Moreno v. State

¶1OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

¶2Appellant was indicted for burglary of a habitation. After the jury’s verdict of guilty, the court assessed punishment at ten (10) years’ imprisonment.

¶3On appeal the appellant complained in his fourth ground of error the trial court had erred in refusing to charge on the lesser included offense of criminal trespass despite his timely requested charge.

¶4The Eastland Court of Appeals, based on the fourth ground of error, reversed the judgment and remanded the cause in an unpublished opinion. Moreno v. State (No. 11_84-066-CR-Oct. 11, 1984).

¶5We granted the State’s petition for discretionary review to determine the correctness of the holding of the Court of Appeals.

¶6The State’s evidence reflects that near midnight on June 6, 1982, Luis Escobedo and his girlfriend arrived at their trailer house in Escobedo’s truck. Escobedo then allowed his brother to take and use his truck which was normally parked at night at the trailer house. Before retiring, Esco-bedo determined the door ..and windows were locked and secured. In the early morning hours of June 7, 1982, about 1:15 a.m. or so, Escobedo awoke to see appellant standing in the doorway of his bedroom, clutching a blanket under his arm. Escobedo asked appellant what he was doing there. Appellant replied, “Everything’s cool. I’m leaving,” and retreated down the hall. Escobedo followed, and when they reached the living room, Escobe-do observed a light flashing through the spare bedroom of the trailer house “like a type of flashlight,” apparently shining through the window. Upon entering the living room, appellant stated, “Do you want me to kill you”? and reached behind his back. Escobedo, frightened, backed away. At this point Escobedo saw the blanket that had been hanging on the living room wall was missing, and realized that appellant had taken his blanket. Escobedo also observed his television set and stereo were missing.

¶7Appellant then went to the front door of the trailer house and began struggling to unlock the door. At this point Escobedo “jumped him” and the struggle continued outside the trailer house.

¶8Maria Miranda, Escobedo’s girlfriend, came out of the trailer house to see what was happening. Escobedo told her to go to a neighbor’s house to call the police — “the sheriffs.” Escobedo and Miranda heard appellant say he had a gun and Escobedo began hitting the appellant with a piece of firewood. When Miranda returned from the neighbor’s house she obtained an axe from the trailer house. As Escobedo and appellant continued to struggle Miranda hit appellant in the head with the blunt end of the axe two or three times. Escobedo and Miranda heard appellant say he knew where Escobedo’s missing property was and he would take them to retrieve the property if Escobedo would let him go.

¶9When the deputy sheriffs arrived, they saw Escobedo on top of appellant on the ground with appellant still struggling. Appellant was clad only in a pair of blue jeans. He had no shirt or shoes. Officers took appellant to a hospital to be treated for injuries and he remained there three or four days.

¶10It was shown that the screen had been taken off the window to the spare bedroom of Escobedo’s trailer house, and both the window and screen had “jimmy” marks on them. There was evidence that the window was large enough for a person to crawl through and through which the television *638set and stereo could have been passed or carried. The officers searched the nearby area but did not find the missing property. Appellant’s camper truck was parked at Albert Perez’s house. Perez, a neighbor, consented to having his house searched, but no contraband was found. Perez was the neighbor who had called the sheriff’s office at Miranda’s request. The missing property was never recovered.

¶11Appellant testified he had been looking for a job, that his friend, Perez, had permitted him to park his truck on his property where he slept in the camper attached to the pickup truck, because there was not enough room in Perez’s house. Perez lived across the street from Escobedo. On June 6, 1982, appellant, Perez, his brother and another were at Perez’s house. Perez was helping his brother work on a truck, and the others were playing dice. They were all drinking beer. Appellant testified he began drinking about 8:30 a.m. and continued until midnight when the last of the two bars visited closed, and that he was drunk when he went to bed in his truck.1

¶12The record reflects the further testimony from appellant:

“Q. What happened about midnight?

“A. Well, we came back and they dropped me off, so I got in my truck, took my shoes off, my shirt. I laid down and went to sleep for awhile. There was a lot of mosquitoes, dogs were barking, so I got up, heard some noise, and I saw across the street the trailer was open, the door was open. So when I got up, I just glanced down there and I figured what was going on, so I just walked over there with a flashlight to see what was going on, and as I was approaching the door, there was this dog, but he didn’t bark at me, he just looked at me. And I picked up this blanket that was by the steps, so I walked in the trailer, flashing the light. And as I was in the trailer — I wasn’t all the way in the trailer, I was a couple of steps in the living room, when this man came out and said what was I doing in the trailer. So I told him I wasn’t doing nothing. So he started swinging and we walked outside. That’s when ' they started beating on me.”

¶13Appellant also testified that after he awakened he noticed that the truck that was usually parked at the trailer house at night was not there. He did not know the name of the man, but knew someone lived at the trailer house. On cross-examination, he was asked:

“Q ... Why did you go over there?

“A Just to see what was going on.”

¶14The trial court, inter alia, instructed the jurors that if they did not believe appellant committed the alleged burglary, or if they had a reasonable doubt thereof they were to find the appellant not guilty. Further, the court instructed the jury at appellant’s request:

“You are instructed that it is a defense to prosecution that a person through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense. So, if you find from the evidence in this case that at the time defendant entered the habitation he acted under a mistaken belief that he was acting to assist the property owner or occupant, or if you have a reasonable doubt thereof, you will acquit the defendant.”

