## Facts

- Clifton McAfee was charged with burglary of a building under Tex. Penal Code § 30.02(a)(1) and was convicted by a jury.
- The State’s theory was that McAfee entered a building not open to the public, without the owner’s effective consent, and at the time of entry had the intent to commit theft.
- The indictment alleged that McAfee “intentionally and knowingly” entered without consent and with intent to commit theft.
- At punishment, McAfee was tried as a habitual offender based on prior-felony allegations; after the jury found those allegations true, the trial court assessed life imprisonment.
- In the guilt–innocence jury charge, the abstract portion defined burglary using the words “intentionally or knowingly.”
- The application paragraph authorized conviction if the jury found McAfee entered without effective consent “with intent to commit the offense of theft,” but it did not repeat “intentionally or knowingly.”
- On appeal to the Texas Court of Appeals (El Paso), McAfee argued the omission of “intentionally or knowingly” from the application paragraph made the charge fundamentally defective and required reversal.

## Issues

1. In a burglary prosecution under Tex. Penal Code § 30.02(a)(1), is the guilt–innocence jury charge fundamentally defective when the application paragraph omits “intentionally or knowingly” but requires a finding that the defendant entered without consent with intent to commit theft?

## Decision

- No. The court held the omission did not make the jury charge fundamentally defective.
- Because § 30.02(a)(1) burglary turns on unauthorized entry plus the specific intent to commit theft at the moment of entry, requiring the jury to find “intent to commit theft” sufficiently covered the needed mental-state component.
- Relying on Texas cases addressing similar mens rea complaints in § 30.02(a)(1) pleadings (including Martinez v. State and Teniente v. State), the court reasoned that alleging and submitting the specific intent to commit theft satisfies the more general culpable mental states.
- The court overruled McAfee’s sole ground of error and affirmed the conviction and life sentence.

## Legal Principles

- Under Tex. Penal Code § 30.02(a)(1), burglary is committed by entering a building or habitation without effective consent with intent to commit theft (or another felony) at the time of entry.
- For § 30.02(a)(1), the “gist” of the offense is the entry coupled with the specific intent to commit theft; that intent must exist at the moment of entry.
- When a jury charge’s application paragraph requires the jury to find entry “with intent to commit theft,” that specific-intent finding is sufficient even if the paragraph does not also restate the general mental-state words “intentionally” or “knowingly.”
- Texas precedent treating similar mens rea complaints in indictments under § 30.02(a)(1) supports the view that pleading (and charging) the specific intent to commit theft satisfies any general culpable-mental-state requirement for this theory of burglary.

## Conclusion

Because § 30.02(a)(1) requires proof that the defendant entered without consent while intending to commit theft at the time of entry, the jury charge was adequate even though the application paragraph did not repeat “intentionally or knowingly,” and McAfee’s burglary conviction and life sentence were affirmed.


McAfee v. State, 658 S.W.2d 200 (1983)