                                    NO. 07-05-0381-CR

                                 IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL B

                                 NOVEMBER 21, 2007
                           ______________________________

                                      JAVIER MYERS,

                                                           Appellant

                                              V.

                                   THE STATE OF TEXAS,

                                                  Appellee
                         _________________________________

             FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2004-407108; HONORABLE DAVID GLEASON, JUDGE
                        _______________________________

                                 Dissenting Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       I respectfully dissent.

       Of the three counts described in the indictment, each expressly accused appellant

of entering the habitation with a specific intent, that is, to commit either assault, robbery or

theft respectively.   Because the indictment so alleged, it was incumbent upon the

prosecution to prove that appellant entered the abode with the stated intent. If the State

did not, then the evidence would not support the conviction.
       The majority is quite right when saying that the sufficiency of the evidence is tested

against a hypothetically correct jury charge. Curry v. State, 30 S.W.3d 394, 404 (Tex.

Crim. App. 2000). Yet, such a charge is one that accurately states the law, is authorized

by the indictment, does not unnecessarily increase the State’s burden of proof, or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense. Id., citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997);

Sartain v. State, 228 S.W.3d 416, 421 (Tex. App.–Fort Worth 2007, pet. ref’d). It is the

second criteria that causes me concern.

       Simply put, the offense to be incorporated within the hypothetically correct

indictment must fall within the allegations of the indictment. For instance, if there exists

several ways in which one could commit a particular crime but the prosecution alleges less

than all of them in the indictment, then it is bound by its selection. Gollihar v. State, 46

S.W.3d 243, 255 (Tex. Crim. App. 2001); Curry v. State, 30 S.W.3d at 404-05. At least

one of the means it selected. Indeed, the differing manner and means are not merely

descriptive of an element and, therefore, subject to being ignored. Gollihar v. State, 46

S.W.3d at 254 n.15. Instead, they are elemental to conviction and must be established

when alleged. Curry v. State, 30 S.W.3d at 405.

       Consequently, Malik and its idea of a hypothetically correct charge cannot be used

to morph allegations involving the manner and means by which a crime was committed to

some others that are unmentioned in the indictment. Nor can Malik be applied to relieve

the State from proving the manner and means expressed in the indictment when the

evidence actually describes some other manner and means.



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       Now, one can commit burglary in several ways. He can merely enter a habitation

and commit or attempt to commit a felony, theft, or an assault. TEX . PEN . CODE ANN .

§30.02(a)(3) (Vernon 2003). Or, he can enter a private habitation with the intent to commit

a felony, theft, or an assault. Id. at §30.02(a)(1). Or, he can conceal himself in a habitation

with the intent to commit a felony, theft, or an assault. Id. at §30.02(a)(2). In comparing

these differing manner and means of committing burglary, one sees that two of the three

come with a mens rea element tied to the accused’s entry into the edifice, i.e. §30.02(a)(1)

and (2). One has no such element, that is, §30.02(a)(3). So, if the State opts to indict the

accused under the statute and selects a manner and means accompanied by a mens rea

requirement, Gollihar and Curry obligated it to prove that the accused had the particular

mens rea when entry occurred. And, that is what the State attempted here.

       In the count of the indictment upon which appellant was eventually tried, (i.e. Count

2), the prosecutor accused appellant of “enter[ing] a habitation with intent to commit

robbery and did then and there commit the offense of robbery.” (Emphasis added). So,

having accused appellant of entering the house with such an intent, it opted to prosecute

appellant for burglary of the type described in §30.02(a)(1) of the Penal Code. In other

words, it obligated itself to prove he entered the abode with the intent to commit a felony,

theft, or an assault. This, in turn, meant that in assessing whether it carried its burden of

proof, we must determine, among other things, if there exists evidence upon which a

rational factfinder could hold beyond reasonable doubt that appellant intended to commit

robbery when he entered the house. Malik cannot relieve us from doing so. Nor can it be




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used to convert allegations founded upon §30.02(a)(1) that tie entry to a particular mens

rea to one founded upon §30.02(a)(3) that has no such link.

       Moreover, that both the prosecutor, appellant, and trial court read the indictment as

encompassing burglary under §30.02(a)(1) is established by their own words.              For

instance, the trial court charged the jury that it could not convict unless it found, beyond

reasonable doubt, that appellant “enter[ed] the habitation with intent to commit robbery and

did then and there commit . . . robbery . . . .” (Emphasis added). Following that, the State

closed by arguing:

       Do you really think that day, . . . when that Defendant and his cohort, . . .
       were breaking in to . . . John Hernandez’s home with this crow bar that he
       didn’t have a plan on how he was going to get out of there if the owner had
       come home?

                                         *    *   *

       . . . he knew what he was going to do. He knew that this [crowbar] was the
       weapon he was going to use if he had to get out . . . . He went in there with
       the intent to commit robbery and he did commit the robbery.

                                         *    *   *

       He went in there with the intent to commit robbery. And, guess what, folks?
       He did.

(Emphasis added). In turn, defense counsel told the jury that:

       . . . what is lacking here is the intent to commit the robbery. The phrase ‘and
       did commit the offence of robbery,’ that’s true. That did happen . . . . What
       you’re looking at is the intent, the specific intent, at the beginning of this.
       That’s what the law defines. If the specific intent was to commit theft or
       commit robbery. And I will submit to you, all the evidence in this case
       indicates to you it was theft. It was not robbery. There was a robbery, but
       that was not the intent on the entry into the habitation.




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(Emphasis added). Each of these excerpts reveals the crime for which appellant was

being prosecuted. It was burglary, of course, but the type of burglary that required entry

with a specific intent to do some other criminal act, i.e. burglary under §30.02(a)(1). There

can be no other logical reason why the litigants would so argue if appellant’s mens rea

when entering the home was unimportant. And, those thoughts were incorporated into the

jury charge written by the trial court. Everyone read the indictment as encompassing

burglary under §30.02(a)(1), as opposed to burglary simply under §30.02(a)(3).

       In sum, neither a legal nor factual sufficiency issue can be decided without

assessment of the evidence touching upon appellant’s mens rea at time of entry. And,

because the majority concludes otherwise, I respectfully dissent.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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