dissenting.
The majority opinion has confused two distinct rules of pleading, and in doing so reaches the wrong conclusion in this case.
The rule upon which the majority relies is that an allegation of the location of the offense need only state the county if the offense may be committed anywhere in the county, the place where the offense is committed is not an element of the offense, and the trial court has county wide jurisdiction. Appellant, however, relies on Art. 21.09, V.A.C.C.P., which states the rules for alleging descriptions of property:
*615“If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice. If the property be real estate, its general locality in the county, and the name of the owner, occupant or claimant thereof, shall be a sufficient description of the same.”
The majority misses the point and avoids the issue by relying on a rule that is irrelevant to the issue raised. Location of the offense and description of the property are two distinct matters, that, in burglary, happen to coincide, since the real property that is the object of this property offense also happens to be the location of the offense. The fact that the rule for alleging the location of the offense has not been violated does not mean Art. 21.09 may be ignored.
Three of the cases cited by the majority are burglary prosecutions. In Marrs v. State, 647 S.W.2d 286, Art. 21.09 apparently was not relied on by the defendant because it is neither cited nor discussed in the opinion. Hodge v. State, 527 S.W.2d 289, cites Art. 21.09, which it quotes in a footnote. The discussion of the issue under consideration there, however, focuses upon the location of the offense rather than description of property. The distinction between these two issues seems not to have been noticed there, just as it is not noticed by the majority in this case. The issue before the Court today was not decided in Hodge. Denison v. State, 651 S.W.2d 754, merely relied on Hodge without elaboration, when it overruled a ground of error challenging the allegation of the location of the offense. In sum, none of the burglary cases cited by the majority discussed the rule that applies to this case, nor decided the issue raised here.
Lane v. State, 621 S.W.2d 172, which the majority purports to overrule “to the extent that it is inconsistent with this opinion,” is the only case cited by the majority that does discuss the issue that appellant has raised. The rule followed in Lane is not inconsistent with the rule relied on by the majority: they are simply two different rules that apply to two entirely different issues. The majority applies the wrong rule and thereby reaches the wrong conclusion. Lane should be followed.
CLINTON, TEAGUE and MILLER, JJ., join this dissent.