Ex parte Prestridge , 1980 Tex. Crim. App. LEXIS 1405 ( 1980 )

OPINION

PHILLIPS, Judge.

This is an application for a writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

Petitioner was convicted of the offense of burglary of a building on November 15, 1978, in Cause No. 18.772A in the 47th District Court of Potter County. Punishment, assessed at imprisonment for four years, was probated. Subsequently probation was revoked, and sentence imposed.

Petitioner urges that the indictment in this cause is fundamentally defective. We agree and grant relief.

The elements of the offense of burglary of a building under V.T.C.A. Penal Code, § 30.02(a)(1) are:

(1) a person

(2) without the effective consent of the owner

(3) enters a building (or any portion of a building) not then open to the public

(4) with the intent to commit a felony or theft [emphasis added]

See Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975); Garcia v. State, 571 S.W.2d 896 (Tex.Cr.App.1978).

The indictment in this case alleged that petitioner: “with intent to commit theft, [broke] and enter[ed] a building, without the effective consent of Ralph Olmsted, the owner.”

It is essential to the offense of burglary of a building that the building entered not be open to the public. See the emphasized portion of element three, above. The indictment is fundamentally defective for failing to allege that the building entered was not then open to the public. Compare Garza v. State, 522 S.W.2d 693 (Tex.Cr.App.1975); Johnson v. State, 537 S.W.2d 16 (Tex.Cr.App.1976).

Relief is granted. The conviction and indictment in Cause No. 18,772A are set aside. Petitioner is ordered released from confinement as a result of that conviction.

It is so ordered.