I do not agree that the majority's reliance upon W.J.M.A.v. State, 602 S.W.2d 397 (Tex.Civ.App. — Beaumont 1980, no writ) and A.E.M. v. State, 552 S.W.2d 952 (Tex.Civ.App. — San Antonio 1977, no writ) justifies a reversal of the instant case upon a contention not raised on appeal.
Appellant's pertinent contention advances the argument, plain and simple, that the juvenile court was without authority to enter a finding that the child had engaged in delinquent conduct by proof that he had committed a lesser included offense of that charged in the petition absent an allegation that the lesser included offense was also committed.
The complaint before this Court is in, the appellant's own words, ". . . the trial court had no authority to enter a judgment that was not based upon the pleadings and the judgment entered by the trial court is therefore void." Appellant's brief p. 8. Nowhere is there complaint that the juvenile court failed to comply with the requirements of TEX.FAM. CODE ANN. § 54.03(b)(1), (2) (Vernon 1975). This is clearly so because the record affirmatively discloses just such compliance as is required. While it may be true that the juvenile court did not advise appellant that a possibility existed that he might be adjudicated a delinquent upon proof that he committed a lesser included offense of burglary of a habitation, still such is not the complaint before us. A.E.M. v. State, does not support the contention appellant brings to this court but is in fact contrary to it. It does support the majority's position insofar as the record in that case disclosed a total failure to comply with the requisites of TEX.FAM. CODE ANN. § 54.03(b). But the record in the instant case does not reflect total noncompliance.
Then Justice Cadena's elaboration of the trial court's failure to comply in A.E.M. v. State, supra, in my opinion, unnecessarily enlarged upon the duties devolving upon a juvenile court under Section 54.03(b) when he alluded to the court's failure to inform the juvenile of the possibility of an adjudication upon the showing of lesser offenses included within the charge. In my opinion that observation was unnecessary to the disposition and constitutes dictum.
Criminal trespass can be a lesser included offense of burglary of a habitation. Roberson v. State, 549 S.W.2d 749 (Tex.Crim.App. 1977) *Page 121 (overruled on other grounds, Cole v. State, 578 S.W.2d 127 [Tex.Crim.App. 1979]; Day v. State, 532 S.W.2d 302 (Tex.Crim.App. 1975).
Although a petition must set forth the ground relied upon by the State and the proof must conform to the allegation,Cantu v. State, 207 S.W.2d 901 (Tex.Civ.App. — San Antonio 1948, no writ) a petition setting forth allegations which contain the elements of the lesser offense as well as the elements of the greater offense charged necessarily will support an adjudication if the proof conforms to either the charged offense or to the elements constituting the lesser included offense. Cf. Day v. State, supra.
Appellant's sole authority is In Re A.F.D., 628 S.W.2d 87 (Tex.App. — Beaumont 1981, no writ) which he cites for the proposition that a judgment not based on the pleadings is void. Such is not the rule announced in that case. The correct rule is that a judgment not based on any pleadings is void. The instant judgment is supported by pleadings containing all the elements comprising the offense found to have been violated.
I dissent to the disposition made upon a contention not raised and being convinced that the contention actually raised is without merit would overrule the point of error. I concur otherwise in the majority's disposition of appellant's remaining points of error although I find it unnecessary to comment on the validity of appellant's claim of deficiency in the petition.1 In view of the discovery procedures available to a civil litigant I question the merit of such a claim of lack of notice, particularly when exceptions are lodged against the petition at the last minute.
I would affirm the judgment of the juvenile court.