Natasha Marie Heller v. State ( 2011 )

NO. 07-09-00390-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 16, 2011
NATASHA MARIE HELLER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT AT LAW NO. 2 OF RANDALL COUNTY;
NO. 2009-5244-2; HONORABLE RONALD WALKER JR., JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION
Appellant Natasha Marie Heller was charged by information with misdemeanor
criminal trespass.1 At trial, over appellant’s objection, the trial court instructed the jury it
could find her guilty of a lesser-included offense of attempted criminal trespass. The
jury found her guilty of the lesser offense, and imposed a fine of $500 as punishment.
We will overrule her appellate issue, and affirm the judgment.
1
See Tex. Penal Code Ann. § 30.05 (West 2011).
Background
The information alleged appellant entered a habitation. Evidence showed that
appellant knocked on the door of the home of the complainant, seeking to discuss child
support payments he owed her. When the door was not answered, appellant raised a
window of the home and extended her arm and head through the window into the
home’s interior. The complainant’s wife saw appellant and called police. The
complainant and his wife denied appellant had consent to enter their home.
After presentation of the State’s case, appellant moved for an instructed verdict
on the charge of criminal trespass, arguing the State had not proved notice or a
completed trespass. The trial court denied the instructed verdict and, over appellant’s
objection, included in the charge an instruction on the lesser-included offense of
attempted criminal trespass. As noted, the jury convicted appellant of the lesser
offense.
Analysis
Appellant’s sole issue on appeal is a contention the trial court erred by including
the lesser-included offense of attempted criminal trespass in the jury charge.
Under the two-pronged test applied to determine whether an offense is a lesser-
included offense, the first prong examines whether the lesser offense is included within
the proof necessary to establish the offense charged. Rousseau v. State, 855 S.W.2d
666, 672-73 (Tex.Crim.App. 1993); Royster v. State, 622 S.W.2d 442, 446
(Tex.Crim.App. 1981). Application of the first prong of the test involves a question of
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law. Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007). The second prong of
the test considers whether there is evidence to permit the jury rationally to find that the
defendant, if guilty, is guilty only of the lesser offense. Rousseau, 855 S.W.2d at 673.
Appellant’s contention deals only with the first prong of the test.
By statute, an offense is a lesser-included offense if it consists of an attempt to
commit the offense charged. Tex. Code Crim. Proc. Ann. art. 37.09(4) (West 2010).
Penal Code Section 15.01 defines criminal attempt. It provides, in part, “A person
commits an offense if, with specific intent to commit an offense, he does an act
amounting to more than mere preparation that tends but fails to effect the commission
of the offense intended.” Tex. Penal Code Ann. § 15.01(a) (West 2011).
There are instances in which courts have found the inconsistency between the
“specific intent to commit an offense” requirement in the criminal attempt statute and the
elements of a particular attempted offense precluded its use as a lesser-included
offense under article 37.09(4). See Gonzales v. State, 532 S.W.2d 343, 345
(Tex.Crim.App. 1976) (instruction on “attempted involuntary manslaughter” properly
denied as lesser-included offense of attempted murder; involuntary manslaughter
negates specific intent to kill); Yandell v. State, 46 S.W.3d 357, 361 (Tex.App.--Austin
2001, pet. ref'd) (deadly conduct not lesser-included offense of manslaughter under art.
37.09(4); “it is impossible to specifically intend to recklessly kill another”). In its analysis
in one such situation, the court in Strong v. State, 87 S.W.3d 206 (Tex.App.--Dallas
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2002, pet. ref’d), pointed out that because the offense of driving while intoxicated has no
culpable mental state,2 the attempt statute cannot apply to DWI. Id. at 217.
