NO. 07-07-0432-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MAY 28, 2008
______________________________
JOE CHRISTIAN SALAZAR,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;
NO. 55,146-C; HON. ANA ESTEVEZ, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Joe Christian Salazar appeals his conviction for burglary of a building. His sole
issue concerns the trial court’s decision denying his request for an instruction on the
offense of criminal trespass. The latter allegedly was a lesser-included offense of the
crime for which he was indicted. We disagree and affirm the judgment.
Law
With the advent of Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), the
methodology used in determining whether an accused is entitled to an instruction on a
lesser-included offense has changed. The test still consists of two elements, and the latter
still focuses on whether “evidence [appears of record] that supports giving the instruction
to the jury.” Id. at 536. The former element differs, however. Now we are to compare “the
elements of the offense as they are alleged in the indictment or information with the
elements of the potential lesser-included offense.” Id. at 535-36. In doing so, “we do not
consider the evidence that was presented at trial.” Id. at 536. Instead, “we consider only
the statutory elements [of the crimes charged] as they were modified by the particular
allegations in the indictment . . . .” Id. Then, we ask whether “the elements of the lesser
offense [are] ‘established by the proof of the same or less than all the facts required to
[establish] the commission of the offense charged.’” Id. (quoting TEX . CODE CRIM . PROC .
ANN . art. 37.09 (Vernon 2006)). If they are not, then a trial court acts properly in
withholding the instruction. Id. at 536-37.
Application of Law
Here, appellant was indicted for burglary of a habitation. Furthermore, through the
indictment, the State alleged that he “intentionally or knowingly entered a habitation,
without the effective consent of Linda Pohlmeier, the owner of the habitation, and
attempted to commit or committed theft of property.” Missing from this allegation is any
statutory or factual allegation concerning whether appellant knew that the entry was
forbidden or received notice to depart but did not. This is of import for one or the other is
a prerequisite to conviction for criminal trespass. TEX . PEN . CODE ANN . §30.05(a)(1) & (2)
(Vernon Supp. 2007) (defining criminal trespass as entering or remaining on or in property
of another without effective consent or entering or remaining in a building of another
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without effective consent and having notice that the entry was forbidden or receiving notice
to depart but failing to do so).
That the indictment before us may have alluded to the absence of the owner’s
“effective consent” is of no import in this instance. This is so for several reasons. First, the
crime of criminal trespass requires both the absence of effective consent and either notice
that entry was forbidden or that one’s presence is no longer welcomed. Id. To equate the
two, as appellant suggests at bar, is to effectively nullify a portion of the penal statute, and
that we will not do. Second, while it may be that someone is not welcomed onto property,
that does not necessarily mean that he knew of that fact. Not only can sentiment be
hidden but also changed. So, not until the accused becomes aware of the owner’s
sentiment and then acts or refuses to act does he commit criminal trespass.
In sum, the elements or facts necessary to convict one of criminal trespass were
missing from the charge of burglary as modified by the indictment at bar. Consequently,
the former was not a lesser-included offense of the latter, and the trial court did not err in
refusing to treat it as one.1
We overrule the issue and affirm the judgment.
Brian Quinn
Chief Justice
Publish.
1
W e recognize that in Day v. State, 532 S.W .2d 302 (Tex. Crim . App. 1975), the Court of Crim inal
Appeals found crim inal trespass to be a lesser-included offense of burglary with intent to com m it theft.
However, in Hall, the Court overruled Day to the extent that it conflicts with Hall.
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