concurring.
The evidence presented to the jury in this cause showed that with intent to commit *17theft appellant did break, did break into and did enter a motor vehicle without the effective consent of the owner.1 Yet, as in Martinez v. State, 641 S.W.2d 526 (Tex.Cr.App.1982) the Court is divided by “semantical theorizations” advanced by one Brother or another, and like my attitude in Martinez I am not persuaded by either.2
In the instant case the indictment alleged that appellant did “enter,” which means he intruded any part of his body or any physical object connected with his body. V.T. C.A. Penal Code, § 30.04(b). In its charge — no doubt because raised by evidence — the trial court defined “break” to include several means of force “for the purpose of making entry into a vehicle.”3 Similarly the court authorized the jury to convict appellant if it found that he did “break into” or “entered” the vehicle. Inclusion of “break into” is what the court of appeals and now some Judges of this Court say rendered the charge fatally defective.
Given the circumstances in this cause it seems to me that woodenly applying the doctrine of fundamental error in this cause is a mistake. While it is true that the trial court authorized the jury to convict on a theory which, strictly speaking, had not been stated in haec verba in the indictment, that does not necessarily mean that “the ‘legislative mandate’ of Art. 36.14 [V.A.C. C.P.] has been violated,” Hill v. State, 640 S.W.2d 879, 883 (Tex.Cr.App.1982).
“[T]he principle that a charge authorizing a jury to convict on a set of circumstances must conform to allegations in the indictment flows from constitutional due process demands that an accused be given notice of that which he is called on to defend. Sattiewhite v. State, 600 S.W.2d 277, 284-285 (Tex.Cr.App.1980); Robinson v. State, 596 S.W.2d 130, 132-133 (Tex.Cr.App.1980).”
Martinez v. State, supra, at 528 (Clinton, J., dissenting).
Alleging that he did enter a vehicle the indictment in this cause put appellant on notice that the State intended to prove he intruded into the vehicle a part of his body or any physical object connected with his body. One way to intrude is by force. Webster’s New Collegiate Dictionary. Once the State proved that entry into the Dodge Winnebago was gained by first prying and breaking the glass part of a window vent — intrusion by force — a “breaking into” was shown to be part and parcel of appellant’s entering the Winnebago. The due process requirement of adequate notice to appellant was not abridged.
Moreover, though the charge authorized the jury to convict if it found appellant either “broke into” or “entered’-’ the Winnebago, where the theory of the burglary alleged and presented by the State is that appellant intruded some physical object connected with his hand(s) forceably to pry and break out glass in a window vent and then further intruded his hand through the opening thus made, unlatched a door and entered the vehicle, the “evil of the charge that enlarges on the indictment” is practically nil. Cumbie v. State, 578 S.W.2d 732, 735 (Tex.Cr.App.1979).
In my view fundamental error was not committed here. Accordingly, I concur in the judgment of the Court.
ONION, P.J., and MILLER, J., join.. The owner testified that the glass part of a window vent had been plied and broken out, and someone reached inside, opened the door and then entered his Dodge Winnebago.
. As abstract propositions it seems to me that “breaks into” and “enters” are not always distinct acts as the dissent would have it, nor that “the term ‘break into’ necessarily includes the term ‘enter,’ ” as the plurality opinion finds. The Legislature obviously continued to believe there are some instances where one just “breaks into” a vehicle with intent to commit a felony or theft, but for some reason he does not then intrude any part of his body or any physical object connected with his body. See former Article 1404b, P.C. 1925 and Chavez v. State, 479 S.W.2d 687 (Tex.Cr.App.1972): “[T]he offense proscribed by Article 1404b, Vernon’s Ann. P.C. is complete when the ‘vehicle’ is broken into ‘with the intent of committing a felony or the crime of theft,’ ” id., at 688.
.In framing its definition the trial court apparently consulted former Article 1404b, P.C. 1925, as amended: “The breaking of any glass vent, glass window or windshield, or any other part of a vehicle, or the breaking or opening of any latch or locking device..