Smith v. State

652 S.W.2d 410 (1983)

Lonnie E. SMITH, Jr., Appellant,
v.
The STATE of Texas, Appellee.

No. 010-83.

Court of Criminal Appeals of Texas, En Banc.

June 15, 1983.

Stanley G. Schneider, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr. and David Mendoza, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was convicted of burglary of a habitation. The court assessed punishment, enhanced pursuant to V.T.C.A., Penal Code, § 12.42(c), at 16 years' imprisonment.

The Court of Appeals for the 1st Supreme Judicial District reversed the judgment on the ground that the court erred in failing to grant appellant's motion to quash the indictment for failure to allege in what manner appellant "entered" the habitation in question.^[1]

We have held that the act of intrusion, whether by the body or by physical object connected thereto, is the "act" within the meaning of V.T.C.A., Penal Code, § 30.02(b), and that further elucidation of the means of entry is not necessary for an indictment such as the instant one to withstand a motion to quash. Marrs v. State, 647 S.W.2d 286 (Tex.Cr.App.1983).

The judgment of the Court of Appeals, 646 S.W.2d 497, is reversed. The cause is remanded to that court for consideration of the remainder of appellant's grounds of error.

NOTES

[1] V.T.C.A., Penal Code, § 30.02(b) defines "entry" as "to intrude (1) any part of the body; or (2) any physical object connected with the body."