ACCEPTED
06-14-00102-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/5/2015 10:08:58 AM
DEBBIE AUTREY
CLERK
No. 14-00102-CR
FILED IN
______________________________________________________________________________
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE SIXTH COURT OF APPEALS 4/6/2015 9:26:00 AM
TEXARKANA, TEXAS DEBBIE AUTREY
Clerk
______________________________________________________________________________
TYRELL SMITH
Appellant,
v.
THE STATE OF TEXAS
Appellee.
______________________________________________________________________________
Appealed from the 71st District Court of
Harrison County, Texas
Trial Cause No. 12-0351X
______________________________________________________________________________
APPELLEE’S BRIEF
______________________________________________________________________________
Timothy J. Cariker
Assistant District Attorney
State Bar No. 24009942
Harrison County District Attorney’s Office
200 West Houston Street
Marshall, Texas 75670
Telephone: 903-935-8408
ATTORNEY FOR APPELLEE
STATE OF TEXAS
IDENTITY OF PARTIES AND COUNSEL
Appellant certifies that the following is a complete list of all parties to the trial court’s
judgment and the names and addresses of their trial and appellate counsel.
1. Presiding Judge: Honorable Brad Morin
71st Judicial District
Marshall, Texas 75670
2. Appellant: Tyrell Smith
3. Appellant’s Counsel (at trial): Rick Hulburt
Attorney at Law
222 N. Fredonia
Longview, Texas 75601
4. Appellant’s Counsel (on appeal) Scott Rectenwald
Attorney at Law
110 W. Fanin Street
Marshall, Texas 75670
5. State’s Counsel (at trial): Shawn Eric Connally
Tommy Jackson
Assistant District Attorneys
Harrison County District Attorney
200 West Houston Street
Marshall, Texas 75670
6. State’s Counsel (on appeal): Timothy J. Cariker
Assistant District Attorney
Coke Solomon
District Attorney
Harrison County District Attorney
200 West Houston Street
Marshall, Texas 75670
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TABLE OF CONTENTS
Identity of Parties and Counsel ........................................................................................................i
Table of Contents ............................................................................................................................ii
Index of Authorities ........................................................................................................................1
Issues Presented…………………………………………………………………………………….2
I. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT
DECLINED TO INCLUDE THE OFFENSE OF CRIMINAL TRESSPASS IN
APPELLANT’S JURY CHARGE
Statement of the Case .....................................................................................................................3
Statement of Facts...........................................................................................................................4
Summary of Argument.....................................................................................................................6
Argument and Authorities
I. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT
DECLINED TO INCLUDE THE OFFENSE OF CRIMINAL TRESSPASS IN
APPELLANT’S JURY CHARGE
A. Overview…………………………………………………………………..7
B. Theory for Request at Trial…………………………………………..…….7
C. Theory for Request on Appeal………………………………………………8
Prayer for Relief.............................................................................................................................10
Certificate of Compliance………………………………………………………………..………10
Certificate of Service.....................................................................................................................11
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INDEX OF AUTHORITIES
Texas Court of Criminal Appeals
Aguilar v. State, 682 S.W. 2d 556 (Tex. Crim. App. 1985)…………………………………8, 9
Day v. State, 532 S.W. 2d 302, (Tex. Crim. App. 1976)………………………………………..8
Goad v. State, 334 S.W. 3d 443 (Tex. Crim. App. 2011)……………………………………….8
Mitchell v. State, 807 S.W. 2d 740 (Tex. Crim. App. 1991)……………………………………8
State v. Meru, 414 S.W. 3d 159 (Tex. Crim. App. 2013)……………………………………….9
Texas Court of Appeals
Black v. State, 183 S.W. 3d 925 (Tex. App. [14th Dist.] 2006, pet ref’d)…………………….7, 8
Johnson v. State, 665 S.W. 2d 554 (Tex. App. – Houston [1st Dist.] 1984, no pet.)…………7, 8
1
ISSUES PRESENTED
I. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT
DECLINED TO INCLUDE THE OFFENSE OF CRIMINAL TRESSPASS IN
APPELLANT’S JURY CHARGE
2
STATEMENT OF THE CASE
The Appellant was charged by indictment with the offense of Burglary of a Building. (CR2). Prior
to voir dire the Appellant elected to proceed pro se and counsel was appointed to act as ‘shadow
counsel’. (RR 2-20). On January 7, 2014 testimony commenced, but the Appellant was not present
and shadow counsel assumed the role of trial counsel. (RR 3-9). At the conclusion of the trial the
Appellant was found guilty. (RR 3-268). The jury assessed punishment at 24 months incarceration
in the State Jail Division of the Texas Department of Criminal Justice, and the assessed a $10,000.00
fine. (RR 3-186).
