Comment

Requisite Mental States. According to Tex. Penal Code § 30.04(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.”

The offense of burglary of a vehicle functions like the manner of burglary of a building or habitation described in Tex. Penal Code § 30.02(a)(1):

Unfortunately, as noted in our commentary on burglary, CPJC 28.1, CPJC30.1, the case law is somewhat contradictory on the elements of burglary, specifically regarding the culpable mental state. The court of criminal appeals has implied that the above manner of burglary of a building does not lack a culpable mental state because of the “intent to commit” language, Day v. State, 532 S.W.2d 302, 305 & n.1 (Tex. Crim. App. 1975), but also that a requirement of intentional or knowing entry was required but subsumed within that language. DeVaughn v. State, 749 S.W.2d 62, 64–65, 64 n.3 (Tex. Crim. App. 1988). That court has also shorthanded the gravamen of the offense to “entry without the effective consent of the owner.” Davis v. State, 313 S.W.3d 317, 342 (Tex. Crim. App. 2010). This creates a problem: if entry without consent is burglary’s gravamen, it must be explained why no mental state attaches to that lack of consent. That problem is the same with burglary of a vehicle, which apparently attaches no culpable mental states to “effective consent,” the character of the vehicle, “breaks,” or “enters.” There is no easy answer to this problem.

On one hand, if attaching a mental state to a particular circumstance indicates that it is the gravamen of the offense, Huffman v. State, 267 S.W.3d 902, 908 (Tex. Crim. App. 2008), the reverse should be true; identifying a circumstance as the gravamen should necessitate a culpable mental state. That is, if entry without consent is the gravamen, a culpable mental state should attach to lack of consent. On the other hand, it might be fair to say the actor bears the risk of non-consensual entry when he intends to commit a felony or theft. Moreover, burglary of a vehicle would not be a strict-liability offense in the absence of the knowledge of lack of effective consent, and many of the definitions of “effective consent” explicitly or implicitly require some degree of knowledge. See, e.g., Tex. Penal Code § 1.07(a)(19)(B), (C) (consent not effective if “given by a person the actor knows is not legally authorized to act for the owner” nor if “given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions”).

This Committee considered three options regarding mental state:

• Do not attach a mental state because, as per Day, and arguably as per DeVaughn’s “subsumed” theory, none is needed beyond the intent to commit any felony or theft.
• Require that the breaking or entry be intentional or knowing. There is no “reckless” application to nature of conduct. Tex. Penal Code § 6.03(c).
• Attach a mental state to the lack of consent (for all the reasons explained above).

The Committee chose not to attach a mental state to breaking or entry; it is difficult to imagine unintentionally breaking into a vehicle, undefined as that term is. The Committee did, however, choose to require that the jury find the defendant knew or was at least reckless as to whether the owner did not effectively consent to his breaking or entry. This was not a unanimous decision—departures from statutory language never are—but it was decided that it was necessary in light of more recent cases reaffirming that the core of the offense is the violation of privacy that results from entry without consent.

Identity of the Owner. The Committee also considered three options for the third element, lack of owner’s consent:

• The owner of the vehicle did not effectively consent to this breaking or entry.
• The owner of the vehicle, [name], did not effectively consent to this breaking or entry.
• [name] owned the vehicle and did not effectively consent to this breaking or entry.

The Committee chose the first option for multiple reasons. Although the identity of the owner is a pleading requirement, Tex. Code Crim. Proc. arts. 21.08, 21.09, the offense itself does not appear to require anything more than proof the defendant is not the owner. There may be cases in which there are multiple people who qualify as owners because they all share a title or possession or have a greater right to possession than the defendant. Some members were concerned that the other two options unnecessarily appeared to assume the named individual was an owner, thus creating a potential comment on the weight of the evidence. In some cases, the evidence will justify an election which will require the inclusion of the owner’s name. Sometimes it will be the better practice to put the owner’s name in the charge because there is a material variance or issues with double jeopardy. In some cases, inclusion of an owner’s name is more a function of notice and perhaps (as a result) sufficiency than it is elemental. In an appropriate case, the parties may agree on one of the other options simply to avoid juror confusion.