COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00533-CR
Rachel Smith § From the 362nd District Court
§ of Denton County (F-2011-0398-D)
v. § December 6, 2012
§ Opinion by Justice Walker
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court‘s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Sue Walker
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00533-CR
RACHEL SMITH APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Rachel Smith appeals her conviction for burglary of a habitation.
In two points, Smith argues that the trial court erred by refusing to charge the jury
on the lesser-included offense of criminal trespass and by submitting a deadly-
weapon issue to the jury. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
1
See Tex. R. App. P. 47.4.
2
The Paramo family lived in a one-bedroom apartment in Lewisville, Texas.
Around 3:00 a.m., while Oscar Paramo Sr. (Senior), his wife Maribel, and his two
young daughters were asleep in the living room of the apartment, Senior awoke
to the sound of a cell phone vibrating. He noticed a person, later identified as
Smith, crouching in the corner. Senior grabbed Smith, and the two struggled.
Senior‘s wife and daughters woke up and started screaming. Senior‘s son,
Oscar Paramo Jr. (Junior), was asleep in the bedroom and awoke to the
screaming. When he went into the living room, Smith pulled a gun from the
waistband of her pants, pointed it at Junior, and said, ―I want to kill you.‖ Smith
pulled the trigger, Junior heard a ―click,‖ but the gun did not fire. Junior and
Senior took the gun from Smith, and Junior hid it under some clothes in the
bedroom. When Junior told his mom to call the police, Smith threatened that her
friend would harm them if they called the police. She also took a ―large
switchblade knife‖ out of her pocket. The Paramos called 9-1-1 and held Smith
down until police arrived.
Lewisville Police Officer Jonathan Wolk arrived and saw Senior and Junior
holding down Smith. Smith told the officer, ―Thank god you‘re here. They
assaulted me.‖ Officer Wolk took Smith into the hallway, where another officer
searched Smith for weapons and found Senior‘s wallet in Smith‘s back pocket.
Officer Wolk returned to the Paramos‘ apartment, and Junior led him to the gun
under the pile of clothes in the bedroom. Junior and Senior were both visibly
shaken. Officer Wolk talked to Junior separately outside; Junior explained that
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he hid the gun under some clothes in the bedroom so that it would be hard for
Smith to find in case she ―got loose.‖ Officer Wolk also recovered a knife from
the living room floor in the Paramos‘ apartment; Senior told the officer that the
knife fell out of Smith‘s pocket.
Smith told the officers that she had been knocking on apartment doors
looking for her co-worker who lived in the apartment building when she heard
some yelling in Spanish. Smith said that when she knocked on the door,
someone pulled her into the Paramos‘ apartment and pointed a gun at her. She
said that she wrestled the gun away from the men and that the men planted the
wallet on her. Smith pointed out two vehicles in the apartment parking lot as
belonging to her co-worker; however, a check of both vehicles‘ license plate
numbers revealed that they did not belong to who Smith said they did.
Smith was indicted for burglary of a habitation; the indictment alleged that
she intentionally or knowingly entered the Paramos‘ residence without the
owner‘s effective consent and attempted to commit or committed the felony
offense of aggravated assault.2 At trial, Smith‘s uncle testified that he is close to
Smith, that he has never seen her with a gun, and that he had never seen the
gun recovered from the Paramos‘ apartment. Smith‘s uncle also testified that he
did not live with Smith and did not know her age.
2
See Tex. Penal Code Ann. § 30.02(a)(3) (West 2011).
4
The jury found Smith guilty of burglary of habitation and, after a
punishment trial, assessed her punishment at nineteen years‘ imprisonment.
The trial court sentenced her accordingly.
III. LESSER-INCLUDED OFFENSE INSTRUCTION
In her first point, Smith argues that she was entitled to a lesser-included
offense instruction on criminal trespass because there was some evidence that
she did not use or exhibit a deadly weapon.
We use a two-step analysis to determine whether an appellant was entitled
to a lesser-included offense instruction. Hall v. State, 225 S.W.3d 524, 528 (Tex.
Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666, 672B73 (Tex. Crim.
App.), cert. denied, 510 U.S. 919 (1993). First, the lesser offense must come
within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.
Ann. art. 37.09 (West 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App.
1998). An offense is a lesser-included offense of another offense, under article
37.09(1), if the indictment for the greater-inclusive offense either: (1) alleges all
of the elements of the lesser-included offense, or (2) alleges elements plus facts
(including descriptive averments, such as non-statutory manner and means, that
are alleged for purposes of providing notice) from which all of the elements of the
lesser-included offense may be deduced. Ex parte Watson, 306 S.W.3d 259,
273 (Tex. Crim. App. 2009) (op. on reh=g).
