United States v. Bailey

REVISED
UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 95-50254

UNITED STATES OF AMERICA

Plaintiff-Appellee

VERSUS

JIMMY C. BAILEY

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas

April 25, 1997
Before DAVIS and DUHÉ, Circuit Judges, and Dowd,1 District Judge.

JOHN M. DUHÉ, JR., Circuit Judge:

Appellant Jimmy C. Bailey challenges his conviction on

multiple counts related to his breaking and entering into the homes

of Vicki LaShawn Griffin2 and Michelle Joshua, residents on the

Fort Hood Military Reservation. For reasons that follow, we

1
District Judge of the Northern District of Ohio, sitting by
designation.
2
At the time of trial, Griffin was using the name Vicki
LaShawn Armstrong. Because she was known as Vicki LaShawn Griffin
during the events in question, we will refer to her as Griffin.
affirm.

BACKGROUND

Count 1 of the indictment charges Bailey with the aggravated

sexual abuse of Griffin, in violation of 18 U.S.C. §§ 2241(a)(1)

and 2245; count 2 charges Bailey under theAssimilative Crimes Act

18 U.S.C. § 13, with the burglary of Griffin’s habitation with

intent to commit aggravated sexual assault, sexual assault, and

aggravated sexual abuse, in violation of Tex. Pen. Code §§ 22.011,

22.021, 30.02, and 18 U.S.C. § 2241(a)(1); count 3 charges Bailey

under the Assimilative Crimes Act, with burglary of Joshua’s

habitation with intent to commit aggravated sexual assault, sexual

assault, aggravated sexual abuse, and theft, in violation of Tex.

Pen. Code §§ 22.011, 22.021, 30.02, and 18 U.S.C. § 2241(a)(1);

count 4 charges Bailey with receipt of a stolen firearm valued at

more than $100, in violation of 18 U.S.C. § 662.

The acts alleged in counts 1 and 2 arose out of an incident

occurring in Griffin’s home on the Fort Hood military base in

Texas.3 In the pre-dawn hours of May 25, 1992, Griffin, a Staff

Sergeant in the United States Army, awoke to being choked by a man

she later identified as Bailey. As he was choking her, Bailey

placed his hand in Griffin’s underwear and inserted his finger into

her vagina. Griffin pushed Bailey away, screamed for help, and

asked Bailey to leave her alone. Bailey left but then returned,

3
Fort Hood, an United States military reservation, is a
federal enclave as defined in 18 U.S.C. § 7, the basis for which
the Assimilative Crimes Act applies.

2
and Griffin again pleaded for her safety. This time, Bailey left

and did not return.

Griffin, having observed her attacker in the bright hallway

light while he stood in her bedroom doorway, described him as a

five foot ten or eleven inches tall, light-skinned, Hispanic male

with hair close to his head and a light mustache, and clothed only

in light blue hospital pants and white canvas shoes.4 Although a

police sketch was made, Bailey was not identified as Griffin’s

attacker until some months later when Griffin spoke with Staff

Sergeant Yvette Smalls about a similar attack on Smalls. That

conversation led Griffin to a high school yearbook containing

Bailey’s photo, by which she identified Bailey as her attacker.

Griffin identified Bailey again in three subsequent photo line-ups.

Counts 3 and 4 of the indictment are based upon an incident

that occurred on August 25, 1993, in the home of Michelle Joshua.

Joshua, who lived alone on the Fort Hood base, was sleeping on her

couch when she awoke in the pre-dawn morning because she felt that

someone had pulled her toe. Awake, she began watching television

but was interrupted by “a bumping sound.” Joshua arose from the

couch, turned around, and saw a man in one of the bedrooms emerging

from a closet. He wore a ski mask and dark-colored pants but no

shirt. Joshua screamed and ran to a neighbor’s house to call the

police. When the police arrived, Joshua informed them that a

foreign car she believed belonged to the intruder was parked at the

4
Griffin testified that at the time of trial, Bailey looked
heavier and had more hair on his head and under his chin than he
had had at the time of the attack.

