Indictment charges Defendant with attempted burglary of a habitation. Statutory language is properly tracked. Constituent elements of burglary are not alleged. See Young (675 SW2d 770) and Epps (811 SW2d 237). No problem so far. But what degree of offense is alleged? The indictment doesn't specify either 1st degree burg. hab. or 2nd degree burg. hab. Does it depend on the proof at trial? The evidence in my case is that the defendant cut a hole in the window and stuck his hand through, in the middle of the night. Moss (574 SW2d 542) says that should be sufficient for a presumption of theft. So it's the attempt of a 2nd degree felony - a 3rd degree.

But, hypothetically speaking, without that presumption what degree of offense are we otherwise talking about if the constituent elements of a specific burglary are not alleged?

I would re-indict. You have apparently alleged that it was a habitation, so why not eliminate the issue by alleging that the intent was to commit theft, or assault, or a felony? And if you have proof that "the defendant cut a hole in the window and stuck his hand through," why is it attempted? The defendant entered the habitation.

Fortunately my defendant is double enhanced, so this should all be a purely academic discussion -- this time. The allegation of actual entry into the home was an oversight and, because of the enhancments, will be deleted as surplusage. There are some potential conflicts in witness testimony regarding that issue.

But the basic question remains. Absent specific evidence, how do you determine what kind of burglary was attempted? So the criminal was smashing a window. Does that mean he was going to sexually assault someone inside, or just steal the TV? My gut tells me to just give the benefit of the doubt to the Defendant and go with a 3rd degree.

Your dilemma about the punishment range is exactly why you need to re-indict. Prior to a 1993 amendment burglary was a 2nd degree if the intent was to commit theft or a felony. The two cases you cite involved burglaries prior to that amendment, so the object of the burglary was immaterial to the punishment range. With the current statute, if you fail to plead the object of the burglary (theft or other felony), you fail to give notice of the penalty range to the defendant and they have grounds to quash.

Do you have authority for that position? I have found none.

Wilson v. State 520 SW2d 377 reversing a delivery of marihuana conviction for "the failure of the indictment in the instant case to allege the amount of marihuana delivered or other allegations of remuneration so as to reflect what punishment was involved, whether the offense is a misdemeanor or felony, or whether the District Court had jurisdiction, renders the indictment fundamentally defective." And as cited in the opinion “An indictment or information should allege every fact which may affect the degree or kind of punishment. A prior conviction must be alleged where a higher penalty is sought by reason of such conviction; The value of property must be stated where it is made the basis of punishment; and the injury done to the owner of property must be averred where the amount of injury is an essential element in the punishment."
30 Tex.Jur.2d, Indictment and Information, Sec. 38, p. 604.