Situation: Defendant is charged by Indictment with Burglary of a Building. Defendant entered a storage unit without permission of the owner and stole a baby playpen valued at approximately $70.

I want to allow the Defendant to plea to the lesser included offense of Theft $50-$500.

Does anyone know of a reason this cannot happen? I can't find any cases on point. The Penal Code specifically lists commission of theft as an element of the offense of Burglary.

If this can be done, does anyone know how we should write the Judgment? The judgments we get from Texas Courts Online do not have a way for us to enter this arrangement other than to type it in the field where the offense is listed as "Burglary of Habitation reduced to Theft $50 or More but Less Than $500".

Any help would be appreciated!

Dan Hunt
Assistant District Attorney
Tyler County, Texas

I think it depends on if the stolen item was described in the indictment. There's an explanation in Alvarez v. State, No. 14-04-00866-CR, 2006 WL 220997 at *3 (Tex. App. -- Houston [14th Dist.] Jan. 31, 2006, pet. ref'd).

The language of the indictment is:

"intentionally or knowingly enter a building or portion of a building not then open to the public, without the effective consent of XXX, the owner thereof, and attempted to commit or committed theft of property, to with: baby playpen, owned by XXX,"

Since we specifically list 'theft' and 'baby playpen', I believe we are good to go on the lesser of Theft $50-$500.

Any comments will be appreciated!

I don't think you have any problem with this one.