Aguilar v. State

• Decision Date: 09 January 1985
• Docket Number: No. 004-84,004-84
• Parties: Ruben AGUILAR, Appellant, v. The STATE OF Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 556

682 S.W.2d 556

Ruben AGUILAR, Appellant, v. The STATE OF Texas, Appellee.

No. 004-84.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 9, 1985.

Adolph Quijano, Jr., Robin Norris, El Paso, for appellant.

Steve W. Simmons, Dist. Atty. and Nick O. Martinez, Jr., Asst. Dist. Atty., El Paso, Robert Huttash, State's Atty. and Alfred Walker, First Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction of attempted burglary of a building with intent to commit theft pursuant to V.T.C.A. Penal Code, § 15.01(a) and § 30.02(a)(1). The trial court assessed punishment at ten years imprisonment, probated, and a $250.00 fine.

On direct appeal, the El Paso Court of Appeals reversed the conviction and remanded the case for a new trial because the trial court failed to instruct the jury on the lesser included offense of attempted criminal trespass. We granted the State's petition for discretionary review to examine the correctness of that decision.

The evidence at trial consisted solely of the testimony of two State's witnesses. The owner of the building, complainant Refugio Curtis, testified she left the premises of the "105 Lounge" at 12:30 a.m. on September 20, 1981, locking the door as she left. She further related that the door to the business was in good condition when she locked up, but when she returned at 9:30 a.m. on the same day, she discovered that the top portion of the wooden door had been pushed back. She also testified that she did not give anyone permission to enter the building after she had gone.

Officer Eduardo Robles, Jr., a police officer in the city of El Paso, testified that he and his partner were dispatched to 105 Rio Grande in response to a "burglary in progress" call. Upon arrival at the scene, he observed two subjects standing in the recessed doorway to the 105 Lounge. The two individuals had their backs to the street and were facing the door to the bar. Officer Robles testified that he could not tell what they were doing at that time. As the two officers approached the suspects in a marked police vehicle, the two individuals began to run. After brief foot pursuit, they were apprehended and placed in a back-up police vehicle. Appellant was one of the arrested suspects. The officers then inspected the door to the 105 Lounge and discovered the top portion of the wooden door had been pushed back.

The appellant did not testify nor offer any defensive evidence.

Criminal trespass can be a lesser included offense of burglary of a building. Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1976). Merely because a lesser offense is included within the proof of a greater offense, however, does not always warrant a jury charge on the lesser offense. In Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981), this Court enunciated a two part test to determine whether a charge on the lesser included offense is required. "First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense." (citation omitted.)

Under the second prong of the Royster test, there must be some evidence that the appellant, if guilty, is guilty only of the lesser included offense of criminal trespass. Thus, if testimony raises the issue that the defendant entered the premises for purposes other than to commit a felony or theft, he would be entitled to a charge on the lesser offense of trespass. Day, supra. But, if the defendant presents evidence that he committed no offense at all, McKinney v. State, 627 S.W.2d 731 (Tex.Cr.App.1982); McCardell v. State, 557 S.W.2d 289 (Tex.Cr.App.1977), or if he presents no evidence, Denison v. State, 651 S.W.2d 754 (Tex.Cr.App.1983); Thomas v. State, 543 S.W.2d 645 (Tex.Cr.App.1976), and there is no evidence otherwise raising the issue ¹, a charge on the lesser offense of trespass is not required.

In the case at bar, while proving the offense of attempted burglary of a building with intent to commit theft, the State also proved the offense of attempted criminal trespass. There was, however, no evidence in the record from any source which showed that if Appellant was guilty, he was guilty of criminal trespass only. Denison, supra. Thomas, supra.

The Court of Appeals, however, held that since non-consensual nighttime entry raises a presumption of intent to commit theft, Mauldin v. State, 628 S.W.2d 793 (Tex.Cr.App.1982), and the jury is not bound to find the element of the offense sought to be presumed under V.T.C.A. Penal Code, § 2.05(2)(B), a charge on the lesser offense of trespass was required. We disagree.

