the said pistol else . . ...” Burton, August, and then . That Wilson White, Williams, Burton, said then and there to there, aforesaid, then discharging firearms, wit, he, he, the said John Burton as pistol the said White, A.D. ‘Tom Oliver authorized to the said did of John into said house with 1889, malice Garner, Burton, and Vina Tutson, Williams, in Garner, situated kill and controlled Burton, Garner, said —the nighttime give the 24th Tutson, Garner, murder Woods, White, county wit, a Eddie then said con- one did the defendant with the intent to commit a the offense of felony, namely, theft.4 murder with afore- malice Thus, thought. reliance on was un- adopted It necessary. part first of the statement in Garner “to firearms into a house with pleadings If the are considered and the *3 injure any person intent to disregarded dicta addressing burglary,” considering quali- question, discussed, including the above sentence, fying phrase in the same “and Railey only holding is the case that the in- constitutes all the force and dictment, burglarious entry is necessary and essential to the crime.” by discharging a firearm into a only allege per- need an intent to a In Shackelford v. 83 Tex.Cr.R. therein, son and need not (1918) a or the offense of theft. appellant failed to And in case the Court unlawfully “Did then and there indictment. of the verbatim the words burglary wit, discharging a a requirements of Determining the gun, occupied into the house and con- determining the dictment necessitates first Shackelford, Lizzie discharging elements Does of the offense. intent then and there to a firearm a with the intent to house Shackelford, Lizzie and the said Lizzie someone therein constitute being in said Shackelford then and there must there also commit a be house, against peace dignity felony or the offense of theft?

the state” pro- Article Vernon’s was held to be The Court insufficient. vides : fully discussed the case and “Burglary implicitly overruled it. burglary is constituted in Broner v. 150 Tex. by force, entering a house threats or (1947) 200 S.W.2d 191 at or in like manner en- specifically stated that it overruled tering a State, supra, Shackelford v. and that it ad- remaining concealed reasoning hered and conclusion in State, supra, Garner v. v. with the intent in either case of commit- 5 charges supra. in Broner The indictment ting felony a or the crime of theft.” rehearing in v. On wit, a he. Davidson, X, P. motion was overruled Broner, the said Dock dissent, dissenting. in which he His with malice extensively appellant’s gun brief from into said house with the intent State, 58 Tex.Cr.R. 125 S.W. Neal; v. kill and murder Olivia brief, copied The excellent the said Olivia Neal history legislative opinion, lie, traces said Dock burglary Broner, time statutes from earliest did then and there shoot in this Neal, State. wound the said Olivia said house private then and there the residence The indictment the Broner case of the said Olivia Neal and then and there follows: controlled and the said Olivia “ Broner, house; dwelling ‘Dock there unlaw- Neal as fully, night Broner, time commit did then and said Dock burglary shotgun into said house wit, shotgun, consent ” Neal, of Olivia Olivia Neal.’ V.A.P.C., provides: v. 233 S.W.2d (1950); Lowe Tex.Cr.R. by breaking ‘Burglary’ Greer (1956); (Tex.Cr.App.1969). who, S.W.2d burglary guilty “He is also Moreover, also al the indictment must intent to commit lege particular the elements of the daytime.” breaking, enters charged the defendant V.A.P.C., provides part: entry. commit after Mitchell v. S.W.2d 1018 private night residence “Burglary Digest, cases collated under 6A Texas Bur private “The offense of now hold en- night constituted residence requirements well to apply as force, residence tering private it is alleged has been made *4 any night, or or threats any firearms as to oth discharge of private residence entering a manner burglary. er su See re- or any either pra. While the indictment before us al until maining concealed felony, it does leges intent to commit a not intent, in case of commit- any ap allege felony elements of crime of theft. ting felony, or the pellant is charged with to commit entry.7 after V.A.P.C., provides There is a complete charge failure to “ ‘Entry’ defined offense of burglary further since the indictment does not made was the en- confined to not the intent to it commit theft and fails to body; may it consist trance of the whole alleges describe the it ap- any part purpose for the entry of pellant gaining intended to after it to the aof discharge of be constituted firearm. The Court’s based missile fire-arms or other faulty permitted indictment lant’s conviction for an act not made a any in- introduction of crime our statutes. raised for taking from purpose of strument for appeal the first time error is funda- al- personal property, the house mental and must be sustained. body the of- part though no introduced.” judgment reversed, should be fender dictment ordered dismissed. V.A.P.C. hold that Opinion approved by the Court. distinct separate does create not discharge of “entry” as arms, defines further rather but MORRISON, Judge (dissenting). burglary statutes. in other used I would indictment in hold this held that to generally It has been subject quash case was to a motion to but constitute does not fundamental error. constitute must be made Farris of theft. respectfully See I or the dissent. examples Y.A. 7. For Articles of valid indictments repealed glary P.C., others, among alleged entry been have cases where it is by discharge has been replaced Legislature Section 30.02 see Alexander January Code, Penal effective the new 160 State, supra. and Broner v.