3
end of her driveway. Upon investigation, the police found a black

ski mask on the back seat of the car and a Ruger nine millimeter

pistol and two magazines in the trunk. The car belonged to one of

Bailey’s parents. When Joshua later returned to her house, she

found nothing missing but noticed that the closet was “messed up.”

The police later discovered that the pistol found in Bailey’s trunk

belonged to a mechanic on Fort Hood, who had reported it stolen in

June 1993.

When questioned, Bailey initially denied entering Joshua’s

home but admitted to having been in the area. He then changed his

story and confessed to entering Joshua’s residence but claimed he

did not know why he had done so. Bailey also acknowledged he owned

a ski mask that he wore “for fun.” He denied having worn the mask

in Joshua’s home, however. He also stated that he had bought the

gun found in his car with full knowledge that it was stolen.

Bailey was convicted by a jury on all counts.

DISCUSSION

Bailey argues that (1) the district court erred in admitting

evidence of an extrinsic offense; (2) the evidence is insufficient

to convict him on the burglary charge (count 3); (3) the district

court erred in denying his motion to dismiss counts 3 and 4 for

alleged violations of the Speedy Trial Act; and (4) the district

court erred in refusing to instruct the jury on the lesser included

offense of criminal trespass. We are unpersuaded by Bailey’s

arguments.

I.

4
 The district court, under Fed. R. Evid. 404(b), admitted

evidence of Bailey’s attack on Smalls only to demonstrate Bailey’s

intent and identity in committing the burglaries charged in counts

2 and 3. The 404(b) evidence showed the following: On November

22, 1991, Smalls was awakened before sunrise when her touch-

sensitive bedside lamp came on, and found a stranger standing in

her bedroom doorway. Alarmed, Smalls asked the intruder his

identity. The intruder did not respond and instead sat down on

Smalls’s bed while Smalls was still in it. He informed Smalls that

he was coming to visit a previous occupant who had given him

unrestricted access. He failed to identify this person, however,

and did not leave Smalls’s home despite the realization of his

purported mistake. Although Smalls asked him to leave, he

refused. Eventually, the intruder told Smalls, without revealing

his name, that he was a football player at Killeen High School.

Four to six hours after his entry into Smalls’s home, during which

time he constantly guarded Smalls for fear she would call the

police, the intruder finally left. As he was leaving, the intruder

pulled Smalls towards him, pushed her up against the wall, and

grabbed her breast and crotch. When she screamed, he ran out.

Thereafter, Smalls examined photographs of high school football

teams in Killeen and identified Bailey as her attacker.

During an interview conducted two days after the incident,

Bailey admitted that he had entered Smalls’s home uninvited, that

he had stayed some length of time, that he had seen her breasts,

and that he had asked Smalls to have sex with him. He denied

5
grabbing Smalls’s breasts or vaginal area, however, but conceded he

may have brushed up against her chest.

Bailey maintains that the admission of this evidence is not

relevant to the charged burglary offenses and that its prejudicial

effect outweighs its probative value. We disagree.

The decision to admit or exclude extrinsic evidence is subject

to reversal only upon a clear showing of an abuse of discretion.

See United States v. Sanchez, 988 F.2d 1384, 1393 (5th Cir. 1993);

United States v. Peden, 961 F.2d 517, 521 (5th Cir. 1992). Rule

404(b) provides, in pertinent part:

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in
order to show action in conformity therewith. It
may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake or accident . . . .

This Court has established a two-prong test that governs the

admissibility of Rule 404(b) evidence. See United States v.

Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). First, the

evidence must be relevant to an issue other than the defendant’s

character. Second, the probative value of the evidence must not be

substantially outweighed by its undue prejudice and the evidence

must meet the other requirements of Rule 403. See id.; United

States v. Williams, 957 F.2d 1238, 1243-44 (5th Cir. 1992). We

conclude that both prongs are satisfied, and that the evidence was

therefore properly admitted.

A.