At the outset, we note that a charge on lesser included offenses is not required merely because the jury is charged on the issue of the existence of a presumed fact under V.T.C.A. Penal Code, § 2.05. Beyond that, and more to the point, there was no trial presumption employed in this case. Penal Code § 2.05(2) applies only when "the existence of the presumed fact is submitted to the jury". There was no reference to a presumption of intent to commit theft contained in this court's charge to the jury; and correctly so. The "presumption" ² of intent to commit theft arising from non-consensual nighttime entry is an appellate vehicle employed to review the sufficiency of the evidence, not a trial vehicle used to prove an element of the State's case.

The trial court did not err in excluding an instruction on attempted criminal trespass. Accordingly, the judgment of the Court of Appeals is reversed. Since appellant's other grounds of error were considered and overruled by the Court of Appeals, the judgment of the trial court is affirmed.

CLINTON, Judge, dissenting.

In Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981) this Court did not enunciate a two part test to determine whether a charge on a lesser included offense is required. A plurality of four judges followed a panel majority opinion in Eldred v. State, 578 S.W.2d 721 (Tex.Cr.App.1979), which was not tested for validity on rehearing by the Court En Banc. In between there was Watson v. State, 605 S.W.2d 877 (Tex.Cr.App.1980), and like Royster v. State, supra, it too mustered just a plurality for the "guilty only" test of Daywood-McBrayer. As of September 28, 1981 five judges had rejected the socalled "two part test" in favor of others. See Royster v. State, supra, at 447; see also Watson v. State, supra, at 886-887. I still do and therefore dissent.

In Watson I demonstrated to the satisfaction of Judge Dally that "[t]he rule stated by the majority is an incorrect rule which has been erroneously applied numerous times since its apparent genesis in Daywood v. State, 157 Tex.Cr.R. 266, 248 S.W.2d 479 (1952) as dictum," id., at 886. ¹ Despite reiterating the Daywood-McBrayer "guilty only" test from time to time, this Court may have abandoned it recently in Lugo v. State, 667 S.W.2d 144 (Tex.Cr.App.1984)--since the opinion does not even mention nor does it apply the "two part test" in finding error in refusal to instruct on a lesser included offense raised by a consideration of all the evidence before the jury. However, if this Court still has not settled on a fair and workable standard for determining when a trial court is required to include in its charge to a jury proper instructions authorizing jurors to consider a lesser included offense, now is the time to do so, and Lugo provides it in the instant cause.

In Lugo, supra, the Court found, "The sole issue at trial concerned appellant's intent." Id., at 149. Is not that the ultimate issue in the case at bar?

The offense alleged is attempted burglary--that is, that appellant with specific intent to commit the offense of burglary did the act described, according to the State, with intent to commit theft. V.T.C.A. Penal Code, § 15.01(a) and § 30.02(a)(1). The offense of attempted criminal trespass requires specific intent to commit the offense of criminal trespass coupled with an act that tends to but fails to effect a criminal trespass--that is, one intends to enter a building of another without effective consent, having notice that entry is forbidden, and goes beyond preparing to do so. Id., § 15.01(a) and § 30.05(a).

The testimony of Officer Robles is that he observed two persons standing in the recessed doorway to the 105 Lounge; they were facing the door, their backs to the street; he could not tell what they were doing at that time. Only later was it discovered that the top part of a wooden door had been pushed back. Thus is shown an attempted entry, and the only question is with what intent was that attempt made--to commit burglary or criminal trespass. Since the evidence adduced at trial raises an issue that a lesser included offense may have been committed, to paraphrase Lugo, the trial court should have included a proper instruction on the lesser included offense of criminal trespass. Lugo, supra, at 147.

TEAGUE, Judge, dissenting.

Because the majority erroneously holds that Ruben Aguilar, appellant, was not entitled to an instruction on the lesser offense of criminal trespass, I am compelled to dissent.

Because my Brother Clinton has written a thought provoking dissenting opinion, I join that opinion. However, but because I believe additional remarks, concerning the law that governs when a lesser included offense instruction must be made, I also write.

The immediate predecessors of Articles 37.08 and 37.09, V.A.C.C.P., were Articles 694 and 695, 1925 Code of Criminal Procedure.

Art. 694, supra, provided:

In a prosecution for an offense including lower offenses, the jury may find the defendant not guilty of the higher offense but guilty of any lower offense included.

Art. 695, supra, provided:

The following offenses include different degrees:

1. Murder, which includes all the...