Day v. State , 532 S.W.2d 302 ( 1976 )

OPINION

ONION, Presiding Judge.

The appellant brings this appeal from a conviction for the offense of burglary with intent to commit theft. Following the return of the jury’s verdict of guilty, the court assessed punishment at seven (7) years’ confinement in the Texas Department of Corrections.

The appellant contends that the evidence at trial raised the issue of criminal trespass and argues that such offense is a lesser included offense of burglary. He therefore urges that the trial court committed reversible error in failing to submit to the jury one of his two requested instructions concerning the issue of criminal trespass.

The evidence at trial shows that at approximately 3 a. m. on the morning of March 13,1974, two Amarillo city policemen on routine patrol noticed that a front window of the Underwood’s Bar-B-Q located in Amarillo had been broken out. After additional police units arrived, two officers broke out the remaining glass of the broken window and entered the restaurant. They found a large rock located inside the restaurant near the broken window. A cigarette machine was overturned in the dining room, its glass front broken, and its “rods” and “bars” torn out. Numerous packs of cigarettes were scattered on the floor beside the cigarette machine. Several items, including an electric razor, an adding machine, an ashtray and four screwdrivers were located in a cardboard box in the dining room in the immediate vicinity of the cigarette machine. The door to the manager’s office was open and a metal vent on the door appeared to have been kicked in or pried loose. The police apprehended the appellant near a set of swinging doors between the dining room and kitchen, and recovered from him a letter opener found during a search of his person at the police station.

The restaurant manager, Mr. Collie, testified that he had care, custody, and control of the restaurant. He stated that he closed the restaurant to the public at approximately 9 p. m. on March 12, 1974, and had not given anyone permission to break the front window and enter the store. Mr. Collie testified that the letter opener found on the appellant’s person as well as the electric razor, adding machine, ashtray, and four screwdrivers found in the cardboard box in the dining room were all located in his office when he had left work on March 12.

The appellant, testifying in his own behalf, stated that at approximately 3 a. m. on the date in question he was proceeding past Underwood’s on the way home from a girlfriend’s house. He stated that he observed a man come out of the restaurant and then noticed that a window had been broken out. The appellant testified that he entered the restaurant through the broken window intending to telephone the police to report the broken window. He stated that the cigarette machine was already overturned and the cigarette packs already scattered on the floor at the time of his entry. The appellant testified that he stepped on the letter opener and then put it in his pocket as a “reflex action.” By his testimony, he was unable to find a light switch or telephone and was apprehended by the police approximately two minutes after entry.

The trial court instructed the jury on the law of burglary, but refused to submit either one of the appellant’s two requested instructions on the law of criminal trespass.

Our initial inquiry concerns whether criminal trespass is, as the appellant contends, a lesser included offense of burglary. Article 37.09, Vernon’s Ann.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.”

The offense of burglary, contained in Section 30.02, V.T.C.A., Penal Code, is as follows:

“(a) A person commits an offense if, without the effective consent of the owner, he:

“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony of theft; or

“(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or

“(3) enters a building or habitation and commits or attempts to commit a felony or theft.

“(b) For purposes of this section, ‘enter’ means to intrude:

“(1) any part of the body; or

“(2) any physical object connected with the body.

“(e) Except as provided in Subsection (d) of this section, an offense under this section is a felony of the second degree.

“(d) An offense under this section is a felony of the first degree if:

“(1) the premises are a habitation; or

“(2) any party to the offense is armed with explosives or a deadly weapon; or

“(3) any party to the offense injures or attempts to injure anyone in effecting entry or while in the building or in immediate flight from the building.”

From examination of the statute, it is obvious that burglary can be committed in either one of three distinct ways: (1) by entering a habitation or building not then open to the public without the effective consent of the owner with the intent to commit a felony or theft; or (2) by remaining concealed in a habitation or building without the effective consent of the owner with the intent to commit a felony or theft; or (3) by entering a habitation or building without the effective consent of the owner and committing or attempting to commit a felony or theft. The elements of the three types of burglary are set out following:

Burglary with intent to commit a felony or theft

(1) a person

(2) without the effective consent of the owner

(3) enters a habitation or building not then open to the public

(4) with the intent to commit a felony or theft.

Burglary by remaining concealed

(1) a person

(2) without the effective consent of the owner

(3) remains concealed in a habitation or building

(4) with the intent to commit a felony or theft.

Burglary by committing a felony or theft

(1) a person

(2) without the effective consent of the owner

(3) enters a habitation or building

(4) knowingly or intentionally,¹ and

(5) commits or attempts to commit a felony or theft.

The offense of criminal trespass, contained in Section 30.05, V.T.C.A., Penal Code, is as follows:

“(a) A person commits an offense if he enters or remains on property or in a building of another without effective consent and he:

“(1) had notice that the entry was forbidden; or

“(2) received notice to depart but failed to do so.

“(b) For purposes of this section:

“(1) ‘entry’ means the intrusion of the entire body; and

“(2) ‘notice’ means:

“(A) oral or written communication by the owner or someone with apparent authority to act for the owner;

“(B) fencing or other enclosure obviously designed to exclude intruders; or

“(C) signs posted to be reasonably likely to come to the attention of intruders.

“(c) An offense under this section is a Class C misdemeanor unless it is committed in a habitation, in which event it is a Class A misdemeanor.”

The offense of criminal trespass therefore consists of the following elements:

(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 ²

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

As can be seen, the first three elements of each of the three types of burglary and criminal trespass are virtually identical. The fourth main element of burglary, either the specific intent to commit or the actual commission or attempted commission of a felony or theft, depending on the type of burglary involved, is absent from the offense of criminal trespass.

