Elliott A. Rico v. the State of Texas ( 2024 )

Opinion issued April 16, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00239-CR
———————————
ELLIOT A. RICO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 19th District Court
McLennan County, Texas
Trial Court Case No. 2021-876-C1
MEMORANDUM OPINION
A jury convicted Elliot A. Rico of the offense of burglary of a habitation and

Per the Texas Supreme Court’s docket-equalization powers, this appeal was transferred
from the Tenth Court of Appeals to this court on April 4, 2023. See TEX. GOV’T CODE
§ 73.001; Order Regarding Transfer of Cases from Courts of Appeals, Misc. Docket
No. 23-9017 (Tex. Mar. 21, 2023). We are unaware of any conflict between its
precedent and ours. See TEX. R. APP. P. 41.3.
assessed his punishment at 20 years of confinement plus a $2,500 fine. Rico appeals.
We affirm.
BACKGROUND
A grand jury indicted Rico for burglary of a habitation, alleging that he
intentionally and knowingly entered another’s home without the effective consent
of the owner and committed or tried to commit theft of the owner’s clothing. As an
enhancement allegation, the indictment also alleged that Rico was a convicted felon,
having been convicted of possession of a controlled substance with intent to deliver.
Rico pleaded not guilty, and the parties then tried the case to a jury.
During its opening statement, the prosecution informed the jurors that they
would hear evidence that Rico had been harassing Lindsay Daugherty, the person
whose home he burglarized, before the burglary took place. As a result of the
harassment, the prosecution said, Daugherty was too scared to be home alone.
The defense objected on the grounds that the alleged harassment was
irrelevant to the charged offense and the prosecution’s reference to it was
inappropriate. In front of the jury, the prosecutor responded that this evidence “goes
to the family violence” existing in the relationship between Rico and Daugherty. The
prosecution’s explanation then provoked another objection from the defense, which
also asked that the jury be instructed to disregard and moved for a mistrial. The trial
2
court sustained the defense’s objection and instructed the jury to disregard the
comment about family violence. But the trial court denied the motion for mistrial.
Later during its opening statement, the prosecution twice referred to the
“messy relationship” between Rico and Daugherty. The defense did not object to
this characterization either time. Indeed, during its own opening statement, the
defense agreed that Rico and Daugherty had “a messy relationship toward the end.”
The first witness for the prosecution was R. Simons, who was a patrol officer
with the Waco Police Department at the time of the burglary but has since retired.
Simons was the first officer to respond to the dispatcher’s report of the burglary. He
responded to the scene—Daugherty’s home—around noon the day of the report. His
understanding was that Daugherty had not been at home the night of the burglary.
Simons testified that Daugherty told him Rico was the perpetrator. She told
Simons she thought the point of entry was the garage door, and Simons said that the
garage-door rollers at the bottom were missing when he examined the garage door.
Inside the garage, the door to the house had a window that had been broken
previously (before the date of the burglary), which Simons stated made it “easy to
put your hand through to unlock the door” to get inside the house from the garage.
Daugherty showed him a fire pit on the back patio. The pit contained some
remnants of burned clothes. The clothes had been inside the home. According to
Simons, Daugherty was upset because most of her work clothes were destroyed.
3
Simons testified that Daugherty said “she was fearful of Rico.” She also told
Simons she had photographs on her phone that Rico sent to her the night before that
showed “he had been inside the house, taking pictures of her clothes and such.”
The next witness was A. Richardson, a detective with the City of Bellmead.
At the time of the burglary, however, she was a crime scene technician in Waco. She
was the one who collected and processed the evidence relating to the burglary.
Simons was already present when Richardson arrived at the scene. Richardson
spoke with both Simons and Daugherty to ensure she understood the situation. Then
Richardson photographed the scene, including the garage. It was Richardson’s
understanding that the rollers to the garage door had been removed some time before
the date of the burglary, which made it possible to raise the door from the outside.
Like Simons, Richardson noted that the window of the door between the
garage and the home was broken, which made it possible for someone taller than
five foot to reach inside and unlock that door to gain entry to the home proper.