Appellant’s argument in this appeal is founded on the same premise. She
contends Penal Code § 30.05, defining the offense of criminal trespass, contains no
required culpable mental state, so the attempt statute can have no application to
charges of violation of § 30.05. Accordingly, appellant argues, the court erred by
instructing the jury on attempted criminal trespass. The basic difficulty with appellant’s
argument is that its premise is faulty. As the State here argues, the Court of Criminal
Appeals rather clearly has held that Penal Code § 6.02 operates to require that the
conduct proscribed by § 30.05 be accompanied by an intentional, knowing or reckless
culpable mental state. Holloway v. State, 583 S.W.2d 376, 377 (Tex.Crim.App. 1979);
West v. State, 567 S.W.2d 515, 516 (Tex.Crim.App. 1978); accord De Vaughn v. State,
239 S.W.3d 351, 356 (Tex.App.--San Antonio 2007, no pet.); see Tex. Penal Code Ann.
§ 6.02(b), (c) (West 2011).
In support of her contention that criminal trespass requires no culpable mental
state, appellant cites Moses v. State, 814 S.W.2d 437, 442 (Tex.App.--Austin 1991, pet.
ref’d as untimely). For that proposition, Moses relies on Reed v. State, 762 S.W.2d 640,
646 (Tex.App.--Texarkana 1988, pet. ref’d). Both cases contain the statement that no
culpable mental state is required under § 30.05 “other than a volitional refusal to leave
when requested.” The State notes that we also have cited Reed for the same
proposition, on two occasions. See Dunn v. State, 979 S.W.2d 403, 408 (Tex.App.--
2
Tex. Penal Code Ann. § 49.11(a) (West 2011).
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Amarillo 1998, pet. ref’d); Brumley v. State, 804 S.W.2d 659 (Tex.App.--Amarillo 1991,
no pet.). The State urges that we disavow Dunn and Brumley because of their apparent
conflict with the Court of Criminal Appeals’ holdings regarding the operation of Penal
Code § 6.02, in Holloway, 583 S.W.2d at 377, and West, 567 S.W.2d at 516.
For our purpose today, we think it sufficient to note that the “volitional refusal to
leave” language from Reed, 762 S.W.2d at 646, arose from a prosecution under §
30.05(a)(2), in which it was alleged the trespasser “received notice to depart but failed
to do so.” Tex. Penal Code Ann. § 30.05(a)(2) (West 2011); Reed, 762 S.W.2d at 646.
The same was true of Dunn, Moses, and Brumley. See Dunn, 979 S.W.2d at 408;
Moses, 814 S.W.2d at 442; Brumley, 804 S.W.2d at 662. Our present case is one in
which appellant was prosecuted under § 30.05(a)(1), by which she “had notice that [her]
entry was forbidden.”3 The “volitional refusal to leave” language originating in Reed has
no application in a case under § 30.05(a)(1).
Citing Gonzales, 532 S.W.2d at 345, and other cases, the court in Strong made
the further statement that “[t]he attempt statute does not apply when the culpable
mental state for the offense attempted is less than knowing.” Strong, 87 S.W.3d at 217.
We need not consider the application of that statement to the case at bar, however,
because the information under which appellant was accused of criminal trespass
alleged that she entered the habitation “intentionally and knowingly.” No culpable
mental state less than knowing is involved here. See Hall, 225 S.W.3d at 535
3
See Salazar v. State, 284 S.W.3d 874, 880 (Tex.Crim.App. 2009) (habitation
inherently provides notice that entry is forbidden).
5
(elements and facts alleged in the charging instrument are used to find lesser-included
offenses).
Finally, we note that the offense of attempted criminal trespass as a lesser-
included offense has been recognized by Texas cases. See Jones v. State, 170
S.W.3d 772, 776 (Tex.App.--Waco 2005, pet. ref’d) (attempted criminal trespass can be
a lesser-included offense of attempted burglary); Johnson v. State, 773 S.W.2d 721,
725 (Tex.App.--Houston [1st Dist.] 1989, pet. ref’d) (indicating attempted criminal
trespass may be a lesser-included offense of burglary of a building).
For these reasons, we overrule appellant’s sole issue on appeal and affirm the
judgment of the trial court.
James T. Campbell
Justice
Publish.
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