Under the second step, some evidence must exist in the record that would
permit a jury to rationally find that if the appellant is guilty, she is guilty only of the
5
lesser offense. Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741
(Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672B73. The evidence must
be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There
must be some evidence from which a rational jury could acquit the appellant of
the greater offense while convicting her of the lesser-included offense. Id. The
court may not consider whether the evidence is credible, controverted, or in
conflict with other evidence. Id. Anything more than a scintilla of evidence may
be sufficient to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536.
A person commits criminal trespass if the person enters property of
another without effective consent and had notice that entry was forbidden. Tex.
Penal Code Ann. § 30.05(a) (West Supp. 2012). A person commits burglary if,
without the effective consent of the owner, the person enters a habitation and
commits or attempts to commit the felony offense of aggravated assault. Id. §
30.02(a)(3); see also id. § 22.02(a) (West 2011) (defining aggravated assault as
assault either causing serious bodily injury or with the use or exhibition of a
deadly weapon). The State agrees that, under the first step of the analysis,
criminal trespass is a lesser-included offense of burglary of a habitation as
alleged in the indictment. See Hall, 225 S.W.3d at 528; see also Salazar v.
State, 284 S.W.3d 874, 880 (Tex. Crim. App. 2009) (holding criminal trespass‘s
notice-that-entry-was-forbidden element was implicit in burglary of habitation
because a habitation implicitly gives notice that entry is forbidden).
6
We will turn our attention to the second prong and determine whether there
was some evidence presented from which the jury could rationally determine that
Smith was guilty of criminal trespass but not guilty of burglary of a habitation.
See Hall, 225 S.W.3d at 536. Smith points to her statement to Officer Wolk—that
someone pulled her into the apartment and pointed a gun at her—as evidence
entitling her to an instruction on criminal trespass. But her statement is some
evidence that she did not commit criminal trespass or burglary—it is evidence
that she committed no offense. A charge on the lesser-included offense is not
required when the defendant presents no evidence or presents evidence that no
offense was committed and there is no evidence otherwise showing that the
defendant is guilty of a lesser-included offense. Lofton v. State, 45 S.W.3d 649,
652 (Tex. Crim. App. 2001); see, e.g., Holiday v. State, 14 S.W.3d 784, 788 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref‘d) (holding appellant not entitled to
lesser-included offense instruction when his version of the facts indicated that he
was not guilty of any offense), cert. denied, 532 U.S. 960 (2001). Smith also
points to the following as entitling her to the criminal-trespass instruction: on
cross-examination, Officer Wolk ―admitted‖ that the only evidence that the gun
belonged to Smith came from the statements of Junior and Senior; the gun was
never tested for fingerprints; and Smith‘s uncle had never seen her with a gun.
But this ―evidence‖—or lack of additional evidence linking Smith to the gun—as
well as the remaining evidence in the record, is not more than a scintilla of
evidence to support a lesser-included offense instruction on criminal trespass.
7
See Hall, 225 S.W.3d at 536; see also Sweed v. State, 351 S.W.3d 63, 68 (Tex.
Crim. App. 2011) (―[T]here must be some evidence directly germane to the
lesser-included offense for the finder of fact to consider before an instruction on a
lesser-included offense is warranted.‖). We overrule Smith‘s first point.
IV. NOTICE OF INTENT TO SEEK DEADLY-WEAPON FINDING
In her second point, Smith argues that the trial court erred by submitting
the deadly-weapon issue to the jury because the State did not give her adequate
notice of its intent to seek a deadly-weapon finding.
A defendant is entitled to written notice that the State will seek an
affirmative finding that a deadly weapon was used or exhibited during the
commission of the charged offense. Brooks v. State, 847 S.W.2d 247, 248 (Tex.
Crim. App. 1993). The notice requirement is firmly rooted in fundamental
precepts of due process and due course of law. Ex parte Patterson, 740 S.W.2d
766, 775 (Tex. Crim. App. 1987), overruled on other grounds by Ex parte Beck,
769 S.W.2d 525, 528 (Tex. Crim. App. 1989). The notice need not be contained
in the indictment, but it must be in writing. Id. ―The defendant is simply ‗entitled
to notice in some form that the use of a deadly weapon will be a fact issue at the
time of prosecution.‘‖ Id. (quoting Beck, 769 S.W.2d at 526).
Texas law does not specifically define the time period that constitutes
timely notice, but in Villescas v. State, the court of criminal appeals held that the
right to notice of the State‘s intent to use prior convictions as enhancements—
similar to notice given for deadly-weapon allegations—is constitutionally based
8
and that due process does not require that notice of prior convictions be given
before the trial on guilt begins. See 189 S.W.3d 290, 293–94 (Tex. Crim. App.