Richardson photographed the fire pit and surrounding area. There were
“pieces of clothing” and “rubbery material” that appeared to be a boot sole.
Daugherty told Richardson that boots that had been in the home were no longer there.
And Richardson stated that there was a belt buckle among the charred remains.
Daugherty then took the stand. She testified that she contacted the police
because when she returned home one day, she found her “clothes burned.” She said
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she arrived home sometime before noon that day. Without objection, Daugherty
testified that she “wasn’t staying the night there” because she “was afraid to be home
alone.” Instead, she spent nights at “different places,” including the homes of
relatives. But Daugherty clarified that she was referring to weekends on which the
father of her children had custody. She would not stay there alone overnight on those
weekends. When the children were with her, they all stayed overnight in the home.
Daugherty testified that Rico sent her text messages late the prior night, saying
that he was going to burn her clothes. Rico’s messages included a video of him
setting her clothes on fire. She said that Rico was mad because he could not get to
her and therefore destroyed her belongings instead. Daugherty knew the texts were
from Rico because he sent them via Facebook. Rico’s name and picture thus
accompanied the messages, and she recognized his voice in the video. She stayed
put that night, and she went home the next morning to see what Rico had done. When
she returned, she confirmed that he burned her clothes just as he said he would.
The prosecution showed Daugherty pictures from Rico’s Facebook profile,
and Daugherty confirmed the profile belonged to Rico. Daugherty noted that Rico’s
picture was on there and that his nickname—“Monster”—was associated with it. She
also testified that Rico was a tattoo artist, which was reflected in the profile too.
The prosecution then sought to introduce a series of abusive text messages
Daugherty received from Rico. In these messages, Rico referred to Daugherty as “a
5
hard headed bitch” and “never happy hoe.” Rico also accused her of being with other
men. At one point, Rico wrote that she was not “here” and he was “burning all [of
her] shit.” One message was a photo of some article of clothing or clothes being set
on fire. Daugherty said she knew these messages were from Rico because they came
from his Facebook profile and were written in the way that he spoke to her.
The defense objected to the admission of these text messages, stating that the
prosecution had not laid a proper foundation for their admissibility, the text
messages did not show when or on what date they had been sent or received, and the
messages consisted of hearsay. The trial court overruled these objections.
When the burglary occurred, Daugherty and Rico were no longer romantically
involved with one another. But previously they were in a “boyfriend–girlfriend”
relationship. Their relationship had lasted a little more than two years, ending toward
the end of 2019. Daugherty said Rico “was more violent around that time,” which
elicited an objection, request for an instruction to disregard, and request for a mistrial
from the defense. The trial court overruled the defense’s objection and requests.
Daugherty testified that she ended the relationship. She indicated that Rico
resided with her at some point during the relationship, but he was no longer doing
so when he burned her clothes. After their relationship ended, Daugherty did not
allow Rico to stay, and he was no longer allowed to enter her home without her
consent. Daugherty’s name was on the lease. Rico’s name was not on the lease.
6
Without objection, Daugherty testified that she felt she had to contact the
police because she “was getting scared at this point.” He “was taking things pretty
far.” Rico was “still entering the home,” and she “didn’t feel safe there anymore.”
On cross-examination, Daugherty acknowledged that she did not call the
police when she received Rico’s texts. She explained that she “wanted to be sure he
really did what he said he was doing” before she involved law enforcement.
R. Flores, an officer with the Waco Police Department, testified next. He
stated that he issued a criminal trespass warning to Rico regarding Daugherty’s home
before the events that led to this prosecution. He did so at Daugherty’s request.
Afterward, the State rested, and the defense called Lizbeth Robles. Robles
testified that Rico resided with her in Dallas when the burglary took place. During
her testimony, the defense introduced several photos Robles took of herself and
Rico. One of these photos was taken just before 9:00 p.m. the night of the burglary.
Robles testified that she took this photo in Lancaster, Texas, outside of Dallas.
According to Robles, Rico was with her during this entire period of time. But she
agreed she never told law enforcement this was the case after Rico was indicted.
