Comment

How the elements of the basic alternative ways of committing burglary are best distinguished and separated depends in part on what if any culpable mental states are required regarding the various elements.

The Committee was split on the culpable mental states required. The case law is somewhat contradictory. In Day v. State, 532 S.W.2d 302, 305 n.1 (Tex. Crim. App. 1975), the court of criminal appeals announced: “[W]e hold that to constitute the offense of burglary by [entering and] committing a felony or theft, the proof must show that the entry was either knowingly or intentionally done.” Day found this requirement in Tex. Penal Code § 6.02(b).

But in Sylvester v. State, 615 S.W.2d 734, 735 (Tex. Crim. App. [Panel Op.] 1981), the court held a jury charge in a prosecution for burglary by entry with intent not fundamentally defective for failing to require a culpable mental state other than intent to commit the target offense.

Dictum in DeVaughn v. State, 749 S.W.2d 62, 64–65 (Tex. Crim. App. 1988), indicated that all three types of burglary set out in Tex. Penal Code § 30.02(a) require—in addition to any culpable mental state explicitly required—that the defendant be proved to have acted intentionally or knowingly. DeVaughn did not undertake to explain how that result could be reconciled with the terms of section 6.02.

The matter was more recently addressed in McIntosh v. State, 297 S.W.3d 536, 550 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (opinion on petition for discretionary review), explicitly involving jury instructions on burglary by entry with intent to commit assault. All members of the court agreed that this type of burglary requires a culpable mental state applied to the entry element.

The McIntosh majority nevertheless held—relying on Sylvester—that the jury need not be so instructed because somehow this culpable mental state is “subsumed into” the necessary intent to commit an offense. McIntosh, 297 S.W.3d at 543. Justice Alcala disagreed and would have held that instructions must include this culpable mental state. She found that on the facts of the case the error in the jury instructions did not cause the egregious harm necessary for relief. McIntosh, 297 S.W.3d at 544–50.

Whether section 6.02(b) applies may differ based on the ways in which burglary can be committed. Most significantly, there may be differences between burglary by entering with intent to commit an offense (under Tex. Penal Code § 30.02(a)(1)) and burglary by entering and committing or attempting to commit an offense (under Tex. Penal Code § 30.02(a)(3)). Burglary by entering with intent to commit an offense arguably prescribes a culpable mental state within the meaning of section 6.02(b), and thus the section 6.02(b) requirement might be inapplicable. Burglary by entering and committing an offense arguably does not so prescribe a culpable mental state and thus does trigger section 6.02(b).

The Committee concluded that section 6.02(b) applies to all three types of burglary, and under section 6.02(c) this requires intent, knowledge, or recklessness. There seems to be no basis on which the legislature could have made a distinction between the ways of committing the offense, and thus it must not have intended any such distinction.

A majority of the Committee also concluded that, as with criminal trespass, the required culpable mental state applies only to the nature of conduct element of entry. This application poses the same problems as those in criminal trespass, and thus the burglary instructions are—in this regard—nearly identical to the trespass instructions.

As with trespass, a minority of the Committee believed the culpable mental state applies to other elements, most importantly the requirement that the place entered be what is required by the applicable portion of the statute. Thus, in their view, the instructions should require that the defendant be proved to have been at least reckless about whether the place entered was a building (or a portion of a building) not at the time open to the public or a habitation.

In any case, the Committee concluded the instructions should include explicit reference to the culpable mental state required by section 6.02. McIntosh and perhaps Sylvester may be authority for the proposition that a trial judge does not err in refusing to explicitly incorporate this reference into the instructions, but the better practice is to specifically set it out.