The Government contends that the evidence of Bailey’s attack

6
on Smalls is relevant to show identity and intent, both of which

Bailey disputed at trial. Extrinsic offense evidence is relevant

to an issue other than the defendant’s character only if the jury

can reasonably conclude that the extrinsic act occurred and that

the defendant was the actor. See Huddleston v. United States, 485

U.S. 681, 689 (1988); see also Beechum, 582 F.2d at 912-13

(rejecting standards developed in United States v. Broadway, 477

F.2d 991 (5th Cir. 1973), for establishing relevance; and adopting

more lenient test). Evidence of Bailey’s attack on Smalls is

therefore relevant to identity and intent under the Government’s

theory only if the jury could reasonably find that (a) Bailey

himself entered Smalls’s home; and (b) he did so with the intent

to commit aggravated sexual assault, sexual assault, and aggravated

sexual abuse. See Beechum, 582 F.2d at 913.

The Government proved that Bailey was the perpetrator of the

crime against Smalls. Indeed, Bailey admitted to having been in

Smalls’s home without invitation the night of the offense. The

jury thus could reasonably find that Bailey was Smalls’s attacker.

Evidence of Smalls’s attack is therefore clearly relevant to the

issue of identity. We are also convinced that the 404(b) evidence

is relevant to the issue of intent but pretermit any discussion of

that issue as unnecessary in light of the holding regarding

identity.

B.

Although relevant, the evidence may nonetheless be excluded if

its probative value is substantially outweighed by the danger of

7
unfair prejudice. See id. at 911 (citing Fed. R. Evid. 403).

1.

In determining the probity of 404(b) evidence, the test to be

applied varies depending on the issue for which the evidence is

offered. See id. at 911 n.15. Where 404(b) evidence is introduced

to establish identity, the crucial consideration is the similarity

of the extrinsic and charged offenses, but the degree of similarity

must be much greater than that for intent. See id. at 911-12 n.15;

see also United States v. Lail, 846 F.2d 1299, 1301 (11th Cir.

1988). “The physical similarity [between the offenses] must be

such that it marks the offenses as the handiwork of the accused.

In other words, the evidence must demonstrate a modus operandi.”

Beechum, 582 F.2d at 911-12 n.15 (citation omitted). The

Government maintains that the evidence shows that there were

substantial similarities among the three incidents. All three took

place uninvited in the homes of single women living on Fort Hood;

all occurred during pre-dawn hours; and each victim was physically

touched in some way without consent, two of whom were touched while

they were sleeping. Bailey correctly points out that the facts

that the women were all single and were physically touched in some

way while they were sleeping is not compelling because these are

characteristics shared by a number of sexual assaults. However,

the location and timing of each intrusion--Fort Hood during pre-

dawn hours--is of signature quality. Cf. Sanchez, 988 F.2d at 1394

(recognizing that similarity of locale of extrinsic and charged

offenses is one factor relevant in determining probity of extrinsic

8
offense in identity inquiry), superseded by statute on other

grounds, as stated in 890 F. Supp. 764, 767 (W.D. Wis. 1995). The

circumstances of the extrinsic offense were therefore sufficiently

similar to those of the charged offense for Rule 404(b) purposes.

2.

Our conclusion that the extraneous-act evidence is probative

does not end our inquiry. We must balance the probative value of

this evidence with its prejudicial effect. See Fed. R. Evid. 403.

A review of the record satisfies us that the probity of this

evidence was not substantially outweighed by its undue prejudice.

Any potential undue prejudice was mitigated by the limiting

instructions given by the court to the jury.5 Cf. Beechum, 582

5
Before the Government submitted the evidence, the court
emphasized:

Members of the Jury, evidence of this nature can be
admitted for a very limited purpose. The limited
purpose for which this testimony is going to be
admitted is for you to consider it, if you wish, as
to whether or not the Defendant had the intent to
commit the acts alleged in the Indictment or when
you’re considering the identity of the person who
committed the acts alleged in the Indictment, but
only for those limited purposes.

After all testimony, the court reiterated:

During this trial, you have heard evidence of acts
of the Defendant which may be similar to those
charged in the Indictment, but which were committed
on other occasions. You must not consider any of
this evidence in deciding if the Defendant committed
the acts charged in the Indictment. However, you
may consider this evidence for other, very limited,
purposes.

If you find beyond a reasonable doubt from other
evidence in this case that the Defendant did commit
the acts charged in the Indictment, then you may

9
F.2d at 917 & n.23 (recognizing that cautionary instructions to

jury help palliate the prejudicial effect of extraneous-acts

evidence). The remaining considerations under Rule 403 do not

affect our conclusion; evidence of Bailey’s attack of Smalls was

unlikely to confuse the issues, mislead the jury, cause undue

delay, or waste time. The court did not abuse its discretion, and

the evidence was therefore properly admitted.

II.

Bailey next argues that there is insufficient evidence to

support his conviction for burglary on count 3. He maintains the

evidence does not establish that he entered Joshua’s residence with

intent to commit a felony--whether that felony is aggravated sexual

assault, sexual assault, sexual abuse, or theft--because he neither

sexually assaulted or abused Joshua nor stole anything. Because

Bailey failed to move for a judgment of acquittal, we review only

to determine whether there was a manifest miscarriage of justice.

See United States v. Laury, 49 F.3d 145, 151 (5th Cir.), cert.

denied, 116 S. Ct. 162 (1995). “Such a miscarriage of justice

would exist only if the record is devoid of evidence pointing to

consider the evidence of the similar acts allegedly
committed on other occasions to determine: 1)
whether the Defendant had the state of mind or
intent necessary to commit the crimes charged in the
Indictment; 2) whether the circumstances of this
uncharged act and the acts charged in the Indictment
were so distinctive and similar as to establish the
identity of the Defendant as the perpetrator of the
acts charged in the indictment.

These are the limited purposes for which any
evidence of other similar acts may be considered.

10
guilt, or . . . because the evidence on a key element of the

offense was so tenuous that a conviction would be shocking.” Id.

(internal quotation marks omitted) (citation omitted).

Although the evidence of intent to commit the named sex

offenses is not overwhelming, it is sufficient. The evidence

revealed that Joshua awoke to find Bailey exiting a bedroom closet

while wearing a ski mask. From the use of the mask alone, the jury

could have found that Bailey sought to hide his identity and that

therefore, his entry could not have been for innocent reasons.

That Bailey entered surreptitiously in the dark, wore a ski mask,

pulled on Joshua’s toe, wore no shirt, and hid in the bedroom

closet could have led a jury to believe that Bailey intended to

commit aggravated sexual assault, sexual assault, or aggravated

sexual abuse against Joshua.

Moreover, that Joshua’s closet had been “messed up” and that

books had been knocked out of their boxes could indicate to a jury

Bailey’s intent to commit theft. A non-consensual nighttime entry

raises a presumption of intent to commit theft. See Mauldin v.

State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982). Furthermore,

the actual commission of theft is not a prerequisite to the

commission of a burglary, see Gutierrez v. State, 666 S.W.2d 248,

250 (Tex. App.--Dallas 1984); Longoria v. State, 663 S.W.2d 649,

652 (Tex. App.--Corpus Christi 1983). It is therefore inapposite

that Joshua discovered nothing missing once she returned to her

residence. A conviction on these facts is not so shocking as to

render it a miscarriage of justice.

11
 III.

At trial, Bailey moved unsuccessfully to dismiss counts 3 and

4 of the indictment because of purported Speedy Trial Act

violations, 18 U.S.C. §§ 3161(b) and 3161(c)(1). Bailey now

challenges the district court’s refusal to dismiss these counts as

error. This Court reviews the facts supporting a Speedy Trial Act

decision for clear error and the legal conclusions de novo. See

United States v. Johnson, 29 F.3d 940, 942 (5th Cir. 1994).

On August 25, 1993, authorities arrested Bailey in connection

with their investigation into the Joshua incident. The next day,

the Government filed a misdemeanor information, charging Bailey

with (1) possession of stolen property, a handgun, valued at less

than $100, in violation of 18 U.S.C. § 662, and (2) entering a

military reservation for the purpose of committing an act

prohibited by law, in violation of 18 U.S.C. § 1382. On August 27,

1993, Bailey first appeared before the magistrate on the

misdemeanor charges. On November 3, 1994, the government dismissed

the misdemeanor information because two days earlier, it had filed

the felony indictment that forms the basis for the instant action.

A.

Bailey first maintains that 18 U.S.C. § 3161(b) requires the

dismissal of counts 3 and 4 of the indictment since he was not

charged within 30 days following his initial arrest on August 25,

1993. For the reasons below, we find this argument unavailing.

1.

This Court has adopted a narrow construction of the Act’s

12
dismissal sanction. See United States v. Giwa, 831 F.2d 538, 541-

43 (5th Cir. 1987). In Giwa, we held that the government’s failure

to indict a defendant within thirty days of his arrest on one

charge does not start the speedy trial clock as to other charges

subsequently filed. See id. at 542. “[T]he clear mandate of §

3162(a)(1) requires dismissal of only those charges contained in

the original complaint” or other original accusatory instrument.

Id. at 543; see also United States v. Napolitano, 761 F.2d 135, 137

(2d Cir. 1985). Guided by Giwa, we cannot hold in Bailey’s favor.

For purposes of the Speedy Trial Act, Bailey was arrested for two

misdemeanor counts and indicted for four entirely different

offenses, all felonies.6 That more than thirty days elapsed

between Bailey’s arrest on the misdemeanor counts and his

6
Bailey’s citation to United States v. Polomba, 31 F.3d 1456
(
9th Cir. 1994) is unavailing. In that case, the Government filed
three accusatory instruments. Id. at 1463. The original complaint
and the untimely superseding indictment each raised two mail fraud
counts charging violations of 18 U.S.C. § 1341. Id. The
instruments differed as to those counts only insofar as the
superseding indictment identified mailings, misrepresentations, and
fraudulent acts not specified in the original complaint. Id. The
court held that under these facts, the Speedy Trial Act mandates
dismissal of the mail fraud counts untimely raised in the
superseding indictment because such counts “repeated charges (i.e.,
counts alleging violation of a particular statute) stated in the
complaint over thirty days before, despite being based perhaps on
wholly or partially discrete offenses (i.e., acts in violation of
the same or different criminal statutes or laws) within the same
criminal scheme.” Id. at 1463.
Seizing upon this language, Bailey suggests his case presents a
factually analogous situation. We disagree. Admittedly, the
information and indictment in the instant action each charge a
violation of § 662. But unlike the situation in Polomba, each
charge in the instant action is different despite the shared
reference to § 662 because the information charges a misdemeanor
and the indictment charges a felony.

13
indictment on the felony charges does not implicate the dismissal

sanction under § 3162(a)(1).7

2.

This Court has recognized one exception to the general rule.

Where “a subsequent charge merely ‘gilds’ the initial charge filed

against an individual and the different accusatorial dates between

the two charges are not reasonably explicable,” this Court has held

that “the date of the initial arrest may trigger the applicable

time periods of the Act as to prosecution for both offenses.”

Giwa, 831 F.2d at 542 (citations omitted). Webster’s Third New

International Dictionary defines gilding as “embellishing.”

Webster’s Collegiate Dictionary defines it as “unnecessary

ornamentation.” See United States v. Oliver, 683 F. Supp. 35, 38

(E.D.N.Y. 1988) (citing Webster’s Collegiate Dictionary). Thus, a

gilded charge is one that merely annotates in more detail the same

charge alleged in the initial accusatory instrument--here, the

misdemeanor information. See, e.g., United States v. Bilotta, 645

F. Supp. 369, 371 (E.D.N.Y. 1986) (holding that addition of certain

factual allegations in superseding indictment did not change fact

that actual crime charged was same as that charged in original

7
Bailey maintains that because his initial arrest stemmed
from the Joshua burglary investigation and because the booking
sheet and military police report from his initial arrest both list
burglary as one of the charges, the burglary count made the subject
of count 3 of the indictment must be dismissed pursuant to §
3161(b). We disagree. A defendant is not “arrested” for purpose
of the Speedy Trial Act until formal charges are filed. See United
States v. Sanchez, 722 F.2d 1501, 1509 (11th Cir. 1984). That the
burglary charge is listed on the military police report and the
booking sheet, therefore, does not mean that the speedy trial clock
had been implicated.

14
complaint and therefore subject to dismissal), cited in Oliver, 683

F. Supp. at 39.

This view comports with Supreme Court precedent analyzing

multiple prosecutions. See United States v. Dixon, 509 U.S. 688,

696 (1993) (evaluating multiple prosecutions under principles of

double jeopardy). The Court views different charges as the same if

they are composed of the same elements. This “same-elements test,

sometimes referred to as the ‘Blockburger’ test, inquires whether

each offense contains an element not contained in the other; if

not, they are the ‘same offense’ and double jeopardy bars

additional punishment and successive prosecution.” Id.

Bailey’s strongest claim under § 3161(b) is his allegation

that count 4 of the indictment merely gilds count 1 of the

information because the charges alleged in each differ only as to

the valuation of the firearm, a difference Bailey contends is

insignificant for purposes of the Speedy Trial Act. Although this

Court has never addressed this precise question, it has explained

that “where an offense that is otherwise a misdemeanor becomes a

felony if committed in a certain way or with certain consequences,

the particular attribute that makes it a felony is an element of

the offense, which must be alleged in the indictment and proved at

trial.” United States v. Deisch, 20 F.3d 139, 147 (5th Cir. 1994).

Citing its application of this rule to 18 U.S.C. § 659 (theft of

shipments in commerce) and § 641 (theft of property of the United

States), in each of which the offense is a misdemeanor if the value

of the stolen property does not exceed $100, and is otherwise a

15
felony, this Court noted in Deisch that “a value of $100 or more is

an element of the felony that must be alleged and proved.” Id.

(citations omitted). Taking guidance from Dixon and Deisch, we

hold that count 4 of the indictment does not gild count 1 of the

misdemeanor information because the misdemeanor count and the

felony count each contains different elements, viz., the valuation

of the weapon.

That both charges involve the same handgun discovered during

the same investigation of the same criminal act does not compel the

opposite conclusion. Legislative history reveals that “Congress

considered and rejected [the] suggestion that the Act’s dismissal

sanction be applied to subsequent charges if they arise from the

same criminal episode as those specified in the original complaint

or were known or reasonably should have been known at the time of

the complaint.” Napolitano, 761 F.2d at 137; accord United States

v. Hausman, 894 F.2d 686, 688 (5th Cir. 1990) (“Whether the

conviction arose from the same conduct as charged in the arrest

warrant and complaint is immaterial.” (citation omitted)). The

charges in the information and counts 3 and 4 of the indictment are

distinct for Speedy Trial Act purposes and therefore dismissal is

unwarranted.

B.

Bailey next maintains that count 4 of the indictment should

have been dismissed because his trial was not held within 70 days

of his initial appearance before a magistrate judge. Section

3161(c) requires an individual to be tried within 70 days of the

16
“filing date (and making public) of the information or indictment,

or from the date the defendant has appeared before a judicial

officer of the court in which such charge is pending, whichever

date occurs last.” 18 U.S.C. § 3161(c)(1). Bailey argues that his

first appearance before a judicial officer on August 27, 1993,

triggered the speedy trial clock. The Government counters that the

speedy trial clock did not begin to run until November 1, 1994,

when Bailey’s previously sealed indictment was made public upon his

arrest. We agree.

The August appearance was related to Bailey’s misdemeanor

information and not to his felony indictment, which forms the

subject of the instant action. As we have already discussed, the

charges alleged in the indictment are distinct from those in the

earlier misdemeanor information for purposes of the Speedy Trial

Act. The 70-day time bar therefore did not begin to run until

November 1, 1994, the date upon which Bailey’s indictment was

unsealed. We conclude that Bailey’s trial was well within the

statutory period.8

IV.

Bailey further claims the district court’s refusal to instruct

the jury on criminal trespass as a lesser included offense of

burglary was error. Count three of the indictment charges Bailey

8
Actually, ninety-seven days had elapsed between the time the
indictment was unsealed (November 1, 1994) and the date the trial
began (February 7, 1995). Many of these delays, however, were
excludable for speedy-trial purposes under 18 U.S.C. § 3161(h).
See United States v. Johnson, 29 F.3d 940, 942-43 (5th Cir. 1994);
United States v. Ortega-Mena, 949 F.2d 156, 158-89 (5th Cir. 1991).

