Aguilar v. State

682 S.W.2d 556, 1985 Tex. Crim. App. LEXIS 1193

• Court: Court of Criminal Appeals of Texas
• Decided: January 9, 1985
• Docket: 004-84
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction of attempted burglary of a building with intent to commit theft pursuant to V.T.C.A. Penal Code, § 15.01(a) and § 30.02(a)(1). The trial court assessed punishment at ten years imprisonment, probated, and a $250.00 fine.

On direct appeal, the El Paso Court of Appeals reversed the conviction and remanded the case for a new trial because the trial court failed to instruct the jury on the lesser included offense of attempted criminal trespass. We granted the State’s petition for discretionary review to examine the correctness of that decision.

The evidence at trial consisted solely of the testimony of two State’s witnesses. The owner of the building, complainant Refugio Curtis, testified she left the premises of the “105 Lounge” at 12:30 a.m. on September 20, 1981, locking the door as she left. She further related that the door to the business was in good condition when she locked up, but when she returned at 9:30 a.m. on the same day, she discovered that the top portion of the wooden door had been pushed back. She also testified that she did not give anyone permission to enter the building after she had gone.

Officer Eduardo Robles, Jr., a police officer in the city of El Paso, testified that he and his partner were dispatched to 105 Rio Grande in response to a “burglary in progress” call. Upon arrival at the scene, he observed two subjects standing in the recessed doorway to the 105 Lounge. The two individuals had their backs to the street and were facing the door to the bar. Officer Robles testified that he could not tell what they were doing at that time. As the two officers approached the suspects in a marked police vehicle, the two individuals began to run. After brief foot pursuit, they were apprehended and placed in a back-up police vehicle. Appellant was one of the arrested suspects. The officers then inspected the door to the 105 Lounge and discovered the top portion of the wooden door had been pushed back.

The appellant did not testify nor offer any defensive evidence.

Criminal trespass can be a lesser included offense of burglary of a building. Day v. State, 582 S.W.2d 302 (Tex.Cr.App.1976). 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. In Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981), this Court enunciated a two part test to determine whether a charge on the lesser included offense is required. “First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense.” (citation omitted.)

Under the second prong of the Royster test, there must be some evidence that the appellant, if guilty, is guilty only of the lesser included offense of criminal trespass. Thus, if testimony raises the issue that the defendant entered the premises for purposes other than to commit a felony or theft, he would be entitled to a charge on the lesser offense of trespass. Day, supra. But, if the defendant presents evidence that he committed no offense at all, McKinney v. State, 627 S.W.2d 731 (Tex.Cr.App.1982); McCardell v. State, 557 S.W.2d 289 (Tex.Cr.App.1977), or if he presents no evidence, Denison v. State, 651 S.W.2d 754 (Tex.Cr.App.1983); Thomas v. State, 543 S.W.2d 645 (Tex.Cr.App.1976), and there is no evidence otherwise raising the issue¹, a charge on the lesser offense of trespass is not required.

In the case at bar, while proving the offense of attempted burglary of a building with intent to commit theft, the State also proved the offense of attempted criminal trespass. There was, however, no evidence in the record from any source which showed that if Appellant was guilty, he was guilty of criminal trespass only. Denison, supra. Thomas, supra.

The Court of Appeals, however, held that since non-consensual nighttime entry raises a presumption of intent to commit theft, Mauldin v. State, 628 S.W.2d 793 (Tex.Cr.App.1982), and the jury is not bound to find the element of the offense sought to be presumed under V.T.C.A. Penal Code, § 2.05(2)(B), a charge on the lesser offense of trespass was required. We disagree.

At the outset, we note that a charge on lesser included offenses is not required merely because the jury is charged on the issue of the existence of a presumed fact under V.T.C.A. Penal Code, § 2.05. Beyond that, and more to the point, there was no trial presumption employed in this case. Penal Code § 2.05(2) applies only when “the existence of the presumed fact is submitted to the jury”. There was no reference to a presumption of intent to commit theft contained in this court’s charge to the jury; and correctly so. The “presumption”² of intent to commit theft arising from non-consensual nighttime entry is an appellate vehicle employed to review the sufficiency of the evidence, not a trial vehicle used to prove an element of the State’s case.

The trial court did not err in excluding an instruction on attempted criminal trespass. Accordingly, the judgment of the Court of Appeals is reversed. Since appellant’s other grounds of error were considered and overruled by the Court of Appeals, the judgment of the trial court is affirmed.

1 . See, Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984).

2 . We leave for another day the issue of whether this is truly a presumption or simply a permissible inference. See, Hardesty v. State, 656 S.W.2d 73 (Tex.Cr.App.1983). For the inauspicious genesis of the rule, see Mullins v. State, 35 Tex.Crim. 149, 32 S.W. 691 (1895) and Alexander v. State, 31 Tex.Crim. 359, 20 S.W. 756 (1892).