3
STATEMENT OF FACTS
Philip Allen testified that in the early afternoon of June 9th, his son noticed a reflection of light on
the storm door of the little rental cottage that they owned near their home. (RR 3 22-23). No one
had been over to the cottage in several days, and the cottage was usually closed up. He walked
about 125yards from his home to the cottage to investigate. (RR 3, 24). He attempted to call
911, but the call did not go through, so he then called his father-in-law and let him know that he
suspected somebody was down their road. Id.
Mr. Allen then noticed a gold or bronze Buick Road Master parked about 100 yards away, and he
made another attempt to call 911, finally getting through, and giving the dispatcher the license plate
number of the car. (RR 3, 25). While on the phone with the dispatcher, Mr. Allen saw a person walk
out if the woods to the Buick (State’s Exhibit 1 and RR 3, 28), which he later identified as the
Appellant. (RR, 3 29, State’s Exhibit 3). Appellant exited the woods along the pipeline right of way
(RR 3. 46), not more than ten yards from the Buick (RR 3, 47). The trunk of the Buick was closed
(RR 3, 46). He attempted to make contact with the Appellant, but te Appellant sped off. (RR 3, 29).
Allen’s father in law attempted to bock the Buick on their road, but was unsuccessful. (RR 3, 31).
An air conditioning unit, a mitre saw and a camp stove that had previously been in the cottage were
lying in the front yard. (RR 3, 27). The items were located on the north side of the house (RR 3,
38), and because it had been several days since they had been to work on the house, Mr. Allen could
not positively say that the items had been left in the yard on that particular day. (RR 3, 39). He did
state that he did not believe the items were removed before the day of the incident and that they were
removed that day. (RR 3, 53). Additionally, the front door to the cottage was left unlocked, and
when Mr. Allen approached the house, he did not see anybody in the house. (RR 3, 38). Mr. Allen
4
could see the only two doors to the house as he approached it (RR 3, 39-40) and never saw anybody
running from the house (RR 3, 48).
Don Dowdell, Mr. Allen’s father in law, only saw the Appellant as he left the location. When he
received a call from his son in law, he parked near Highway 59 and Loden Road, and observed the
parked gold/bronze Buick. (RR 3, 59). He observed a man coming out of the woods, getting into the
Buick and speeding off. Id. Mr. Dowdell attempted to block the person to detain him until law
enforcement arrived. (RR 3, 60). The Appellant sped off by him at a high rate of speed and went
north in the south bound lanes of the highway. (RR 3, 59). Mr. Dowdell late identified the
Appellant as the person in question from a police lineup. (RR 3, 61, State’s Exhibit 4). As he
observed the Appellant walking to the vehicle, the Appellant appeared to be alone, not carrying any
tools, the Appellant did not appear to be sweaty or carrying any tools. (RR 3, 70-71).
No useable fingerprints were found in items at the cottage (RR 3, 80), and no footprints were noted
around the cottage. (RR 3, 109). Furthermore, no open windows were noted at the cottage. (RR 3,
105-107). However, the license plate number that Phillip Allen provided to police turned out to be a
dealer’s tag from GT & Sons Auto. (RR 3, 80), and GT personnel advised that the vehicle had been
sold to the Appellant. (RR 3, 81).
During the charge conference, trial counsel requested that an instruction on the lesser included
offense of criminal trespass be included in the charge. (RR 3, 145-146). The request was denied.
(RR 3, 146).
5
SUMMARY OF ARGUMENT
Having been convicted of burglary of a building, Appellant’s sole complaint on appeal is that the
trial court erred in denying his request that a criminal trespass instruction should have been included
in the jury charge. At trial the request was based on the argument that if he was guilty of anything it
was trespassing on the land surrounding the building. Prior decisions of other Courts do not support
this position.
On appeal the Appellant expands his argument and argues that it should have been included because
the evidence shows that if he was guilty of anything it was trespassing to the building. This
argument is flawed for two reasons. First, there is no evidence to support it, and second, the Court of
Criminal Appeals has issued a recent decision holding that criminal trespass is not a lesser included
offense to burglary.
