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
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:
The offense of burglary, contained in Section 30.02, V.T.C.A., Penal Code, is as follows:
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:
The offense of criminal trespass, contained in Section 30.05, V.T.C.A., Penal Code, is as follows:
The offense of criminal trespass therefore consists of the following elements:
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 trespass 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.
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:
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:
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.
ROBERTS, Judge (concurring).
I agree with the Court that criminal trespass is a lesser included offense of burglary under the new Penal Code. The main element distinguishing criminal trespass from the burglary alleged and proven here (under Art. 30.02(a)(1), V.T.C.A., Penal Code) is the intent to commit theft. Since this element was not conclusively established, the issue of criminal trespass was raised.
I add this brief concurrence only for the purpose of identifying the area of my disagreement with the dissenters. It is true, as they contend, that the element of theft was conclusively established. Since theft distinguishes burglary under Art. 30.02(a)(3) from criminal trespass, no issue of criminal trespass would be raised if this were a prosecution under 30.02(a)(3).
But the commission of a theft was not pleaded. Appellant was not on notice that he would have to defend against such an allegation. His entire defense was directed at the "intent to commit theft" allegation in the indictment. Under these circumstances, it would be patently unfair to deny him the opportunity of defending against the charge of which the dissenters find him guilty.
Nor is it any answer to say that the intent to commit theft could be presumed from the proof of the theft, since "intent to commit theft" was an issue at trial. Nor is it appropriate to say that the jury resolved the issue of "intent to commit theft" against the appellant. These statements would provide good post hoc rationalizations for the result, but they would miss appellant's primary contention: that the jury should have been given an opportunity to find appellant guilty of an offense which did not involve "intent to commit theft."
For the foregoing reasons, I cannot agree with the dissenters' position. I concur in the opinion of the Court.
DOUGLAS, Judge (dissenting).
Appellant testified and admitted that he entered the building without consent and committed theft. 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. The offense of burglary, contained in Section 30.02, V.T.C.A., Penal Code, provides, in part, as follows:
The offense of criminal trespass, contained in Section 30.05, V.T.C.A., Penal Code, is as follows:
In McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), this Court held that
The McBrayer opinion takes the statement from 4 Branch's Ann.P.C.2d, Section 1889, page 219. It is or was a good rule.
Appellant by his own testimony shows him to be guilty of burglary under Section 30.02(a)(3), supra. He entered the building without the consent of the owner and while there committed theft by taking the letter opener, putting it in his pocket and trying to sell or give it away. His testimony did not show that he was guilty only of a lesser included offense. It is not necessary to decide if criminal trespass is a lesser included offense of the offense of burglary under the facts of this case.
The court did not err in refusing to give the requested instructions.
Assuming that the charge should have been given, if there was ever harmless error in a court's charge, it is in this case. The Legislature no doubt had instances such as this in mind when it passed the predecessors of and Article 36.19, V.A.C.C.P., which provides that a judgment shall not be reversed for an error in the court's charge "unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial...."
In this case the appellant testified to an unbelievable and fantastic story. He admitted on direct examination that he had been convicted for the offense of grand larceny in Oklahoma and had been out on parole for only three months prior to being caught in the burglarized building at approximately three o'clock in the morning. He had in his pocket a Japanese knife or letter opener that had been taken from the desk of the manager of the cafeteria. He attempted to sell the knife to one of the officers. His explanation was that he entered the building at three o'clock in the morning to call the police after he had seen a man running from the building. His testimony was that he entered the building to make the call because he was walking and was some five or six blocks from his motel and he did not want to wait that long. This testimony was from a man who was on parole for a crime involving theft.
The majority reverses because the court did not instruct the jury in effect that if appellant entered the building with no intent to steal they could find him guilty of the misdemeanor offense of criminal trespass. He admitted stealing the knife "by reflex action" and trying to sell it.
The majority should apply (or at least discuss) the mandate of the Legislature and
Would the majority reverse if the appellant had testified that he went through the window in a landing from a space craft? Probably so, based on its opinion in this case, because there would be evidence raising the issue.
See the dissenting opinions in Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App.1975). The charge was assault with intent to murder a police officer. The officer testified that Thompson shot at him four times. Thompson testified that his gun accidentally discharged four times. That case was reversed because the trial court did not charge on aggravated assault.
