IN THE TENTH COURT OF APPEALS
No. 10-17-00023-CR
JUSTIN RAY HOLLOWAY, Appellant v.
THE STATE OF TEXAS, Appellee
From the 361st District Court Brazos County, Texas Trial Court No. 13-04147-CRF-361
MEMORANDUM OPINION
Justin Holloway appeals from a conviction for the offense of burglary of a
habitation with the intent to commit theft. TEX. PENAL CODE ANN. § 30.02 (West 2011).
Holloway complains that the trial court erred by failing to include a lesser-included
offense of criminal trespass in the jury charge and that he received ineffective assistance
of counsel. Because we find no reversible error, we affirm the judgment of the trial court.
JURY CHARGE ERROR
Holloway complains that the trial court abused its discretion by refusing to include a lesser-included offense in the jury charge. In the indictment, Holloway was alleged to
have "intentionally or knowingly enter[ed] a habitation without the effective consent of
Jane Doe or Corey Heitzman, the owner thereof, and attempted to commit or committed
theft of property, to wit: a phone owned by Jane Doe or photographs contained on a
computer owned by Jane Doe." Holloway requested the inclusion of the lesser-included
offense of criminal trespass, which the trial court refused.
In determining whether a charge on a lesser-included offense is required, we apply
the two-step analysis set forth in Rousseau v. State. Rousseau v. State, 855 S.W.2d 666, 672
(Tex. Crim. App. 1993); see also Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002).
Under the first prong of Rousseau, Holloway must establish that the lesser-included
offense is included within the proof necessary to establish the charged offense. TEX.
CODE. CRIM. PROC. ANN. art 37.09 (West 2006); Feldman, 71 S.W.3d at 750; Rousseau, 855
S.W.2d at 672. Second, the record must include some evidence that would permit a jury
to rationally find that, if guilty, Holloway is guilty only of the lesser-included offense.
Feldman, 71 S.W.3d at 750; Rousseau, 855 S.W.2d at 672.
In the first prong, we compare the elements of the offense, as charged in the
indictment or information, with the elements of the asserted lesser-included offense.
State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013); Hall v. State, 225 S.W.3d 524,
535-36 (Tex. Crim. App. 2007). Texas follows the "cognate-pleadings approach," which
requires the court to compare the elements of the offense as alleged in the indictment
Holloway v. State Page 2 with the elements of the potential lesser-included offense. See Hall, 225 S.W.3d at 535-36;
see also Bowen v. State, 374 S.W.3d 427, 431 (Tex. Crim. App. 2012). An offense is deemed
a lesser-included offense of another offense if the indictment for the greater-inclusive
offense alleges either: (1) all of the elements of the lesser-included offense; or (2) elements
plus facts from which all of the elements of the lesser-included offense may be deduced.
Meru, 414 S.W.3d at 162. This first prong of the Rousseau test is a question of law and does
not consider the evidence adduced at trial. Hall, 225 S.W.3d at 535.
If, in our analysis of the first prong of Rousseau, we determine that the requested
lesser offense qualifies as a lesser-included offense, then we address the second prong
and determine "whether a rational jury could find that, if the defendant is guilty, he is
guilty only of the lesser offense." Meru, 414 S.W.3d at 162-63. In this second prong of
Rousseau, we consider whether the evidence presented at trial raised a fact issue about
whether Holloway was guilty of only the lesser offense. Id. at 163. If so, then a lesser-
included-offense instruction should have been given. Id. But, if our analysis under the
first prong of Rousseau shows that the requested lesser offense does not qualify as a lesser-
included offense, we need not proceed to the second prong. Id. at 164.
In Meru, the Texas Court of Criminal Appeals held that, as a general rule, criminal
trespass will not be a lesser-included offense of burglary because trespass requires proof
of a greater intrusion on the complainant's property than burglary does. Id. at 163-64.
"Entry" for purposes of criminal trespass requires "intrusion of the entire body," while
Holloway v. State Page 3 "entry" for purposes of burglary requires only a partial intrusion by any part of the body
or physical object connected with the body. Id. at 163. As a result, trespass qualifies as a
lesser-included offense of burglary only if "the indictment alleges facts that include the
full-body entry into the habitation by the defendant." Id. at 164. Because the indictment
in Meru did not "allege[] facts that include the full-body entry into the habitation by the
defendant," criminal trespass was not a lesser-included offense of burglary. Id.
