The dissenting position-though not its rationale1-has its appeal until one carefully examines the variety of burglary offenses structured by the Legislature in V.T.C.A. Penal Code, § 30.02. For present purposes we need only look at two pertinent parts of subsections, viz :
"(a) A person commits an offense if, without the effective consent of the owner, he:
(1) enters . . . a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft ; or
(2) * * *
(3) enters a building . . . and commits or attempts to commit a felony or theft."2
Distinguishing characteristics of the first and third modes of committing burglary are at once apparent. The vice seen by the Legislature in the formulations is not merely entry, although that is certainly an essential element. The evil sought to be condemned is concomitant conduct.3 Thus, though intruding any part of one's body or any physical object connected with it, id. Subsection (b), is conduct, for obvious reasons the Legislature did not denounce that initial conduct even when coupled with specific intent to commit a felony or theft unless that entry was made into a building "not then open to the public."
Viewed in this light, I am satisfied the element omitted in the instant indictment is, indeed, an essential element of the type of burglary offense proscribed by § 30.02(a)(1), which is what was sought to be alleged here. The indictment, then, fails to allege an offense prescribed by the Legislature and is, therefore, fatally defective. So, on this basis I concur in the judgment of the Court.