The judgment should be affirmed.
MORRISON, J., joins in this dissent.
OPINION ON STATE'S MOTION FOR REHEARING
On original submission appellant's conviction was reversed for failure of the trial court to submit a charge on the lesser included offense of criminal trespass. We held that the evidence raised the issue and that under Art. 37.09(1), V.A.C.C.P., and the facts of this case, criminal trespass was a lesser included offense to the burglary charged.
On motion for rehearing the State contends that the evidence does not raise the issue. On this point we remain convinced of the soundness of our opinion on original submission. We perceive the thrust of the State's argument to be that appellant's testimony at best raised the issue of Public Duty (V.T.C.A. Penal Code Sec. 9.21) or Necessity (V.T.C.A. Penal Code Sec. 9.22). While it may be true that appellant, upon request, also would have been entitled to a charge on the defensive theories stated, that would not alter the fact, as found on original submission, that the lesser included offense of criminal trespass was also raised by the evidence.
The State also contends in its motion for rehearing that the requested charge was properly denied because the indictment would not support a conviction for criminal trespass.
The State cites numerous authorities for the proposition that an indictment will not support conviction for what otherwise would be a lesser included offense unless the indictment pleads all of the necessary allegations to charge such other offense. We first observe that the authorities relied upon were decided prior to the amendments of Arts. 37.08 and 37.09, V.A.C.C.P., that were conforming amendments contained in the Penal Code Act (Acts 1973, 63rd Leg., ch. 399, Sec. 2).
We are aware of no statutory provision prior to the 1973 amendments to the Code of Criminal Procedure governing lesser included offenses as that term is now defined in Art. 37.09, supra. Articles 37.08 and 37.09, supra, prior to amendment provided for offenses with different degrees. The scheme envisioned in those two articles dates from the earliest days of codified criminal procedure in this State.
Subsequent to the 1851 decision in Givens v. State, supra, the Legislature took what
Article 630 of the 1856 Code of Criminal Procedure (hereinafter O.C.) was the origin of Art. 37.08, V.A.C.C.P. (1965) and provided:
Article 631 (O.C.) was the origin of Article 37.09, V.A.C.C.P. (1965), and provided:
Except for changes in the enumerated offenses of Art. 631 (O.C.) and minor changes in Art. 630 (O.C.), these two articles preserved the same statutory scheme from their original enactment in the 1850's up to the time of the fundamental changes enacted in 1973. Through that history of those articles there have arisen many occasions for the successive high courts of this State to apply and interpret those two articles. Regardless of what rules would have governed had the statutes on degrees of offenses never been enacted, two principles have emerged from the jurisprudential history of the two statutes.
First, there are two types of cases in which conviction may be had for an offense other than the primary offense charged in the indictment. This was recognized in the opinion by Judge Woodley writing for the Court in Tomlin v. State, 155 Tex.Cr.R. 207, 233 S.W.2d 303, wherein it is stated:
The rule was again stated in Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479, wherein Judge Morrison, writing for the Court, stated:
"`In a prosecution for an offense including lower offenses, the jury may find the defendant not guilty of the higher offense, but guilty of any lower offense included.'
"Article 695, C.C.P., enumerates offenses which include different degrees.
It may also be found stated in Van Arsdale v. State, 149 Tex.Cr.App. 639, 198 S.W.2d 270.
This principle recognizes that if the "lesser offense" considered is not by statute a degree of the primary offense charged, no conviction may be had for that lesser offense unless it is itself sufficiently pleaded in the indictment.
The second principle that has found expression in the court opinions considering the statutes under discussion is reflected in the recognition by the judiciary that the mere fact that the Legislature by statute provides that one offense is but another degree of the offense charged does not make it true. To dispense with the need for pleading all the constituent elements of the lesser offense, which applies in other cases (e. g., Tomlin, Daywood, both supra), the relationship between the offense charged and the other offense not only must be within the terms of the statute specifying offenses with degrees, but also that relationship between the two offenses must be such that the other offense is in fact not repugnant to the offense charged. To state that the Legislature by statute may authorize conviction for any offense so designated upon trial for some other offense regardless of the relationship between the two is to state an obvious absurdity violative of basic principles of due process.
