02/20/1985 App for WOE / Disposed WOJ W/MO OPINION
This is an appeal from an order of the juvenile court of Jim Wells County, Texas, finding that appellant engaged in delinquent conduct and placing him on probation.
The petition for adjudication of delinquent conduct on the part of appellant alleged a violation of TEX.PENAL CODE ANN. art. 30.02 (Vernon 1974), to wit, without consent of the owner A.N. entered a habitation with intent to commit theft. The court found the State had failed to prove all of the elements necessary to establish burglary of a habitation, but did find that the appellant committed a criminal trespass of a habitation.1 Appellant was placed on probation.
Appellant raises four points of error. The first point of error complains of the finding of the court that appellant engaged in delinquent conduct by commission of a lesser included offense when that allegation was not set forth in the petition for adjudication. Appellant's second point of error contends that the petition for adjudication of delinquent conduct does not state with particularity the location of the habitation the appellant was accused of entering and the third and fourth points of error challenge the legal and factual sufficiency of the evidence.
The Texas Family Code requires that at the inception of the hearing the judge explain to the child the allegations made against him and the nature and possible consequences of the proceedings. TEX.FAM. CODE ANN. § 54.03(b)(1), (2) (Vernon 1975). We are unable to find in the record any explanation by the judge or anyone else, at the commencement of the proceeding or at any time during the proceeding, *Page 120 an explanation that appellant might be found to have engaged in delinquent conduct by committing a criminal trespass. We cannot attribute to this youth a knowledge of the criminal law that a criminal trespass is a lesser included offense of burglary of a habitation. A.E.M. v. State, 552 S.W.2d 952 (Tex.Civ.App. — San Antonio 1977, no writ).Also see W.J.M.A. v. State, 602 S.W.2d 397 (Tex.Civ.App. — Beaumont 1980, no writ). Appellant's point of error number one is affirmed.
Appellant challenges the legal and factual sufficiency of the evidence that appellant engaged in delinquent conduct in that there was no evidence or insufficient evidence that the entry into the house was forbidden or that it was established that the house entered was a place of habitation. We find no merit in these contentions. See Hargett v. State, 534 S.W.2d 909 (Tex.Crim.App. 1976) and Day v. State, 532 S.W.2d 302 (Tex.Crim.App. 1975).
Lastly, appellant complains of deficiency in the original petition for adjudication of delinquent conduct in that the address of the habitation was not specifically set out in the pleading. Proceedings under Title 3 of the Texas Family Code are civil in nature to which the Texas Rules of Civil Procedure have application. TEX.FAM. CODE ANN. § 51.17 (Vernon 1975). If, on retrial of this cause, appellant specially excepts to the petition, the State should be required to allege in more particularity the location of the habitation.
This cause is reversed and remanded for trial pursuant to the instructions of this court.