Jackson or Marrs v. State

In Jackson or Marrs v. State, 647 S.W.2d 286 (Tex. Crim. App. 1983), the State alleged in a burglary-of-a-habitation indictment that the habitation was "not then open to the public. " 633 S.W.2d at 898-99. This language appears in the portion of the statute criminalizing burglary of a building, not a habitation. TEX. PENAL CODE 30.02(a)(1). The Court held the State did not need to make the allegation and it was surplusage. 633 S.W.2d at 899. This case is distinguishable because the statutory language at issue was not even an element of the offense which the State was seeking to prove.