The application of this principle is demonstrated in comparing two early cases decided by the Texas Court of Appeals. Huntsman v. State, 12 Tex.App. 619 (Austin Term, 1882); Peterson v. State, 12 Tex.App. 650 (Austin Term, 1882). These two cases, decided at the same term of court, considered then Article 714 of the Code of Criminal Procedure (predecessor to Art. 37.09,
Later, in Brown v. State, 15 Tex.App. 581 (1884), the Court considered whether an indictment for theft would authorize conviction for receiving stolen property. The Court overruled prior decisions to the contrary,
Eventually the same principle led to the overruling of numerous decisions on appeals from convictions for driving livestock from its accustomed range. In Long v. State, 39 Tex.Cr.R. 537, 46 S.W. 821 (1898), it was held that a conviction for that offense could not be had upon an indictment charging theft. Cf. Campbell v. State, 22 Tex.App. 262, 2 S.W. 825; Foster v. State, 21 Tex. App. 80, 17 S.W. 548; Smith v. State, 17 S.W. 560; Smith v. State, supra, at 561 (dissenting opinion by Judge Hurt).
In dictum in a case involving other issues, encyclopedic authority was quoted with approval to the following effect:
The principles and rules applied in the cases cited and discussed above now may be summarized. Prior to the enactment of a new statutory scheme of lesser included offenses in 1973, there were two types of "lesser offenses" subject to different rules regarding the power of the court to enter a judgment of conviction for the lesser offense upon the indictment charging the greater offense. If the greater offense by statute consisted of degrees, the elements of the lesser degree did not have to be alleged in the indictment. If the lesser offense was not made a degree of the greater by statute, the elements of the lesser had to be alleged in the indictment before
On original submission we held that on the facts of this case criminal trespass was a lesser included offense to the burglary charged under the terms of Art. 37.09(1), V.A.C.C.P. With respect to the State's challenge raised against the power of the court to enter judgment for criminal trespass upon the indictment in this case,
There remains to be considered, before we have thoroughly disposed of the State's challenge to the power of the court to convict appellant for criminal trespass upon the indictment for burglary, whether Arts. 37.08 and 37.09(1), supra, are constitutional insofar as by their terms they authorize such a conviction. Article 37.08 now provides:
Article 37.09 now provides:
(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 careful reader will observe that each definition in Art. 37.09 is stated with reference to "the offense charged," and moreover, each such definition specifically states the manner in which the lesser included offense differs from the offense charged. The enumerated variations in the statute do not enlarge upon the offense charged, but instead vary in a manner that either is restrictive or reduces culpability as compared to the offense charged. In view of those restrictions, we hold Arts. 37.08 and 37.09, supra, are constitutional insofar as they authorize, as did the prior scheme of degrees of offenses, conviction upon an indictment charging one offense for a lesser included offense of the offense charged. We must add, however, that whether one offense bears such a relationship to the offense charged is an issue which must
The State's motion for rehearing is overruled.
MORRISON, Judge (concurring in part and dissenting in part on State's Motion for Rehearing).
I agree with and congratulate my brother ODOM on the scholarly part II of his opinion.
I do not agree, however, that the evidence in this case raises the issue of criminal trespass, and therefore must vigorously dissent to part I of the opinion.
DOUGLAS, Judge (dissenting opinion on State's Motion for Rehearing).
In addition to the reasons set out in the dissenting opinions on original submission, appellant's testimony does not show a criminal trespass. According to the testimony of appellant, he went into the building rightfully in the early morning hours to call officers to report a burglary. After the entry, he committed the crime of theft. No crime of criminal trespass was alleged and no such crime was proved by appellant's testimony.
The court did not err in refusing to submit a charge on a lesser included offense.
The Constitution of the Republic of Texas, adopted in 1836, provided in The Schedule thereof:
Section 7 of the General Provisions of that Constitution of the Republic provided in part:
Article IV, Section 13, of the Constitution of the Republic provided:
Thereafter the Congress of the Republic provided by Act, approved December 21, 1836, for the punishment of certain crimes and misdemeanors, and in Section 54 thereof provided:
The Congress of the Republic, by an Act approved January 20, 1840, provided:
At the time of annexation of Texas to the United States, the first Constitution of this State was drafted at convention and adopted by the people. Article XIII, Section 3 of the Constitution of 1845 provided: