POWERS, Justice.
Lee Allen Wadded appeals from a trial-court judgment convicting him of burglary of a budding. See Tex.Penal Code Ann. § 30.02(a)(1) (West 1994).
The jury found Wadded gudty. The trial judge, after finding that Wadded had committed a previous
felony as alleged in the indictment, fixed his punishment at sixty-years’ imprisonment. We mil reverse the judgment and remand the cause for a new trial.
THE CONTROVERSY
Waddell was indicted for burglary after a caretaker found him inside a house. The house had been vacant for several years and was left unlocked because of numerous break-ins. The owner testified the house was used primarily for storage and that Waddell did not have permission to be inside. The caretaker testified that when he confronted Waddell about his presence in the house, Waddell moved quickly toward the front door. The caretaker testified further that Waddell talked about “taking the bed” that was in the house because he was staying at his sister’s house next door and needed a bed. The evidence was conflicting about whether there was a bed for Waddell in his sister’s house. Waddell also told the caretaker that he was looking for his sister’s cat. Waddell’s sister corroborated his claim, testifying that she sent Waddell to the house to look for her cat. Nothing was taken from the house. None of the fingerprints found in the house matched Waddell’s although his palm print was found on a mirror.
DISCUSSION AND HOLDING
In point of error three, Waddell contends that defense counsel’s failure to request an instruction on criminal trespass, Texas Penal Code Annotated § 30.05 (West 1994), a lesser included offense of burglary, amounted to ineffective assistance of counsel, such that (1) counsel’s representation of Waddell fell below an objective standard of reasonableness (2) resulting in a reasonable probability that the outcome of the trial would have been different but for counsel’s deficient performance.
See Vasquez v. State,
830 S.W.2d 948, 949 (Tex.Crim.App.1992) (citing
Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel’s failure to request a jury instruction can render his assistance ineffective if, under the particular facts of the case, the trial judge would have erred in refusing the instruction had counsel requested it.
See Vasquez,
830 S.W.2d at 951. The defendant, however, bears the burden of overcoming the presumption that counsel’s decision not to request the instruction could be considered sound trial strategy.
See Jackson v. State,
877 S.W.2d 768, 771-72 (Tex.Crim.App.1994) (citing
Strickland,
466 U.S. at 689, 104 S.Ct. at 2065).
The offense of criminal trespass is a lesser included offense in each of the three kinds of burglary.
Aguilar v. State,
682 S.W.2d 556, 558 (Tex.Crim.App.1985);
Day v. State,
532 S.W.2d 302, 306 (Tex.Crim.App.1975). The offenses of burglary of a building and criminal trespass have similar elements except that burglary has the additional element of an intent to commit a felony or theft. Criminal trespass has no such element but has instead an element of notice.
See Williams v. State,
796 S.W.2d 793, 799 (Tex.App.—San Antonio 1990, no writ).
To determine whether an instruction regarding the lesser included offense of criminal trespass is
required
in a trial for burglary of a budding, the two requirements originally laid down in
Royster v. State,
622 S.W.2d 442, 446 (Tex.Crim.App.1981), must be met.
McKinney v. State,
627 S.W.2d 731, 732 (Tex.Crim.App.1982);
see also Day,
532 S.W.2d at 306. The two requirements are as follows:
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 would permit a jury rationally to
find
that if the defendant is guilty, he is guilty of only the lesser offense.
Rousseau v. State,
855 S.W.2d 666, 678 (Tex.Crim.App.), cer
t. denied,
— U.S. -, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993) (adding emphasized portion to
Royster
test).
On review of the record in the present ease, we find the evidence was sufficient, under
Royster,
to require the trial judge to give an instruction on the lesser offense of criminal trespass had one been requested. The testimony of the owner established that Waddell entered the house without her permission; thus, the want-of-consent elements of both burglary and criminal trespass are supported by the evidence.
The evidence also supports a conclusion that the house was not open to the public. Although the “notice” requirement of criminal trespass is not automatically established by proof of the facts necessary to prove burglary, where, as here, the evidence shows the “accused entered a budding
not then open to the public,
the ‘notice’ requirement would be satisfied by proof of entry into the building.”
Day,
532 S.W.2d at 306 (emphasis added). The building in issue was an uninhabited house that the owner used to store furniture and other personal belongings. There was testimony that the doors of the house were not only unlocked but also “open” at times. Nevertheless, the condition of the house when Waddell entered it was not such as to lead one reasonably to believe that it was open to the public or that one need not have permission to enter.
In addition, the evidence does not suggest that the house was a “public place,” defined by the Penal Code as “any place to which the public or a substantial group of the public has access and includes, but is not limited to streets, highways, and the common areas of schools, hospitals. . . .” Tex.Penal Code Ann. § 1.07(a)(40) (West 1994).
Waddell’s statement to the caretaker that he entered the house to look for a cat, corroborated by the testimony of his sister at trial, raised evidence of a lack of a specific intent on his part to commit a felony or theft, an element of burglary.
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POWERS, Justice.
Lee Allen Wadded appeals from a trial-court judgment convicting him of burglary of a budding. See Tex.Penal Code Ann. § 30.02(a)(1) (West 1994).
The jury found Wadded gudty. The trial judge, after finding that Wadded had committed a previous
felony as alleged in the indictment, fixed his punishment at sixty-years’ imprisonment. We mil reverse the judgment and remand the cause for a new trial.
THE CONTROVERSY
Waddell was indicted for burglary after a caretaker found him inside a house. The house had been vacant for several years and was left unlocked because of numerous break-ins. The owner testified the house was used primarily for storage and that Waddell did not have permission to be inside. The caretaker testified that when he confronted Waddell about his presence in the house, Waddell moved quickly toward the front door. The caretaker testified further that Waddell talked about “taking the bed” that was in the house because he was staying at his sister’s house next door and needed a bed. The evidence was conflicting about whether there was a bed for Waddell in his sister’s house. Waddell also told the caretaker that he was looking for his sister’s cat. Waddell’s sister corroborated his claim, testifying that she sent Waddell to the house to look for her cat. Nothing was taken from the house. None of the fingerprints found in the house matched Waddell’s although his palm print was found on a mirror.
DISCUSSION AND HOLDING
In point of error three, Waddell contends that defense counsel’s failure to request an instruction on criminal trespass, Texas Penal Code Annotated § 30.05 (West 1994), a lesser included offense of burglary, amounted to ineffective assistance of counsel, such that (1) counsel’s representation of Waddell fell below an objective standard of reasonableness (2) resulting in a reasonable probability that the outcome of the trial would have been different but for counsel’s deficient performance.
See Vasquez v. State,
830 S.W.2d 948, 949 (Tex.Crim.App.1992) (citing
Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel’s failure to request a jury instruction can render his assistance ineffective if, under the particular facts of the case, the trial judge would have erred in refusing the instruction had counsel requested it.
See Vasquez,
830 S.W.2d at 951. The defendant, however, bears the burden of overcoming the presumption that counsel’s decision not to request the instruction could be considered sound trial strategy.
See Jackson v. State,
877 S.W.2d 768, 771-72 (Tex.Crim.App.1994) (citing
Strickland,
466 U.S. at 689, 104 S.Ct. at 2065).
The offense of criminal trespass is a lesser included offense in each of the three kinds of burglary.
Aguilar v. State,
682 S.W.2d 556, 558 (Tex.Crim.App.1985);
Day v. State,
532 S.W.2d 302, 306 (Tex.Crim.App.1975). The offenses of burglary of a building and criminal trespass have similar elements except that burglary has the additional element of an intent to commit a felony or theft. Criminal trespass has no such element but has instead an element of notice.