Like the indictment in Meru, Holloway's indictment does not allege any specifics
regarding the manner in which he entered Heitzman and Doe's residence, i.e., whether
the entry was full or only partial. And, under the cognate-pleadings approach, we may
not look to the evidence presented at trial to determine the issue. See id. at 162 (stating
that first step of Rousseau analysis "is a question of law that does not depend on the
evidence presented at trial"). Thus, we conclude that in this case, as in Meru, criminal
trespass is not a lesser-included offense of burglary. Having determined that Holloway
does not meet the first prong of the Rousseau test for lesser-included offenses, we need
not address the second prong. See Meru, 414 S.W.3d at 164.
Under Almanza v. State, we review a claim of reversible jury charge error by first
determining whether there was an error in the charge. Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1985); Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).
Because we have determined that, in this case, criminal trespass is not a lesser-included
offense of burglary, the trial court was not required to include it in the charge, and
Holloway v. State Page 4 therefore, there was no error in the jury charge on this basis. See Barrios, 283 S.W.3d at
353. We overrule issue one.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, Holloway complains that he received ineffective assistance of
counsel because his trial counsel relied on an invalid defense and failed to present
evidence regarding joint ownership of the cell phone and laptop that were alleged to have
been the basis of the theft allegations.
To prevail on a claim of ineffective assistance of counsel, Holloway was required
to show that (1) counsel's performance fell below an objective standard of reasonableness
and (2) but for counsel's unprofessional error, there is a reasonable probability that the
result of the proceeding would have been different. Strickland v.
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IN THE TENTH COURT OF APPEALS
No. 10-17-00023-CR
JUSTIN RAY HOLLOWAY, Appellant v.
THE STATE OF TEXAS, Appellee
From the 361st District Court Brazos County, Texas Trial Court No. 13-04147-CRF-361
MEMORANDUM OPINION
Justin Holloway appeals from a conviction for the offense of burglary of a
habitation with the intent to commit theft. TEX. PENAL CODE ANN. § 30.02 (West 2011).
Holloway complains that the trial court erred by failing to include a lesser-included
offense of criminal trespass in the jury charge and that he received ineffective assistance
of counsel. Because we find no reversible error, we affirm the judgment of the trial court.
JURY CHARGE ERROR
Holloway complains that the trial court abused its discretion by refusing to include a lesser-included offense in the jury charge. In the indictment, Holloway was alleged to
have "intentionally or knowingly enter[ed] a habitation without the effective consent of
Jane Doe or Corey Heitzman, the owner thereof, and attempted to commit or committed
theft of property, to wit: a phone owned by Jane Doe or photographs contained on a
computer owned by Jane Doe." Holloway requested the inclusion of the lesser-included
offense of criminal trespass, which the trial court refused.
In determining whether a charge on a lesser-included offense is required, we apply
the two-step analysis set forth in Rousseau v. State. Rousseau v. State, 855 S.W.2d 666, 672
(Tex. Crim. App. 1993); see also Feldman v. State, 71 S.W.3d 738, 750 (Tex. Crim. App. 2002).
Under the first prong of Rousseau, Holloway must establish that the lesser-included
offense is included within the proof necessary to establish the charged offense. TEX.
CODE. CRIM. PROC. ANN. art 37.09 (West 2006); Feldman, 71 S.W.3d at 750; Rousseau, 855
S.W.2d at 672. Second, the record must include some evidence that would permit a jury
to rationally find that, if guilty, Holloway is guilty only of the lesser-included offense.
Feldman, 71 S.W.3d at 750; Rousseau, 855 S.W.2d at 672.
In the first prong, we compare the elements of the offense, as charged in the
indictment or information, with the elements of the asserted lesser-included offense.
State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013); Hall v. State, 225 S.W.3d 524,
535-36 (Tex. Crim. App. 2007). Texas follows the "cognate-pleadings approach," which
requires the court to compare the elements of the offense as alleged in the indictment
Holloway v. State Page 2 with the elements of the potential lesser-included offense. See Hall, 225 S.W.3d at 535-36;
see also Bowen v. State, 374 S.W.3d 427, 431 (Tex. Crim. App. 2012). An offense is deemed
a lesser-included offense of another offense if the indictment for the greater-inclusive
offense alleges either: (1) all of the elements of the lesser-included offense; or (2) elements
plus facts from which all of the elements of the lesser-included offense may be deduced.