The defense then rested, and the trial court and parties discussed the jury
charge. The trial court asked whether either side had objections to the court’s charge,
and both the prosecution and defense stated that they did not. The trial court then
observed: “So off the record, you had made a request that your client wanted a lesser
7
included of criminal trespass of a habitation. Under the law, it is not a lesser included
under the facts of this case.” There was no further discussion about the charge.
The jury found Rico guilty of the offense of burglary of a habitation, and it
then heard evidence relevant to punishment. Among other evidence, the jury was
presented with evidence that Rico had several prior convictions, including a 2008
conviction for driving while intoxicated, a 2009 conviction for possession of a
controlled substance with the intent to deliver, a 2009 conviction for evading arrest
or detention, a 2009 conviction for escape, a 2016 conviction for evading arrest or
detention with a prior conviction, a 2017 conviction for driving without a valid
license, a 2021 conviction for possession of a dangerous drug, and a 2021 conviction
for unlawfully carrying a weapon. Daugherty also testified that Rico was violent
during their relationship, testifying that he gave her “two or three black eyes.” The
prosecution introduced into evidence two photographs of one these black eyes. She
testified that she did not contact the police at the time because Rico was on parole.
When this happened, she loved him and did not want to get him into trouble.
Rico’s mother also testified during the punishment phase of trial. She
explained that Rico’s nickname—“Monster”—stemmed from when he was a baby
or child, as he would “get mad and he would do like the Incredible Hulk face.”
The jury assessed Rico’s punishment at 20 years in prison and a $2,500 fine.
Rico appeals.
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DISCUSSION
I. Legal Sufficiency
Rico contends the evidence is legally insufficient to prove that he in particular
entered Daugherty’s home because the evidence of entry solely consists of her
testimony that he did so, though she was not at home when the alleged burglary took
place, and inadmissible Facebook messages. In addition, even if the evidence is
legally sufficient to prove entry, Rico further contends that the evidence is legally
insufficient to prove that his entry was made without Daugherty’s effective consent.
Finally, Rico contends the evidence is legally insufficient to prove that he committed
the offense of theft. In particular, he disputes the intent element required for theft.
A. Standard of review
In reviewing a jury’s verdict for evidentiary sufficiency, we must uphold its
verdict if any rational trier of fact could have found all the essential elements of the
offense proven beyond a reasonable doubt. Edward v. State, 635 S.W.3d 649, 655
(Tex. Crim. App. 2021). The jury’s verdict is irrational under this standard only if it
is based on evidence that is not legally sufficient to support a conviction. Id. at 655–
56; see Cary v. State, 507 S.W.3d 761, 766 (Tex. Crim. App. 2016) (stating appellate
court’s role is not to act as thirteenth juror but rather is confined to ensuring jury’s
verdict is rational one that is based on more than mere modicum of evidence).
9
In a legal-sufficiency review, we consider all the evidence and view it in the
light most favorable to the verdict. Harrell v. State, 620 S.W.3d 910, 913–14 (Tex.
Crim. App. 2021); see also Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App.
2016) (noting that legal-sufficiency review encompasses properly and improperly
admitted evidence). This standard recognizes it is the jury’s prerogative to resolve
conflicts in the testimony, weigh the evidence, and draw reasonable inferences from
basic facts to ultimate facts. Harrell, 620 S.W.3d at 914. So, we must defer to the
jury’s evaluation of the credibility of the witnesses and the weight to be given to
various evidence. Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021).
An inference is a conclusion reached by considering other facts and deducing
a logical consequence from them. Anderson v. State, 416 S.W.3d 884, 888 (Tex.
Crim. App. 2013). The jury may draw inferences from the evidence so long as the
evidence supports each inference. Carter v. State, 620 S.W.3d 147, 150 (Tex. Crim.
