The trial court found defendant’s prior burglary conviction (alleged as a “strike”) in Texas not true because it believed there were differences in the Texas and California statutory requirements of intent. A month later, the California Supreme Court indicated otherwise in People v. Avery (2001) 27 Cal.4th 49. Defendant was granted probation. Nevertheless, the People could not appeal the “unlawful order” determining the Texas conviction was not a strike because such an appeal was affirmatively barred by Penal Code section 1238.