17
with violation of Texas law under the Assimilative Crimes Act, 18

U.S.C. § 13, which was intended “to provide a set of criminal laws

for federal enclaves by the use of the penal law of the local state

‘to fill the gaps in federal criminal law.’” United States v.

Brown, 608 F.2d 551, 553 (5th Cir. 1979) (citation omitted).

Without deciding whether a lesser included offense instruction

should be defined in this case by federal or state law, we hold

that under either test, the instruction requested by Bailey at

trial is unwarranted.

A defendant is entitled to a lesser included offense

instruction under federal law when (1) the elements of the lesser

offense constitute a subset of the elements of the charged offense,

see Schmuck v. United States, 489 U.S. 705, 716 (1989)

(interpreting Fed. R. Crim. P. 31(c)); United States v. Krout, 66

F.3d 1420, 1431 (5th Cir. 1995); cert. denied, 116 S. Ct. 963

(1996), and (2) the evidence at trial is sufficient to allow a

reasonable jury to find the defendant guilty of the lesser offense,

yet to acquit him of the greater, see Keeble v. United States, 412

U.S. 205, 208 (1973), cited in Schmuck, 489 U.S. at 716 n.8.

Texas employs a different test to determine the necessity of

a lesser included offense instruction: (1) proof of the lesser

offense must be included within the proof necessary to establish

the offense charged; and (2) there must be some evidence in the

record that if the defendant is guilty, he is guilty of only the

lesser offense. See White v. State, 698 S.W.2d 494, 495 (Tex.

App.--Corpus Christi 1985); Daniels, 633 S.W.2d 899, 901 (Tex.

18
Crim. App. [panel op.] 1982).

The elements of the offense of criminal trespass, Tex. Penal

Code § 30.05, are: (1) a person (2) without effective consent

(3) enters or remains on the property or in a building of another

(4) knowingly or intentionally or recklessly (5) when he had

notice that the entry was forbidden or received notice to depart

but failed to do so. See Daniels v. State, 633 S.W.2d at 901

(citation omitted). The elements of the offense of burglary, Tex.

Penal Code § 30.02, are: (1) a person (2) without the effective

consent of the owner (3) enters a habitation or a building not

then open to the public or remains concealed (4) with the intent

to commit a felony or theft. See Day v. State, 532 S.W.2d 302, 304

(Tex. Crim. App. 1975).

While the first prong of the federal and Texas tests are

different, the second prong of the two tests are substantially the

same: Unless the evidence permits a jury to conclude that the

defendant is guilty of the lesser offense and innocent of the

greater offense, the lesser offense instruction need not be given.

A defendant’s testimony alone is sufficient to raise an issue on

the second prong. For Bailey to prevail, therefore, he must show

that the evidence permits a reasonable jury to find that he entered

Joshua’s home without the intent to commit aggravated sexual

assault, sexual assault, aggravated sexual abuse, or theft as

charged in count 3.

We are not persuaded that the record permits a finding that if

Bailey is guilty of any crime, he is guilty of only the lesser

19
offense. Bailey presented no evidence concerning his mental state

at the time he entered Joshua’s residence, and he did not testify

at trial. The jury was also entitled to rely on the Rule 404(b)

evidence of Bailey's earlier similar acts of burglary and sexual

assault as evidence of his intent to assault Joshua. Moreover,

Bailey's statement to the military police regarding the Joshua

incident, admitted into evidence, was hardly exculpatory of a

criminal intent. In that statement, Bailey claimed he did not know

why he had entered Joshua’s home. This evidence, which is the only

evidence Bailey offers for his position, is not enough to show that

if Bailey is guilty, he is guilty only of the lesser offense of

criminal trespass.

Under these facts, we cannot hold that the evidence raises the

issue of the lesser included offense of criminal trespass.

The district court’s refusal to so instruct was therefore not

in error.

CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

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