The State argues that criminal trespass contains an additional element, “notice,” which is not contained in the offense of burglary and therefore the requirement of Article 37.09(1), Vernon’s Ann.C.C.P., would not be satisfied since the offense of criminal trespass would not be established by proof of the same or less than all of the facts required to prove burglary. It appears, however, that the State has failed to consider the obvious intent of the Legislature in including the “notice” requirement in the criminal trespass statute. It is apparent that the requirement of “notice” was intended to prevent an innocent trespass upon the “property” of another from incurring criminal liability. For example, where one innocently trespasses upon the unfenced and unposted land of another, no criminal offense would be committed. However, in a situation such as that presented in the present case where the proof shows that the accused entered a building not then open to the public, the “notice” requirement would be satisfied by proof of entry into the building since “notice” can be established by a “fencing or other enclosure obviously designed to exclude intruders.” See Section 30.05(b)(2)(B), V.T.C.A., Penal Code. Therefore, the elements of criminal trespass, including “notice,” could be established by proof of the same facts necessary to prove the offense of burglary. The proof of additional facts would not be necessary, and the requirement of Article 37.-09(1), Vernon’s Ann.C.C.P., would be satisfied.

Therefore, we hold that the offense of criminal trespass is a lesser included offense of all three types of burglary.

Our next inquiry concerns whether there was sufficient evidence at trial to have required the court to submit to the jury the issue of criminal trespass. It is well settled that if facts adduced at trial raise an issue and a charge on such issue is properly requested, then a charge on the issue must be given. See Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App.1975); Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975); Sargent v. State, 518 S.W.2d 807 (Tex.Cr.App.1975); Ray v. State, 515 S.W.2d 664 (Tex.Cr.App.1974); Carter v. State, 515 S.W.2d 668 (Tex.Cr.App.1974). It is further well settled that a defendant’s testimony alone is sufficient to raise an issue. Sargent v. State, supra; Ray v. State, supra; Carter v. State, supra.

In the present case, the testimony of the appellant that he entered the restaurant through a broken window in order to telephone the police raised some evidence of a lack of a specific intention on his part to commit a felony or theft. As discussed previously in this opinion, the fact that the appellant entered a building not then open to the public was sufficient to establish the “notice” requirement. The testimony of the restaurant manager during cross-examination furnished further proof of “notice” that entry into the restaurant was forbidden:

“Q. All right. Now, Mr. Collie, when the doors are locked at Underwood’s, there is no other way to get in, is there?

“A. Except break through a glass.

“Q. Except illegally, right?

“A. Right.

“Q. The doors are locked and all the windows are closed and there is no other way to get in there legally?

“A. No sir.

“Q. Would you call that an enclosure obviously designed to exclude intruders?

“A. Well, sir, that’s why I lock the doors. You mean to keep them out?

“Q. Obviously it should exclude intruders, correct?

“A. Yes sir.

“Q. People should know they are not supposed to get in there, is that true?

“A. Yes sir.

“Q. A reasonable man would be on notice that he’s not to enter that building when those doors are locked?

“A. That’s my judgment.”

Therefore, the facts in the evidence at trial were sufficient to raise the issue of criminal trespass, and the failure of the court to submit to the jury a requested charge on such constitutes reversible error.

The dissent relies heavily upon McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), an opinion authored for the court by this writer. In that prosecution for assault with intent to rape, the defendant complained on appeal of the trial court’s failure to charge on aggravated assault. First, the McBrayer opinion noted that the evidence did not raise the issue of aggravated assault, and citing 4 Branch’s Ann.P.C., Sec. 1889, p. 219, held that where the case is either assault with intent to rape or that the defendant is not guilty of any offense, it is not error to fail or refuse to charge on aggravated assault. Though not necessary to the disposition of the ground of error involved, the McBrayer opinion states:

“Still further, merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense. See Hale v. State, 164 Tex.Cr.R. 482, 300 S.W.2d 75 (1957); Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952).”

The dissent in the instant case seizes upon this paragraph, but completely misreads and misinterprets it. The dissent reads it as holding that it is not error to fail to charge on a lesser included offense unless the evidence shows that the only offense of which the accused could be guilty is the lesser included offense. This is not the law, should not be the law, and has never been the law. Surely it cannot be contended that if there is evidence raising the issue of a lesser included offense an accused would not be entitled to a charge on the same merely because there is also other evidence which supports proof of the greater offense charged or some other offense.

In Daywood, this court in 1952, speaking through Judge Morrison, wrote:

“. . .At this juncture, it will be noted that, merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser is not required unless there is testimony raising the issue that the appellant, if guilty at all, is guilty only of a lesser offense included in the greater offense charged”. (Emphasis supplied)

The Daywood opinion then observed that there was no evidence in the record to raise the issue of the lesser included offense of aggravated assault. In cases which have cited Daywood regarding this proposition of law, it appears from an examination of the opinions that in each case there was no evidence raising the issue of a lesser included offense. See Hale v. State, 164 Tex.Cr. 482, 300 S.W.2d 75 (Tex.Cr.App.1957); Bush v. State, 358 S.W.2d 384 (Tex.Cr.App.1962); Lewis v. State, 479 S.W.2d 74, 75 (Tex.Cr.App.1972); McBrayer v. State, supra.

It is clear then that the dissent cites McBrayer for the wrong proposition and goes further and infers that if the proof reflects some offense other than charged in the indictment, then no jury instruction on the lesser included offense of the offense charged needs to be given regardless of the evidence raising the same. This is strange logic indeed.

The judgment is reversed and the cause is remanded.

2 . Other than the “notice” requirement, there appears to be no culpable mental state required by the language of Section 30.05, V.T.C.A., Penal Code. Since its language does not plainly dispense with the requirement of proof of a mental element, subsections (b) and (c) of Section 6.02, supra, clearly require proof of either intent, knowledge, or recklessness.