2006) (stating that requiring notice to come before the trial on guilt ignores the
possibility that the trial court could take measures to cure the notice problem by
granting a continuance); see also Johnson v. State, 815 S.W.2d 707, 715 (Tex.
Crim. App. 1991) (Overstreet, J., concurring) (suggesting that notice is adequate
if given any time prior to trial). The adequacy of the State‘s notice of its intent to
seek a deadly weapon finding depends largely on the specific facts of a given
case. Hocutt v. State, 927 S.W.2d 201, 203 (Tex. App.—Fort Worth 1996, pet.
ref‘d).
Here, Smith was indicted for burglary of a habitation on February 24, 2011.
The indictment did not allege that she used or exhibited a deadly weapon. The
State filed notice of its intention to seek a deadly-weapon finding at 11:27 a.m. on
the first day of trial, November 14, 2011; voir dire began approximately two hours
later.
Smith claims on appeal that the timing of the State‘s notice violated her
right to due course of law under the Texas constitution, see Tex. Const. art 1,
§ 15, but this claim is weakened by the fact that she did not object to the timing of
the notice, request a continuance, or otherwise claim that she was surprised or
prejudiced by the timing of the notice.3 See Byrd v. State, No. 02-07-00167-CR,
3
The State argues that Smith failed to preserve her complaint for appeal by
her ―complete inactivity,‖ but we will assume preservation for purposes of this
9
2008 WL 4053000, at *4 (Tex. App.—Fort Worth Aug. 29, 2008, pet. ref‘d) (not
designated for publication) (―Byrd‘s due process claim is also weakened by his
failure to ask for a continuance to relieve any surprise or prejudice.‖); Nolasco v.
State, 970 S.W.2d 194, 197 (Tex. App.—Dallas 1998, no pet.) (holding
appellant‘s failure to request continuance or otherwise claim surprise or prejudice
when notice received a few hours before trial began ―defeat[ed] any due process
claim he might have‖); see also Whatley v. State, 946 S.W.2d 73, 75 (Tex. Crim.
App. 1997) (holding that no fundamental unfairness resulted in State‘s failing to
specify the type of weapon when appellant received notice and did not request
additional specificity).
Moreover, Smith did receive notice prior to trial; this is not a case in which
the defendant learned of the State‘s intent to seek a deadly weapon finding ―only
after all the evidence was in, both sides had closed, and the charge was read to
the jury.‖ See Byrd, 2008 WL 4053000, at *4; cf. Patterson, 740 S.W.2d at 777.
And, as the State points out, although the indictment did not include a deadly
weapon allegation, it did allege that Smith committed or attempted to commit
opinion and will address the merits of Smith‘s complaint. See Tellez v. State,
170 S.W.3d 158, 162–63 (Tex. App.—San Antonio 2005, no pet.) (reasoning that
right to written notice of the State‘s intent to seek a deadly weapon finding is
―waivable only;‖ rights that are ―waivable only‖ cannot be forfeited and they are
not extinguished by inaction alone); see also Blount v. State, 201 S.W.3d 170,
174 (Tex. App.—Houston [14th Dist.] 2006) (analyzing case law on preservation
of notice complaint and noting that court of criminal appeals focuses on
adequacy of State‘s notice, rather than adequacy of defendant‘s objection), rev’d
on other grounds, 257 S.W.3d 712 (Tex. Crim. App. 2008).
10
aggravated assault inside the Paramos‘ residence. Aggravated assault requires
either serious bodily injury or the use or exhibition of a deadly weapon. Tex.
Penal Code Ann. § 22.02(a). Smith would have known that no one suffered a
serious injury at the time of the offense and also knew a firearm was involved in
the event based on her statements to police; she was not blindsided by the
State‘s notice the day of trial. Cf. Patterson, 740 S.W.2d at 777 (explaining that
defendant had no prior indication that the nature of the weapon used was to be a
particular issue in the case and was blindsided at trial).
Given the facts of this case, including that Smith never asked for a
continuance or otherwise claimed surprise or prejudice, we hold that the State‘s
notice of its intent to seek a deadly-weapon finding filed hours before voir dire
began was timely and did not violate Smith‘s right to due course of law under the
Texas constitution. See Tex. Const. art. 9, § 19; Byrd, 2008 WL 4053000, at *4;
Nolasco, 970 S.W.2d at 197. We overrule her second point.
V. CONCLUSION
Having overruled Smith‘s two points, we affirm the trial court‘s judgment.
SUE WALKER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 6, 2012
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