App. 2021). When the evidence supports reasonable but conflicting inferences, we
presume the jury resolved the conflict in favor of its verdict, and we defer to the
jury’s resolution of the conflicting inferences. Dunham v. State, 666 S.W.3d 477,
482 (Tex. Crim. App. 2023). However, the jury’s verdict cannot rest on conjecture
or speculation, which are mere theorizing or guessing about the possible meaning of
the facts and evidence presented, as opposed to reasonable inferences that can be
drawn from the evidence admitted at trial. Anderson, 416 S.W.3d at 888.
10
Each fact need not point directly and independently to guilt, so long as the
cumulative force of all the incriminating circumstances suffices to support the jury’s
verdict. Walker v. State, 594 S.W.3d 330, 335 (Tex. Crim. App. 2020). Thus, in our
review, we must not use a divide-and-conquer strategy, evaluating individual bits of
evidence in isolation, because this approach does not consider the cumulative force
of the evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Nor
does the evidence need to negate every conceivable alternative to the defendant’s
guilt to be sufficient. David v. State, 663 S.W.3d 673, 678 (Tex. Crim. App. 2022).
The law does not require a particular type of evidence. Johnson v. State, 560
S.W.3d 224, 226 (Tex. Crim. App. 2018). Direct and circumstantial evidence are
equally probative. Id. Circumstantial evidence alone can be legally sufficient. Id. We
apply the same standard of review with respect to both direct and circumstantial
evidence. Hammack v. State, 622 S.W.3d 910, 915 (Tex. Crim. App. 2021).
B. Applicable law
As alleged in the indictment, a person commits the offense of burglary of a
habitation if he enters a habitation without the effective consent of the owner and
commits or attempts to commit theft. TEX. PENAL CODE § 30.02(a)(3). Theft, in turn,
consists of the unlawful appropriation of property with the intent to deprive the
owner of the property. Id. § 31.03(a). An appropriation of property, which includes
the acquisition of or exercise of control over property other than real property, is
11
unlawful if it is done without the owner’s effective consent. Id. §§ 31.01(4)(B),
31.03(b)(1). In this context, the term “deprive” includes disposing of the property in
a manner that makes its recovery by the owner unlikely. Id. § 31.01(2)(C).
C. Analysis
Daugherty testified that Rico did not have permission to be in her home, he
messaged her telling her that he was going to burn her clothes while she was away
from home overnight, her clothes were located inside her home, she discovered items
of her clothing were missing from the home when she returned the following day,
and she additionally found remnants of burned clothing in a fire pit outside of her
home. The prosecution introduced the threatening message and many others into
evidence, and Daugherty identified them on the stand. Simons, the responding
officer, and Richardson, the crime scene technician, both provided testimony that
corroborated Daugherty’s testimony about the burning of her clothes. Photographs
of the scene taken by Richardson, some of which show the remnants of burnt
clothing in and around the fire pit, were introduced into evidence as well. From this
evidence, a rational jury could reasonably find that Rico entered Daugherty’s
residence without her effective consent, unlawfully appropriated her clothing, and
did so with the intent to deprive her of the clothing by destroying it with fire. See
Franklin v. State, 606 S.W.2d 818, 821 (Tex. Crim. App. 1978) (holding jury could
reasonably conclude defendant had obtained victim’s property without her effective
12
consent and with intent to deprive her of property, even though evidence showed
defendant had discarded property in trash and partially burned it to destroy it).
Rico disputes the authenticity and admissibility of the messages. But we
consider all the evidence admitted at trial, whether or not it should have been
admitted, when evaluating its legal sufficiency. Balderas, 517 S.W.3d at 766.
Robles gave Rico an alibi for the night in question, which she supported with
photographs of her own. Faced with this evidentiary conflict, the jury had to weigh
the evidence and the credibility of the witnesses. The jury did so, and we cannot
invade the province of the jury by reweighing the evidence and credibility of the
witnesses on appeal. Martin, 635 S.W.3d at 679; Harrell, 620 S.W.3d at 914.
Finally, to the extent Rico disputes the evidence is sufficient to show he
intended to commit theft, intent generally is an issue for the jury to resolve based on
its assessment of the surrounding circumstances. Moreno v. State, 702 S.W.2d 636,
641 (Tex. Crim. App. 1986). The jury heard evidence that Rico removed clothes
from Daugherty’s home without her consent and destroyed at least some of them, so
that Daugherty could never recover these clothes as a practical matter. This evidence
suffices to show Rico intended to commit theft. Franklin, 606 S.W.2d at 821.