See Williams v. State,
796 S.W.2d 793, 799 (Tex.App.—San Antonio 1990, no writ).
To determine whether an instruction regarding the lesser included offense of criminal trespass is
required
in a trial for burglary of a budding, the two requirements originally laid down in
Royster v. State,
622 S.W.2d 442, 446 (Tex.Crim.App.1981), must be met.
McKinney v. State,
627 S.W.2d 731, 732 (Tex.Crim.App.1982);
see also Day,
532 S.W.2d at 306. The two requirements are as follows:
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 would permit a jury rationally to
find
that if the defendant is guilty, he is guilty of only the lesser offense.
Rousseau v. State,
855 S.W.2d 666, 678 (Tex.Crim.App.), cer
t. denied,
— U.S. -, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993) (adding emphasized portion to
Royster
test).
On review of the record in the present ease, we find the evidence was sufficient, under
Royster,
to require the trial judge to give an instruction on the lesser offense of criminal trespass had one been requested. The testimony of the owner established that Waddell entered the house without her permission; thus, the want-of-consent elements of both burglary and criminal trespass are supported by the evidence.
The evidence also supports a conclusion that the house was not open to the public. Although the “notice” requirement of criminal trespass is not automatically established by proof of the facts necessary to prove burglary, where, as here, the evidence shows the “accused entered a budding
not then open to the public,
the ‘notice’ requirement would be satisfied by proof of entry into the building.”
Day,
532 S.W.2d at 306 (emphasis added). The building in issue was an uninhabited house that the owner used to store furniture and other personal belongings. There was testimony that the doors of the house were not only unlocked but also “open” at times. Nevertheless, the condition of the house when Waddell entered it was not such as to lead one reasonably to believe that it was open to the public or that one need not have permission to enter.
In addition, the evidence does not suggest that the house was a “public place,” defined by the Penal Code as “any place to which the public or a substantial group of the public has access and includes, but is not limited to streets, highways, and the common areas of schools, hospitals. . . .” Tex.Penal Code Ann. § 1.07(a)(40) (West 1994).
Waddell’s statement to the caretaker that he entered the house to look for a cat, corroborated by the testimony of his sister at trial, raised evidence of a lack of a specific intent on his part to commit a felony or theft, an element of burglary. There is, therefore, evidence in the record that would permit a jury to conclude that, if guilty, Waddell is guilty only of the lesser included offense of criminal trespass. Thus, it would have been error, under
Royster,
for the trial judge to refuse an instruction on criminal trespass.
The evidence in support of a conviction for criminal trespass when coupled with the post-trial testimony of defense counsel is sufficient to overcome the presumption that counsel’s failure to request the instruction was based on sound trial strategy.
Cf. Jackson,
877 S.W.2d at 771. During the hearing on Waddell’s motion for new trial, defense counsel testified that he concluded, based on the facts, that Waddell did not have authority to enter the house. He further testified, however, that an instruction on criminal trespass was not proper because Waddell did not have notice that entry to the house was forbidden
and
did not fail to depart after receiving notice to do so. Counsel’s testimony suggests that he wrongly believed that both illegal entry and failure to depart are necessary to support a conviction for criminal trespass.
See
Tex.Penal Code Ann. § 30.02(a)(1) (West 1994). In addition, counsel testified that he was not familiar with the holding in
Day,
discussed above, that proof of the “notice” element of criminal trespass can be established by the facts necessary to prove burglary of building “not then open to the public.”
See Day,
532 S.W.2d at 306.
Under these circumstances, when Wad-dell’s defense counsel failed to request an instruction on the lesser offense of criminal trespass, counsel’s performance fell below an objective standard of reasonableness.
See Vasquez,
830 S.W.2d at 951. Furthermore, we believe in light of the evidence that the
outcome of the trial might have been different had the criminal trespass instruction been requested and given. Without the instruction, the jury was not given the opportunity to evaluate the evidence as it relates to the lesser offense. This alone undermines our confidence in the conviction.
See id.
Accordingly, we reverse the judgment of the trial court and remand the cause for a new trial. We therefore need not address Waddell’s remaining points of error.