concurring.
I respectfully concur in the result reached by the majority opinion.
The appellant was indicted for burglary of a habitation with the intent to commit theft. After the state presented its evidence, the defense sought an instructed verdict on the ground that there was no evidence that the structure involved in the offense was a “habitation” as defined in the Texas Penal Code.
The jury was charged with the offense of burglary of a habitation and the lesser included offense of burglary of a building. Appellant objected to the burglary of a habitation charge.
During jury deliberations the jury sent a note to the judge requesting a more specific definition of “habitation” and “building.” Before the jury received a response to their question, the jury found appellant guilty of the offense of burglary of a habitation. The judge sentenced the defendant to sixteen years of confinement.
Burglary of a habitation is a first degree felony with a punishment range of 5-99 years and a maximum $10,000.00 fine. Burglary of a building is a second degree felony with a range of 2-20 years and a maximum $10,000.00 fine. In this case, a prior felony was alleged for enhancement purposes which affected the punishment range as follows: If appellant was guilty of burglary of a habitation: 15-99 years or life; if appellant was guilty of burglary of a building: 5-99 years and a $10,000.00 fine.
The majority opinion holds that there was insufficient evidence for the jury to find that the structure involved in the alleged burglary was a “habitation.” There was evidence that the structure was un-leased and vacant at the time of the offense. On the other hand, the record shows that the apartment contained built-in appliances — a dishwasher, stove, disposal, lighting fixtures, hot water heater, and carpet. In addition, there was a refrigerator. The water and electricity were turned on and the air conditioning was hooked up. The apartment had been previously rented, but had been vacant prior to the offense for about 35 days. The occupancy rate of the apartment complex was approximately 65%.
A habitation in the Penal Code is defined as “a structure adapted for the overnight accommodation of persons” and includes: “(a) each separately secured or occupied portion of the structure.” The majority opinion states that the apartment, rather than being a habitation, was a “building.” A “building” is defined as “any enclosed structure intended for use ... as a habitation.” In light of the case law dealing with this issue, I must concur with the result of an acquittal of appellant, although a liberal interpretation of the legislative definition would make this “structure” a habitation.
In Jones v. State, 532 S.W.2d 596, 600 (Tex.Crim.App.1976), the court set forth a test, albeit an amorphous one, to apply in determining whether a structure is a habitation. The court held that the structure “must at the time of the alleged offense have been actually ‘adapted for the overnight accommodation of persons’ or at least at some prior time used for the overnight accommodation of persons and still ‘adapted for the overnight accommodations’ of persons.” The court rationalized this interpretation of the statute with two theories.
*743First, the court stated that the traditional purpose for holding that a burglar of a habitation should receive a higher penalty than a burglar of a building is to protect private homes;1 therefore, the term “adapted” should be construed in a manner consistent with this policy. The general use of the term “adapted” which was “capable of use” or “made suitable” was too broad. “Considering the background of the statute, we cannot conclude the legislature intended ... to make a ‘habitation’ out of every structure or vehicle that could be converted in the future into overnight accommodation of persons or was ‘capable of use as such.’ ” Jones, 532 S.W.2d at 600.
Second, the court was attempting to harmonize the definition of “habitation” with the definition of the term “building.” The court reasoned that since the definition of “building” was a structure intended for use as a “habitation,” then naturally “habitation” could not have the same meaning. Therefore a habitation had to be more than just a place capable of being used as an overnight accommodation or intended to be used as an overnight accommodation. The court’s approach for determining whether a structure is “adapted for the overnight accommodations of persons” is to look for indications of overnight occupancy: 1) the availability of utilities 2) furniture 3) household goods within the apartment, and 4) prior use.
In Jones, the court held that the vacant, newly built house was not a habitation within the meaning of the Penal Code. In Moss v. State, 574 S.W.2d 542 (Tex.Crim.App.1978), the court held that an unoccupied rent house which had electricity but no water connected and which had furniture stored in it (including a mattress and box springs) was not a habitation. On the other hand, in Hargett v. State, 534 S.W.2d 909 (Tex.Crim.App.1976), the court held that a rent house that was rented complete with furniture and where the tenant had begun to move in his personal belongings was a habitation.