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ISSUE NUMBER ONE
I. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT
DECLINED TO INCLUDE THE OFFENSE OF CRIMINAL TRESSPASS IN
APPELLANT’S JURY CHARGE
A.) Overview
In an effort to aid the reader and promote brevity, Appellee provides this overview. At the outset,
Appellee agrees with the Appellant’s presentation of the steps required to analyze a lesser included
offense issue. As such they are not included in the Appellee’s brief.
Appellee disagrees with how the Appellant applies his facts to the analysis. Appellee will
demonstrate why the court was correct in denying the request for criminal trespass.
B.) Theory for Request at Trial
At trial counsel said “The only thing we request is that lesser included offense of criminal trespass
based on the testimony that my client was, I guess, around the driveway area of their land and the
evidence wasn’t that he was ever seen in the house”. (RR 3, 145). Based on this it appears counsel
was asking for an instruction based on criminal trespass to property.
The general rule is criminal trespass to property is not a lesser included offense to a charge of
burglary. Johnson v. State, 665 S.W. 2d 554 (Tex. App. – Houston [1st Dist.] 1984, no pet.); Black
7
v. State, 183 S.W. 3d 925 (Tex. App. [14th Dist.] 2006, pet ref’d). The reason for this holding is
based on how the term building is defined as only encompassing the structure and not the
surrounding property. As such the entry element is different and it cannot be a lesser included.
Johnson, at 556, Black at 927. Based on this, the trial court committed no reversible error in
denying the request, and the conviction should be affirmed.
C.) Theory of Request on Appeal
On Appeal, the Appellant expands on his reason why he was entitled to the lesser included charge
and argues that there was evidence that tended to prove that he did not commit, nor attempt to
commit theft. To support this argument he asks the Court to look at Day v. State, 532 S.W. 2d 302,
(Tex. Crim. App. 1976) and Goad v. State, 334 S.W. 3d 443 (Tex. Crim. App. 2011). In addition to
these two, the Appellee submits Mitchell v. State, 807 S.W. 2d 740 (Tex. Crim. App. 1991) for the
Court’s review. In each of these cases there was some evidence that the Appellant was in the
building for a reason other than to commit theft. The evidence is as follows:
Day: Accused testified he saw door open and had entered to investigate;
Goad: Hearsay statements attributed to accused that he had entered looking for his dog;
Mitchell: Accused testified that he had entered to escape from an assailant.
In the Appellant’s case there was no evidence in the record placing him in the building to support the
claim that he had criminally trespassed. In many ways the Appellant’s case is similar to Aguilar v.
8
State, 682 S.W. 2d 556 (Tex. Crim. App. 1985). In Aguilar, police responded to a burglary in
progress call. Upon arriving on the scene, they encountered the accused who fled on foot. In
holding that the accused was not entitled to the lesser included offense, it stated that there must be
some evidence that the accused was guilty only of the lesser offense. In the Appellant’s case since
there is no evidence that, if he is guilty, he is only guilty of the lesser offense then his conviction
should be affirmed.
Assuming arguendo, the Court finds a scintilla of evidence that may support a request for a lesser
included, the Appellee submits Appellant was not entitled to it based on the recent ruling by the
Court of Criminal Appeals in State v. Meru, 414 S.W. 3d 159 (Tex. Crim. App. 2013). In Meru the
Court held that as long as the State used the generic term ‘enter’ in the indictment that criminal
trespass could not be included because as defined by statute ‘enter’ required greater entry in the form
of the whole body, under criminal trespass than it did under burglary in the form of only part of the
body.
In the Appellant’s case, the State used the generic term enter in the indictment. Based on the
reasoning and holding in Meru the Appellant was not entitled to the requested instruction, and the
conviction should be affirmed.
9
PRAYER FOR RELIEF
Based on the foregoing, the Appellee prays that the Appellant’s point of error be overruled and
judgment be affirmed.
Respectfully Submitted,
Timothy J. Cariker, Assistant District Attorney
Harrison County District Attorney
200 West Houston Street
Marshall, Texas 75670
/S/ Timothy J. Cariker
By:_________________________________
Timothy J. Cariker
State Bar No. 24009942
CERTIFCATE OF COMPLIANCE
I certify that this brief contains 2180 words according to the computer program used to prepare this
document.
/S/ Timothy J. Cariker
By: _________________________________
Timothy J. Cariker
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CERTIFICATE OF SERVICE
A true and correct copy of the foregoing document has been delivered to Scott Rectenwald at 110 W.
Fannin St, Marshall, Texas 75670, counsel of record, on this the 4th day of April, 2015.
/S/ Timothy J. Cariker
___________________________________
Timothy J. Cariker
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