Meru, 414 S.W.3d at 162. This first prong of the Rousseau test is a question of law and does
not consider the evidence adduced at trial. Hall, 225 S.W.3d at 535.
If, in our analysis of the first prong of Rousseau, we determine that the requested
lesser offense qualifies as a lesser-included offense, then we address the second prong
and determine "whether a rational jury could find that, if the defendant is guilty, he is
guilty only of the lesser offense." Meru, 414 S.W.3d at 162-63. In this second prong of
Rousseau, we consider whether the evidence presented at trial raised a fact issue about
whether Holloway was guilty of only the lesser offense. Id. at 163. If so, then a lesser-
included-offense instruction should have been given. Id. But, if our analysis under the
first prong of Rousseau shows that the requested lesser offense does not qualify as a lesser-
included offense, we need not proceed to the second prong. Id. at 164.
In Meru, the Texas Court of Criminal Appeals held that, as a general rule, criminal
trespass will not be a lesser-included offense of burglary because trespass requires proof
of a greater intrusion on the complainant's property than burglary does. Id. at 163-64.
"Entry" for purposes of criminal trespass requires "intrusion of the entire body," while
Holloway v. State Page 3 "entry" for purposes of burglary requires only a partial intrusion by any part of the body
or physical object connected with the body. Id. at 163. As a result, trespass qualifies as a
lesser-included offense of burglary only if "the indictment alleges facts that include the
full-body entry into the habitation by the defendant." Id. at 164. Because the indictment
in Meru did not "allege[] facts that include the full-body entry into the habitation by the
defendant," criminal trespass was not a lesser-included offense of burglary. Id.
Like the indictment in Meru, Holloway's indictment does not allege any specifics
regarding the manner in which he entered Heitzman and Doe's residence, i.e., whether
the entry was full or only partial. And, under the cognate-pleadings approach, we may
not look to the evidence presented at trial to determine the issue. See id. at 162 (stating
that first step of Rousseau analysis "is a question of law that does not depend on the
evidence presented at trial"). Thus, we conclude that in this case, as in Meru, criminal
trespass is not a lesser-included offense of burglary. Having determined that Holloway
does not meet the first prong of the Rousseau test for lesser-included offenses, we need
not address the second prong. See Meru, 414 S.W.3d at 164.
Under Almanza v. State, we review a claim of reversible jury charge error by first
determining whether there was an error in the charge. Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1985); Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).
Because we have determined that, in this case, criminal trespass is not a lesser-included
offense of burglary, the trial court was not required to include it in the charge, and
Holloway v. State Page 4 therefore, there was no error in the jury charge on this basis. See Barrios, 283 S.W.3d at
353. We overrule issue one.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, Holloway complains that he received ineffective assistance of
counsel because his trial counsel relied on an invalid defense and failed to present
evidence regarding joint ownership of the cell phone and laptop that were alleged to have
been the basis of the theft allegations.
To prevail on a claim of ineffective assistance of counsel, Holloway was required
to show that (1) counsel's performance fell below an objective standard of reasonableness
and (2) but for counsel's unprofessional error, there is a reasonable probability that the
result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
669, 104 S. Ct. 2052, 2055-56, 80 L. Ed. 2d 674 (1984); Mitchell v. State, 68 S.W.3d 640, 642
(Tex. Crim. App. 2002). It is Holloway's burden to establish both prongs by a
preponderance of the evidence; failure to make a showing under either prong defeats a
claim for ineffective assistance. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011);
see Mitchell, 68 S.W.3d at 642.
Under the second prong of Strickland, Holloway had to "show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.
App. 2010) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). "The likelihood of a
Holloway v. State Page 5 different result must be substantial, not just conceivable." Harrington v. Richter, 131 S. Ct.
770, 792, 178 L. Ed. 2d 624 (2011).
Our review of the record shows that Holloway has not met his burden to show
that there is a reasonable probability that the result would have been different by a
preponderance of the evidence. As Holloway acknowledges in his brief to this Court,
"[t]he uncontroverted evidence established that appellant entered Heitzman's home
without Heitzman's consent and removed Doe's property." Even if we were to find that
the first prong of Strickland had been met, which we do not, we do not find that Holloway
has met his burden to establish the second prong and therefore, his second issue relating
to his claim of ineffective assistance of counsel is overruled.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed November 15, 2017 Do not publish [CR25]
Holloway v. State Page 6