(dissenting).
Appellant testified and admitted that he entered the building without consent and committed theft. The trial court instructed the jury on the law of burglary but refused to submit either one of the appellant’s two requested instructions on the law of criminal trespass. The offense of burglary, contained in Section 30.02, Y.T.C.A., Penal Code, provides, in part, as follows:
“(a) A person commits an offense if, without the effective consent of the owner, he:
“(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or
“(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or
*309“(3) enters a building or habitation and commits or attempts to commit a felony or theft.”
The offense of criminal trespass, contained in Section 30.05, V.T.C.A., Penal Code, is as follows:
“(a) A person commits an offense if he enters or remains on property or in a building of another without effective consent and he:
“(1) had notice that the entry was forbidden; or
“(2) received notice to depart but failed to do so.
“(b) For purposes of this section:
“(a) ‘entry’ means the intrusion of the entire body; and “(2) ‘notice’ means:
“(A) oral or written communication by the owner or someone with apparent authority to act for the owner;
“(B) fencing or other enclosure obviously designed to exclude intruders; or
“(C) signs posted to be reasonably likely to come to the attention of intruders.
“(c) An offense under this section is a Class C misdemeanor unless it is committed in a habitation, in which event it is a Class A misdemeanor.”
In McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974), this Court held that
. .a charge on the lesser [included offense] is not required unless there is testimony raising such issue that the appellant, if guilty, is guilty only of the lesser offense.”
The McBrayer opinion takes the statement from 4 Branch’s Ann.P.C.2d, Section 1889, page 219. It is or was a good rule.
Appellant by his own testimony shows him to be guilty of burglary under Section 30.02(a)(3), supra. He entered the building without the consent of the owner and while there committed theft by taking the letter opener, putting it in his pocket and trying to sell or give it away. His testimony did not show that he was guilty only of a lesser included offense. It is not necessary to decide if criminal trespass is a lesser included offense of the offense of burglary under the facts of this case.
The court did not err in refusing to give the requested instructions.
Assuming that the charge should have been given, if there was ever harmless error in a court’s charge, it is in this case. The Legislature no doubt had instances such as this in mind when it passed the predecessors of and Article 36.19, Y.A.C.C.P., which provides that a judgment shall not be reversed for an error in the court’s charge “unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. . . .”
In this ease the appellant testified to an unbelievable and fantastic story. He admitted on direct examination that he had been convicted for the offense of grand larceny in Oklahoma and had been out on parole for only three months prior to being caught in the burglarized building at approximately three o’clock in the morning. He had in his pocket a Japanese knife or letter opener that had been taken from the desk of the manager of the cafeteria. He attempted to sell the knife to one of the officers. His explanation was that he entered the building at three o’clock in the morning to call the police after he had seen a man running from the building. His testimony was that he entered the building to make the call because he was walking and was some five or six blocks from his motel and he did not want to wait that long. This testimony was from a man who was on parole for a crime involving theft.
The majority reverses because the court did not instruct the jury in effect that if appellant entered the building with no intent to steal they could find him guilty of the misdemeanor offense of criminal trespass. He admitted stealing the knife “by reflex action” and trying to sell it.
The majority should apply (or at least discuss) the mandate of the Legislature and *310not reverse for a harmless error in the court’s charge. Would the jury have reached a different result had the charge been given? This is the question. The explanation by appellant is unbelievable. It is submitted that no reasonable jury would have reached a different result had the requested charge been given.
Would the majority reverse if the appellant had testified that he went through the window in a landing from a space craft? Probably so, based on its opinion in this case, because there would be evidence raising the issue.
See the dissenting opinions in Thompson v. State, 521 S.W.2d 621 (Tex.Cr.App.1975). The charge was assault with intent to murder a police officer. The officer testified that Thompson shot at him four times. Thompson testified that his gun accidentally discharged four times. That case was reversed because the trial court did not charge on aggravated assault.
The judgment should be affirmed.
MORRISON, J., joins in this dissent.