Courts of Appeals decisions have tended to follow the same analysis and compared their fact situations with these cases to determine 'whether or not sufficient evidence existed for the structure to be a habitation, but not always with uniform results. For instance, in Trotter v. State, 623 S.W.2d 504 (Tex.App.—Fort Worth 1981, no pet.), a mobile home which had furniture and household items with utilities available, but where the sewage line was not connected, was held to be a habitation. No one lived in the mobile home at the time of the offense, but it had formerly been occupied. In contrast, in Myers v. State, 704 S.W.2d 446 (Tex.App.—Houston [14th Dist.] 1986, pet. ref’d.), with similar facts, its defendant was convicted of burglary of a building. On appeal he argued that the evidence was insufficient to show the structure was a building; rather the evidence showed it was a habitation. The structure was a trailer which had a refrigerator, built-in appliances, a bed, and household items. The trailer was occasionally used as a hunting camp. The court held that clearly the structure was a building. In addition, the court said that even if the evidence also proved burglary of a habitation it would not create a fatal variance. In Bazroux v. State, 634 S.W.2d 919 (Tex.App.—Houston [1st Dist.] 1982, no pet.), where a house had furniture, household items, electricity operating, and where the owner was out of the country, at least temporarily, the court found the structure to be a habitation. In Lewis v. State, 631 S.W.2d 813 (Tex.App.—Fort Worth 1982, no pet.) the court held a one bedroom apartment was a habitation. The only evidence the court mentioned regarding the interior of the structure was that it had a portable radio, T.Y. and microwave oven.
The Texarkana Court of Appeals has rejected the approach of looking at the contents of the structure. Blankenship v. State, 715 S.W.2d 132 (Tex.App.—Texarkana 1986, pet. granted). In Blankenship, the structure was a rent home which had previously been lived in, but which was unoccupied at the time of the offense. It *744was wired for electricity and had water connections. In Blankenship the court said, “[W]e do not feel that whether a structure is a habitation should depend on how much or what kind of furniture a building contains, or by whether the utilities are connected. A finished structure designed for, built as, and intended as a place for people to live is logically a habitation.” While this reasoning is logical, it refers to the common dictionary meaning of the term habitation and fails to deal with the statutory definition of habitation, and the complexities wrought by the statute and case law.
Using the traditional approach of comparing the facts to the cases decided by the Court of Criminal Appeals, it appears that the facts in this particular case are more similar to the Moss and Jones cases than to the Hargett case. Here the apartment was unrented, and the furnishings were the refrigerator and built-in appliances. There was no furniture, and there were no household items, although the electricity had been turned on, and the apartment was ready for occupancy.
The majority opinion states that the vacant apartment is not a habitation because “no reasonable person would find an unfurnished apartment fit for overnight accommodation.” But should this really be the test? Since the rationale for providing an increased penalty for burglary of a habitation is to protect private residences, the most effective approach would be to consider whether the structure is one that is normally expected to be a private residence.
There is a substantial need to reform this area of the law and for the legislature to clarify the meaning of the terms “building” and “habitation.” Since the legislature has created two separate offenses, the distinction between the two offenses should be clear and certain.
The Court of Criminal Appeals has said that it is not enough for the structure to be capable of use as an overnight accommodation. A certain combination of factors make the structure “adapted for overnight accommodations.” But the appellate courts, the trial courts, the grand juries, prosecutors and juries face a dilemma in determining what combination is the correct one.
The rationale for providing an increased penalty for burglary of a habitation is to safeguard one's home — to protect against intrusion into those places where the threat to people is most alarming. There is a special danger associated with an intruder in a home — the danger that the intruder will harm the occupants or that the occupants will react violently to the trespass into their personal haven. The increased penalty is to further the intent of society to ensure that burglars stay out of inhabited homes.
It is difficult to perceive how these goals can be attained with the current state of the law. How can the law deter a criminal from entering a private residence when the criminal will not know, until after he enters the structure, whether it is a habitation or a building? Does the criminal who enters an apartment for the purpose of burglarizing the place consider the place a habitation or a building just prior to the entry in making his decision to commit the crime? A subjective test which is hypertechnical like the one set forth by the Court of Criminal Appeals seems merely to muddle the issue.
Although no further prosecution of the appellant for burglary of a habitation shall be had, it should be noted that the appellant may be indicted and tried for the lesser included offense of burglary of a building. There is a line of cases which hold that if the courts have found the evidence insufficient on an alleged aggravating element, a trial on the lesser included offense is not precluded. See: Moss v. State, 574 S.W.2d 542 (Tex.Crim.App.1978); Granger v. State, 605 S.W.2d 602, 604 (Tex.Crim.App.1980); Ex Parte Harris, 600 S.W.2d 791, 792 (Tex.Crim.App.1980); Keith v. State, 692 S.W.2d 921 (Tex.App.—Houston [14th Dist.] 1985) pet. ref'd. 721 S.W.2d 294 (Tex.Crim.App.1986); Cruz v. State, 629 S.W.2d 852, 860 (Tex.App.—Corpus Christi 1982, pet. ref'd); Scott v. State, 712 S.W.2d 782, 783 (Tex.App.—Houston [1st Dist.] *7451986, affirmed 741 S.W.2d 435 (Tex.Crim.App.1987).
I concur with the result.
. Emphasis supplied throughout.