We overrule Rico’s first issue.
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II. Admissibility of Evidence
Rico contends the trial court erred in admitting into evidence the Facebook
messages he allegedly authored the night of the burglary due to lack of authentication
because the messages lack a date or time-stamp as to when they were sent.
A. Standard of review
We review a trial court’s evidentiary rulings, including rulings regarding
whether the proponent of evidence has supplied facts sufficient to support a
reasonable jury determination that the evidence is authentic, for an abuse of
discretion. Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015).
B. Applicable law
In general, the proponent of an item of evidence “must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.” TEX.
R. EVID. 901(a). Examples of evidence that satisfy this authentication requirement
include testimony “that an item is what it is claimed to be.” TEX. R. EVID. 901(b)(1).
This authentication requirement is not a demanding one. See Butler, 459
S.W.3d at 600 (describing rule as liberally providing for admissibility). Ultimately,
it is for the jury to decide whether an item of evidence is what its proponent claims.
Id. The trial court must merely ensure the proponent has supplied enough facts to
support a reasonable jury determination that the item of evidence is authentic. Id.14
C. Analysis
Daugherty testified that the messages originated from Rico’s Facebook
profile, and she supplied various details in support—including their use of Rico’s
name and his nickname, “Monster”; inclusion of a photograph of Rico; and reference
to tattooing, which is Rico’s profession. Daugherty also testified that the messages
were written in the way Rico typically speaks and writes and that she recognized his
voice in the video message he sent. Taken together, this testimony suffices to support
the trial court’s implicit finding that a jury could reasonably find the messages to be
authentic. TEX. R. EVID. 901(b)(1); see also TEX. R. EVID. 901(b)(4), (b)(5)
(providing that authentication may be shown by “appearance, contents, substance,
internal patterns, or other distinctive characteristics” as well as witness’s “opinion
identifying a person’s voice”); see, e.g., Butler, 459 S.W.3d at 603 (holding evidence
of authenticity sufficient because complainant, who had been in romantic
relationship with defendant, testified that text messages she received came from
number he had called her from in past, content of text messages convinced her that
he was sender, and he called her during exchange of text messages at issue).
Rico’s specific complaint on appeal concerns the date and time when he sent
these messages. That is, he appears to contend it is possible that he sent them on
some other occasion and that they therefore cannot support a finding that he entered
Daugherty’s home on the night in question and stole and burned her clothing. As
15
framed, this is not a complaint about the authenticity of the evidence so much as its
relevance—the propensity of the evidence to make his guilt more or less likely. See
TEX. R. EVID. 401 (providing evidence is relevant if it tends to make fact more or
less probable than it otherwise would be and fact is consequential in deciding case).
In any event, assuming that information concerning the date and time of a
Facebook message or similar electronic communication could bear on its
authenticity, Daugherty testified that she received the messages at issue during the
night before she returned to her home and found that her clothes were burned. Her
testimony, standing alone, is sufficient evidence of the date and time of receipt,
particularly given that there is no evidence suggesting a different date or time. See
TEX. R. EVID. 901(b)(1) (providing witness testimony can show authenticity).
We overrule Rico’s second issue.
III. Motions for Mistrial
Rico contends the trial court erred in denying his motions for mistrial, which
were premised on repeated references during the guilt–innocence phase of trial to
domestic violence against Daugherty committed by Rico. Rico maintains these
incurable references were so inflammatory that they deprived him of a fair trial.
A. Standard of review
We review a trial court’s denial of a motion for mistrial for an abuse of
discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Thus, we
16
must uphold the trial court’s ruling if it is within the zone of reasonable
disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).