¶15The appellant filed his special requested charge that the jury be instructed on the lesser included offense which the trial court refused.2 See Article 36.15, V.A.C. C.P.

¶16On appeal the Court of appeals found that appellant’s testimony raised the issue of criminal trespass as defined in V.T.C.A., *639Penal Code, § 30.05, and reversed the conviction.

Article 37.09, V.A.C.C.P., provides:

“An offense is a lesser included offense if:

“(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

“(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

“(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

“(4) it consists of an attempt to commit the offense charged or an otherwise included offense.”3 (Emphasis supplied.)

¶17The elements of burglary of a habitation as charged in the instant indictment are:

(1) a person

(2) without effective consent

(3) enters a habitation

(4) with the intent to commit theft.4

¶18The elements of criminal trespass of property are:

(1) a person

(2) without effective consent

(3) enters or remains on the property or in a building of another

(4) knowingly or intentionally or recklessly 5

(5) when he had notice that entry was forbidden or received notice to depart but failed to do so.6

¶19*640. As can be seen, the offenses of burglary of a habitation and criminal trespass have the same elements except that the offense of burglary has the element of intent to commit a felony or theft, whereas the offense of criminal trespass has no such element, but has in place of such element a “notice” element. See discussion in Day v. State, 532 S.W.2d 302, 306 (Tex.Cr.App.1976).

¶20It has been held that criminal trespass may be a lesser included offense of all three types of burglary. Day v. State, supra;Daniels v. State, 633 S.W.2d 899, 900 (Tex.Cr.App.1982); Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Cr.App.1985). See also Johnson v. State, 665 S.W.2d 554, 556 (Tex.App.-Houston [1st] 1984).

¶21Aguilar v. State, supra, reiterated the two-prong test set forth in Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981) (opinion on rehearing), for determining whether a jury must be charged On a lesser-included offense. First, the lesser included offense must be included within the proof necessary to establish the offense charged. Second, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Cordova v. State, 698 S.W.2d 107 (Tex.Cr.App.1985); Bell v. State, 693 S.W.2d 434, 439 (Tex.Cr.App.1985), and cases there cited; Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984); Thomas v. State, 699 S.W.2d 845 (Tex.Cr.App.1985); Thomas v. State, 701 S.W.2d 653 (Tex.Cr.App.1985).

¶22The necessity of a charge on a lesser included offense must, of course, be determined on a case by case basis. Eldred v. State, 578 S.W.2d 721 (Tex.Cr.App.1979); Day v. State, supra, at 315, 316 (opinion on State’s motion for rehearing).

¶23In determining this question all of the evidence at the trial, whether produced by the State or the defendant, must be considered. If evidence from any source raises the issue and a jury charge on the issue is properly requested, the issue must be submitted to the jury. Lugo v. State, supra.

¶24In the instant case the State in proving the alleged offense of burglary of a habitation also proved the lesser included offense of criminal trespass. Thus the first prong of the Royster-Aguilar test is met. Merely because a lesser offense is included within the proof of a greater offense, however, does not always warrant a jury charge on the lesser offense. Aguilar v. State, supra, at p. 558.

¶25The remaining question is whether the second prong of the Royster-Aguilar test has been met. Is there some evidence in the record that if appellant is guilty, he is guilty of only the lesser included offense?

¶26Appellant testified he awoke, heard dogs barking, saw the truck missing, the trailer house door open, and went “over there” “just to see what was going on.” He admitted he entered the trailer and took two steps into the living room before being accosted. Appellant’s testimony together with all the circumstances presented at trial raises a disputed factual question as to a required element of burglary of a habitation — intent to commit a felony or theft. And this is the element that distinguishes burglary and criminal trespass. Thus we are constrained to conclude that there is “some” evidence that the appellant if guilty is guilty only of criminal trespass.7 The trial court erred in failing to charge on the lesser included offense of criminal trespass.8

¶27*641Must reversal follow the determination of this error in this charge? In Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984), this Court wrote:

“After researching Texas statutory and decisional law from 1857 forward, we have concluded that Article 36.19 actually separately contains the standards for both fundamental error and ordinary-reversible error. If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of defendant,’ which means no more than there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.

“On the other hand, if no proper objection was made at trial and the accused must claim that the error was fundamental, he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’

“In both situations the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.”

¶28Here the appellant timely objected and as well filed a special requested charge on criminal trespass, which means there was some harm from the error. It might well be argued that the jury charge as given amply protected appellant’s rights, but the issue of intent to commit a felony or theft was for the jury. In a burglary prosecution the specific intent to steal or commit theft may be inferred from the circumstances, Simmons v. State, 590 S.W.2d 137 (Tex.Cr.App.1979); Martin v. State, 186 S.W.2d 80 (Tex.Cr.App.1945), but the lack of intent may also be inferred from the circumstances. The jury is empowered to determine the issue of intent. See Joseph v. State, 679 S.W.2d 728 (Tex.App.-Houston [1st Dist.] 1984). The issue is not whether appellant’s is true or even believable. That issue is exclusively for the jury as the trier of the facts.

¶29We conclude that the error was harmful under the circumstances applying the test of Almanza. The judgment of the Court of Appeals is affirmed.