Robles v. State , 1983 Tex. Crim. App. LEXIS 1095 ( 1983 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Judge.

Appellant was convicted of burglary of a vehicle. Punishment was assessed at five years’ confinement and a $1000 fine. The Corpus Christi Court of Appeals reversed and remanded the cause after finding that the jury charge contained unassigned fundamental error. See Robles v. State, 628 S.W.2d 267 (Tex.App. — Corpus Christi, 1982).

Appellant was charged under V.T.C.A., Penal Code, Section 30.04, with burglary of a vehicle. Section 30.04(a) and (b), reads as follows:

“(a) A person commits an offense if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft.

“(b) For purposes of this section, ‘enter’ means to intrude:

(1) any part of the body; or

(2) any physical object connected with the body.”

The indictment charged that appellant “. .. did then and there with intent to commit theft, enter a vehicle without the effective consent of (the owner).... ” (Emphasis added)

The court’s charge to the jury authorized a conviction if the jury found that appellant “... did break into or enter a vehicle.... ” The Court of Appeals found that the charge submitted a theory of the offense not pled and thus contained fundamental error.

In their Practice Commentary under Section 30.04, Searcy and Patterson write:

“... ‘Breaking’ into a vehicle is simply another variety of burglarious entry. As the commentary on Section 30.02 suggests, ‘breaking’ or forcible entry was required under the old code in the instances in which a trespassory entry without force was insufficient to constitute burglary.... This code, however, makes trespassory entries at any time sufficient, and ‘breaking’ or any use of force is immaterial.”

It is clear that, although the terms “enter” and “break” are not synonymous, under the facts of the instant case the term “break into” includes the term “enter.” The State proved that entry into the vehicle was accomplished after the glass part of a window vent had been pried and broken out. The appellant then reached inside, opened the door and entered the vehicle. Under these facts, it was impossible for the appellant to “break into” the vehicle without “entering” the vehicle as defined in Section 30.04(b), supra. Thus, under the charge given, if the jury found that appellant “did break into” the complainant’s vehicle, the jury necessarily found that appellant “entered” the vehicle.

This Court has faced similar situations in the past. In Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979), the indictments alleged that the appellant threatened and placed the complainants in fear of imminent bodily injury. The court’s charge authorized conviction if the jury found that appellant threatened and placed the complainants in fear of imminent bodily injury or death. This Court found that such a charge did not enlarge on the indictment because proof of threatening and placing in fear of death is not different from (or less than) proof of threatening and placing in fear of bodily injury. See also, Jones v. State, 620 S.W.2d 129 (Tex.Cr.App.1981); Payne v. State, 596 S.W.2d 911 (Tex.Cr. App.1980).

In the instant case, the court’s charge did not enlarge on the indictment because proof of “breaking into” was not different from (or less than) proof of “entering.” The judgment of the Court of Appeals is reversed and the case is remanded to the Court of Appeals for consideration of the ground of error raised in appellant’s brief.