Moore v. State

OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary of a habitation. Punishment was assessed at eight years.

At the outset we are confronted with fundamental error that requires reversal in the interest of justicé. Art. 40.09(13), V.A. C.C.P.

The indictment in this case alleged burglary under V.T.C.A., Penal Code Sec. 30.-02(a)(3), by entering a habitation and committing theft. The jury charge, in contrast, submitted the case as one charging burglary by entering a habitation with intent to commit theft, under V.T.C.A., Penal Code Sec. 30.02(a)(1). This is precisely the same…