B. Applicable law
A mistrial is required only under extreme circumstances, when the prejudice
is incurable. Id. An inquiry into incurability essentially resembles appellate review
for harm Id. at 700. But we look specifically to three factors: the severity of
misconduct, measures adopted to cure the misconduct, and the certainty of the
conviction in the absence of the misconduct. Id. Accordingly, whether there has been
misconduct at all is therefore a threshold issue in evaluating incurability. See id.C. Analysis
Rico essentially contends the prosecution’s references to and use of evidence
concerning domestic violence were improper because this subject matter is irrelevant
to the offense of burglary or because any probative value evidence of domestic
violence has is substantially outweighed by the danger of unfair prejudice.
We do not agree that the tumultuous nature of Rico’s and Daugherty’s
relationship, including any corresponding physical abuse, was irrelevant. This
burglary is atypical in that the apparent motive was not material gain. Instead, Rico’s
alleged motive—substantiated by evidence admitted during trial—was to inflict
harm on Daugherty or to punish her for seeing other men. Daugherty eventually
testified that Rico was mad because he could not get to her personally and he
17
therefore destroyed her belongings instead. Evidence of his propensity to inflict
harm on her or to punish her for purported misdeeds therefore tends to explain his
motive for entering her home and taking her clothes without her effective consent
only to burn the clothes afterward, and evidence of an extraneous offense that sheds
light on a defendant’s motive to commit the charged offense is generally admissible.
See Bush v. State, 628 S.W.2d 441, 444 (Tex. Crim. App. 1982) (observing that
evidence of other crimes is admissible to show motive to commit charged offense).
Nor do we agree that the probative value of any reference to physical abuse
whatsoever was substantially outweighed by the danger of unfair prejudice.
Evidence of motive is highly relevant, so much so that the prosecution may virtually
always introduce evidence explaining a defendant’s motive. Colone v. State, 573
S.W.3d 249, 267 (Tex. Crim. App. 2019). Thus, the ostensible prejudice associated
with evidence of motive must be quite significant to substantially outweigh its
probative value to the degree necessary to render it inadmissible under the rules.
Here, this highly probative motive-related evidence is not especially
prejudicial. The references to domestic violence were minimal during the guilt–
innocence phase of trial. The prosecution made a fleeting reference to “family
violence” during its opening, but both sides subsequently referred to Rico and
Daugherty’s “messy relationship” in their openings. Daugherty later testified, over
objection, that Rico became “more violent” toward the end of their relationship.
18
Otherwise, the evidence on this subject generally concerned Daugherty’s ongoing
fear of Rico, which did not draw an objection from the defense on any ground.
Accordingly, as a threshold matter, we do not agree that the record shows
misconduct. Thus, the trial court did not err in denying the motions for mistrial.
Moreover, assuming for argument’s sake that the references to domestic
violence could constitute misconduct, the trial court still did not err in denying the
motions for mistrial. Because the references to physical abuse were brief and lacking
in detail, they were not particularly inflammatory in nature and any prejudice was
therefore minimal. And, given the very limited nature of these references, there is
little or no reason to believe that the jury found Rico guilty of the charged offense
based on these references, rather than the evidence of the burglary itself, which
included Facebook messages in which Rico indicated he was in Daugherty’s home
and intended to burn her possessions as well as a video of clothing being set alight
that Daugherty said included Rico’s voice. Viewing the record as a whole, this is not
the kind of exceptional case in which extreme circumstances required a mistrial.
We overrule Rico’s third issue.
IV. Lesser-Included Offense
Rico contends the trial court erred in not instructing the jury on the offense of
criminal trespass because it is a lesser-included offense of burglary of a habitation.
However, the record shows that Rico did not preserve this error for review.
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A. Error preservation
A trial court does not have an independent duty to instruct the jury about a
lesser-included offense in the absence of a request for an instruction. Williams v.
State, 662 S.W.3d 452, 455 (Tex. Crim. App. 2021). Like defensive instructions,
instructions about lesser-included offenses implicate trial strategy. Id. Therefore, a
defendant can only complain on appeal of the trial court’s failure to include an
instruction about a lesser-included offense if he requests it at trial. Id. at 455–56.
