Cronen v. State , 1983 Tex. App. LEXIS 4729 ( 1983 )

JUNELL, Justice.

A jury found appellant guilty of the offense of criminal trespass. The court assessed punishment at thirty days’ confinement, probated for six months plus a fine of $200.00. We reverse.

By ground of error three, appellant calls our attention to an error in the court’s charge. In applying the law to the facts, the court instructed the jury:

Therefore, if you believe from the evidence beyond a reasonable doubt that on or about the 2nd day of May, 1982, in Harris County, State of Texas, the defendant, Charles Donald Cronen, did intentionally and knowingly enter or, after receiving notice to depart, remain on property owned by Jeff Dunn, without the effective consent of the said Jeff Dunn, you will find the defendant guilty as charged, (emphasis added)

TEX. PENAL CODE ANN. § 30.05 (Vernon Supp.1982-1983) provides in pertinent part: (a) A person commits an offense if he enters or remains on property on in a building of another without effective consent and he: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so.

The charge in the instant case authorized the jury to convict upon proof that appellant intentionally and knowingly entered the property of the complainant without the effective consent of the complainant; this does not constitute an offense. As written, the charge fails to require a finding of “notice that the entry was forbidden” before permitting a conviction on a finding that appellant “entered” the property without the owner’s consent. This constitutes fundamental error which necessitates a reversal of the conviction. Cumbie v. State, 578 S.W.2d 732, 735 (Tex.Cr.App. 1979). The judgment of the trial court is reversed and the cause is remanded for a new trial.