Daniels v. State

• Decision Date: 09 June 1982
• Docket Number: No. 63062,No. 1,63062,1
• Parties: Leon Oneal DANIELS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 899

633 S.W.2d 899

Leon Oneal DANIELS, Appellant, v. The STATE of Texas, Appellee.

No. 63062.

Court of Criminal Appeals of Texas, Panel No. 1.

June 9, 1982.

John T. Knouse, Dallas, for appellant.

Henry M. Wade, Dist. Atty., Maridell Templeton, R. R. Smith and Rick Russell, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ROBERTS, TOM G. DAVIS and W. C. DAVIS, JJ.

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for burglary of a habitation. After the jury found appellant guilty it found that he had been convicted of a prior felony. Punishment was assessed at 30 years.

C. L. Jack is a friend of the complaining witness, Anita Simon. Jack was at Simon's apartment in the early morning hours of April 16, 1978. He testified to hearing a noise in the living room. He and Simon went up the hallway and saw appellant standing in the living room. Appellant unlocked the door and ran from the apartment. Jack pursued appellant and brought him back to the apartment. Simon testified that appellant told her he wanted to get her television set.

Officer E. D. Holsinger of the Dallas Police Department testified that he received a call and went to Simon's apartment. He observed that the front window screen was off and also observed injuries to appellant's elbows.

Appellant contends the court was in error "in refusing to submit appellant's requested charge on the lesser included offense of criminal trespass."

The offense of criminal trespass has been held to be a lesser included offense of burglary. Day v. State, Tex.Cr.App., 532 S.W.2d 302. In determining whether a charge on the lesser included offense is required a two-step analysis was set forth in Royster v. State, Tex.Cr.App., 622 S.W.2d 442. 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.

Appellant offered evidence from a number of witnesses that he had been drinking heavily prior to the occasion in question. Among the witnesses who testified as to his intoxicated condition were his mother and sister. Appellant lived intermittently at his sister's apartment which was located in the same complex as Simon's apartment. Appellant's mother, who also lived in the apartment, related that appellant came to the apartment prior to the time in question and she refused him admittance because of his intoxicated state. Appellant had previously been told not to come to the apartment when he was drunk and had on occasion gained entrance through a window of the apartment where he was refused admittance.

The appellant took the stand in his own behalf and his testimony reflects the following regarding his entry into the apartment in question:

"Q. ... Now, ... when you opened the window and went into this apartment, where did you think you were?

"A. I thought I was in my room. See, the room that I went in, I thought it was the room that my little niece sleeps in and I never do go to sleep in that room. You know, I always go to the front room.

"When I went in, I came through the room and when I got into the house, I was fixing to get down on my knees and crawl to the living room. Somebody say, 'Hey, nigger,' and I think that scared me and I thought it was my brother and I ran out.

"...

"Q. Did you have any intention in your mind of stealing anything when you went into the apartment?

"A. No.

"Q. What was your intention?

"A. Go to sleep.

"Q. All right. Now, whose apartment did you think you were in?

"A. I thought I was in my mother's apartment-my sister's apartment."

The offense of criminal trespass under V.T.C.A. Penal Code, Sec. 30.05 consists of the following elements:

(1) a person

(2) without effective consent

(3) enters or remains on the property of or in a building of another

(4) knowingly or intentionally or recklessly

(5) when he had notice that entry was forbidden or received notice to depart but failed to do so. See Day v. State, supra 532 S.W.2d at page 306.

Appellant's testimony negated that he knowingly or intentionally entered the apartment of the complaining witness. The culpable mental state of "recklessly" is defined in V.T.C.A. Penal Code, Sec. 6.03(c) as follows:

"A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint."

The testimony of appellant that he thought he was in his sister's apartment refutes that he was "aware of but consciously disregards a substantial and unjustifiable risk." Thus, appellant, in his own testimony, expressly denied that he had the required culpable intent of "knowingly or intentionally or recklessly" required to commit the offense of criminal trespass.

No error is shown in the court's failure to charge on criminal trespass. ¹

Appellant complains of improper jury argument by the prosecutors at the punishment stage.

In his jury argument at the punishment stage, appellant's counsel stated: "Remember that you are judging a human being's life and you are not sending him away for a little bit. If you send him away for the minimum, you are sending him away for fifteen years of his life."

During prosecutor Smith's jury argument, the following exchange occurred:

"Members of the jury, before I do anything else, let me disagree. I don't object, but let me disagree with a few things that Mr. Knause had to say.

"...

"Now, he tells you that ......