Further, for a defendant to preserve this kind of error for appellate review, it
is necessary but not sufficient that he request an instruction about a particular lesser-
included offense in the trial court. Id. at 462. The defendant also “must point to
evidence in the record that raises the lesser-included offense.” Id. at 461. He must
identify this evidence with some degree of specificity. See id. at 462 (stating that “if
a defendant requests a particular lesser-included instruction and he sets out, on the
record, the specific evidence that supports a rational basis for rejecting the greater
offense but supporting the lesser offense, the trial judge errs if he refuses to instruct
the jury on that lesser offense”). Without this factual specificity, any error as to the
failure to include the instruction is not preserved for our review, unless the specific
evidence raising the lesser-included offense “is manifest” in context. Id.
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B. Analysis
On the record, the defense stated it had no objection to the trial court’s jury
charge. After the defense did so, the trial court noted that the defense had requested
an instruction on the lesser-included offense of criminal trespass off the record, and
the trial court stated that the requested instruction was not warranted because
criminal trespass was “not a lesser included under the facts of this case.” But during
the on-the-record discussion, the defense did not identify what specific evidence, if
any, the jury heard that entitled Rico to a lesser-included offense instruction. Nor
was the evidence on which the defense relied manifest in the surrounding context.
So, Rico did not preserve this issue for review. Williams, 662 S.W.3d at 461–62.
Moreover, even if this issue had been preserved, a defendant is entitled to an
instruction on a lesser-included offense only when some evidence in the record
suggests the possibility that if the defendant is guilty, he is guilty only of the lesser-
included offense. Moreno, 702 S.W.2d at 640. On appeal, Rico does not identify any
evidence of this sort. Instead, in his brief, Rico reasons that there was “no testimony”
on certain topics and asserts a jury could conclude from the absence of this evidence
that he lacked the intent necessary to commit the theft required for burglary.
As an initial matter, Rico’s characterization of the record is not accurate. He
asserts there “was no testimony that anything was taken from the house.” But Officer
Simons testified that Daugherty told him there were items missing from her home,
21
though he did not “know what she had missing” and said she “didn’t know exactly,”
apart from “some shoes” and “some scrubs” that were gone. Similarly, Richardson,
the crime scene technician, testified that Daugherty told her “there were some boots
missing,” two pairs of boots to be precise. Finally, Daugherty testified that Simons
asked her to write a list of the items that were missing from her home. Daugherty
said that to make this list, she “could just go off of what was missing in the closet,
which was pretty much everything that [she] had in [her] closet.” Thus, contrary to
Rico’s assertion, evidence exists that items were taken from Daugherty’s home.
Daugherty gave additional testimony connecting some, if not all, of her
missing items of clothing to the burned remnants of clothing found in the fire pit:
Q. Okay. And you believe what clothing items you had were in that
fire pit destroyed; is that correct?
A. Yes.
Daugherty believed this to be the case because she “saw [her] clothes in there
burned.” Officer Simons likewise testified that Daugherty showed him a fire pit in
which “clothes had been burned.” Simons further testified that he thought Daugherty
had informed him that these burned clothes had come from “just inside the
residence.” He could tell for himself that there had been some destruction of personal
property. Simons stated that when a fire marshal went through the pit in his presence,
“they were able to determine that some of the clothing” possibly was “scrubs and
shoes.” When Richardson testified, she likewise testified about the burned clothing
22
and an item that looked like the remains of boot sole, which Richardson
photographed.
Because the record is not at all as Rico portrays it, his argument about the
lesser-included offense would fail even if he had preserved this issue. Further, Rico’s
defense at trial—presented through Robles’s alibi testimony—was that he was not
in Daugherty’s home on the night of the burglary, not that he was there but for a
purpose other than committing theft. The record contains no evidence from which a
reasonable jury could find that, if guilty, Rico was only guilty of criminal trespass.
We overrule Rico’s fourth issue.
CONCLUSION
We affirm the trial court’s judgment.
Gordon Goodman
Justice
Panel consists of Justices Goodman, Landau, and Hightower.
Do not publish. TEX. R. APP. P. 47.2(b).
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