Glenn v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of burglary of a habitation under V.T.C.A., Penal Code Sec. 30.02(a)(3). Punishment was assessed at 99 years. The Court of Appeals affirmed the conviction in an unpublished opinion. Petition for review was granted to consider appellant’s contention that the jury charge was fundamentally defective which the Court of Appeals rejected.

The indictment alleged that appellant:

“did then and there intentionally and knowingly enter a habitation without the effective consent of N_ G_, the owner, and commit the felony offense of rape upon the said N_G_”

The court’s charge, in applying the law to the facts of the case, instructed the jury:

“Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Thomas Edward Glenn, did, in McLennan County, Texas, on or about July 11, 1981, without the effective consent of N_G_, the owner, enter a habitation and commit the felony offense of rape, you will find the defendant guilty.”

Although the statute for burglary does not expressly provide for a culpable mental state, Sec. 30.02(a)(3), supra, it has been held that a culpable mental state is nevertheless required by the provisions of V.T. C.A., Penal Code Sec. 6.02(b) and (c). Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975); Davila v. State, 547 S.W.2d 606 (Tex.Cr. App.1977); Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977). It is also established that omission of the essential element of the culpable mental state from the jury charge application of the law to the facts constitutes fundamental error requiring reversal. West v. State, 567 S.W.2d 515 (Tex. Cr.App.1978).

The judgments of the Court of Appeals and the trial court are reversed and the cause is remanded.