Doyle v. State

OPINION

This is an appeal from a conviction for unlawful possession of a firearm by a felon. V.T.C.A. Penal Code, § 46.05. Punishment, enhanced by two prior felony convictions, is imprisonment for life.

Appellant challenges the State’s proof of the two enhancement convictions. The sufficiency of the evidence to sustain the conviction is not challenged. In the interest of justice, however, we note fundamental error in the court’s charge, and reverse appellant’s conviction on that ground.

The indictment in this case alleged that appellant knowingly and intentionally possessed a firearm away from the premises where he lived, having previously been convicted of burglary, a felony offense involving an act of violence to property.

In applying the law to the facts, the court charged the members of the jury that they should convict appellant if they found that he:

... was a person who had been convicted of a felony involving violence to property, namely Burglary on February 10,1969, in the Criminal District Court of Jefferson County Texas in cause # 27436, and who possessed a firearm away from the premises where he lived, . ..

*734The charge failed to require the jury to find that appellant had a culpable mental state when he engaged in the conduct that constituted the offense. A culpable mental state is required to establish an offense under § 46.05, supra. Tew v. State, 551 S.W.2d 375 (Tex.Cr.App.1977); V.T.C.A. Penal Code, § 6.02. The failure to include an essential element of the offense in the charge applying the law to the facts is fundamental error. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1978); West v. State, 567 S.W.2d 515 (Tex.Cr.App.1978). A required culpable mental state is an essential element of the offense and must be included in the charge. West, supra.1 Appellant’s conviction cannot stand.

The judgment is reversed and the cause remanded.