dissenting.
The majority grants relief on the ground that the trial court’s instruction to the jury did not apply the law to the facts. This is *762apparently the first time that the Court has so held.
This is not an appeal but a habeas corpus proceeding. Clark was convicted in 1976 for burglary of a motor vehicle. Two prior convictions were alleged for enhancement.
The evidence in the case at the guilt stage of the trial was given by two witnesses. Jack Martindale testified that he was a police officer for the City of Dallas. He was driving his marked squad car on the date alleged in the indictment when he saw a man frantically waving his hands. After talking with the man, he went to a car in the parking lot next to the Drury Building. He drove directly behind the car. He saw someone in the front seat of the car “peering over the top of the seat” through the rear window. After parking the squad car, Martindale walked to the driver’s side of the other car and saw Clark lying in the front seat. He arrested Clark and saw that he had been lying on a citizens band radio and an FM converter. The wires on these instruments had been pulled from the car and were wrapped around the radio and converter. He placed handcuffs on Clark and placed him in the squad car.
Earl Westmoreland, the owner of the car, arrived and Martindale released the radio and converter to him and then took Clark to jail.
Westmoreland testified that he parked and locked his car in a lot next to the Drury Building and was gone about thirty minutes. When he returned he saw a police car parked near his car. He saw the officer examining a citizens band radio and an FM converter that had been taken from West-moreland’s car. He gave no one permission to enter his car. He did not look at the person who was in the squad car nearby.
The punishment was assessed at life. On November 23,1977, this Court affirmed the conviction in a per curiam opinion. In that appeal Clark did not complain of the court’s charge. There was no objection to the charge during the trial. There was a request for a charge on circumstantial evidence.
The charge of the trial court, omitting some formal parts, definitions and admonitory instructions, is as follows:
“MEMBERS OF THE JURY:
“The defendant, Isom Clark, Jr., stands charged by indictment with the offense of burglary, alleged to have been committed in the County of Dallas and State of Texas on or about the 31st day of March, 1976.
“To this charge the defendant has entered a plea of not guilty.
“Our law provides that a person commits the offense of burglary of a vehicle if, without the effective consent of the owner he breaks into or enters a vehicle or any part of a vehicle with intent to commit theft.
“By the term ‘enter’ as used herein is meant to intrude any part of the body or any physical object connected with the body.
“ ‘Consent’ means assent in fact, whether express or apparent and includes consent by a person legally authorized to act for the owner.
“ ‘Vehicle’ includes any device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation.
“ ‘Theft’ is the unlawful appropriation of property without the owner’s effective consent and with the intent to deprive the owner of the property. ‘Appropriate’ means to acquire or otherwise exercise control over property other than real property.
“The indictment in this case having charged that the entry, if any, was made with intent to commit the crime of theft, before you would be warranted in finding the defendant guilty, you must be satisfied from the evidence beyond a reasonable doubt that the entry, if any, was so made with the intent to commit the crime of theft.
“The indictment in this case having alleged that the offense, if any, was committed intentionally and knowingly, you are instructed that our law defines ‘intentionally’ and ‘knowingly’ as follows:
*763
“You will make no finding in your verdict except to show whether the defendant is guilty, beyond a reasonable doubt, or not guilty, as you may find and determine from the law and evidence in this case.”
The verdict of the jury is as follows:
“We, the jury, find the defendant, Isom Clark, Jr., guilty of burglary of a vehicle, as charged in the indictment.
/s/ James P. Hanus
FOREMAN”
The indictment, omitting the formal parts, alleges:
“. . . ISOM CLARK, JR., hereinafter styled Defendant, on or about the 31st day of March in the year of our Lord One Thousand Nine Hundred and 76 in the County and State aforesaid, did unlawfully, knowingly and intentionally break into and enter a vehicle, without the effective consent of Earl E. West-moreland, the owner thereof, with intent to commit theft.”
Reading the verdict and the charge together, there can be no doubt that the jury was not misled and that Clark was not harmed.
The first paragraph of the court’s charge informs the jury that Clark stood charged by indictment with the offense of burglary of a vehicle in Dallas County on or about March 31, 1976.
After the definitions, the charge instructed the jury that it had to “be satisfied from the evidence beyond a reasonable doubt that the entry if any was so made with intent to commit the crime of theft.”
We should hold that under the facts proved in this case the charge given by the court was sufficient to inform the jury of the facts necessary to convict Clark for the burglary of the car belonging to Westmore-land. No deprivation of any constitutional right has been shown. This matter should not be reached by way of habeas corpus. The question of the sufficiency of the charge if a proper objection had been made at the trial and raised on appeal would present a different question, but it is not necessary to pass upon it in this case. The relief should be denied.
TOM G. DAVIS, DALLY and W. C. DAVIS, JJ., join in this dissent.