Day v. State
| Decision Date | 16 July 1975 |
| Docket Number | No. 49859,49859 |
| Citation | 532 S.W.2d 302 |
| Parties | William DAY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
B. Hal Miner, Amarillo, for appellant.
Tom Curtis, Dist. Atty. and Bruce Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.
The appellant brings this appeal from a conviction for the offense of burglary with intent to commit theft. Following the return of the jury's verdict of guilty, the court assessed punishment at seven (7) years' confinement in the Texas Department of Corrections.
The appellant contends that the evidence at trial raised the issue of criminal trespass and argues that such offense is a lesser included offense of burglary. He therefore urges that the trial court committed reversible error in failing to submit to the jury one of his two requested instructions concerning the issue of criminal trespass.
The evidence at trial shows that at approximately 3 a.m. on the morning of March 13, 1974, two Amarillo city policemen on routine patrol noticed that a front window of the Underwood's Bar-B-Q located in Amarillo had been broken out. After additional police units arrived, two officers broke out the remaining glass of the broken window and entered the restaurant. They found a large rock located inside the restaurant near the broken window. A cigarette machine was overturned in the dining room, its glass front broken, and its 'rods' and 'bars' torn out. Numerous packs of cigarettes were scattered on the floor beside the cigarette machine. Several items, including an electric razor, an adding machine, an ashtray and four screwdrivers were located in a cardboard box in the dining room in the immediate vicinity of the cigarette machine. The door to the manager's office was open and a metal vent on the door appeared to have been kicked in or pried loose. The police apprehended the appellant near a set of swinging doors between the dining room and kitchen, and recovered from him a letter opener found during a search of his person at the police station.
The restaurant manager, Mr. Collie, testified that he had care, custody, and control of the restaurant. He stated that he closed the restaurant to the public at approximately 9 p.m. on March 12, 1974, and had not given anyone permission to break the front window and enter the store. Mr. Collie testified that the letter opener found on the appellant's person as well as the electric razor, adding machine, ashtray, and four screwdrivers found in the cardboard box in the dining room were all located in his office when he had left work on March 12.
The appellant, testifying in his own behalf, stated that at approximately 3 a.m. on the date in question he was proceeding past Underwood's on the way home from a girlfriend's house. He stated that he observed a man come out of the restaurant and then noticed that a window had been broken out. The appellant testified that he entered the restaurant through the broken window intending to telephone the police to report the broken window. He stated that the cigarette machine was already overturned and the cigarette packs already scattered on the floor at the time of his entry. The appellant testified that he stepped on the letter opener and then put it in his pocket as a 'reflex action.' By his testimony, he was unable to find a light switch or telephone and was apprehended by the police approximately two minutes after entry.
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.
Our initial inquiry concerns whether criminal trespass is, as the appellant contends, a lesser included offense of burglary. Article 37.09, Vernon's Ann.C.C.P., provides:
'An offense is a lesser included offense if:
'(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
'(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
'(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
'(4) it consists of an attempt to commit the offense charged or an otherwise included offense.'
The offense of burglary, contained in Section 30.02, V.T.C.A., Penal Code, is 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 of theft; or
'(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or
'(3) enters a building or habitation and commits or attempts to commit a felony or theft.
'(b) For purposes of this section, 'enter' means to intrude:
'(1) any part of the body; or
'(2) any physical object connected with the body.
'(c) Except as provided in Subsection (d) of this section, an offense under this section is a felony of the second degree.
'(d) An offense under this section is a felony of the first degree if:
'(1) the premises are a habitation; or
'(2) any party to the offense is armed with explosives or a deadly weapon; or
'(3) any party to the offense injures or attempts to injure anyone in effecting entry or while in the building or in immediate flight from the building.'
From examination of the statute, it is obvious that burglary can be committed in either one of three distinct ways: (1) by entering a habitation or building not then open to the public without the effective consent of the owner with the intent to commit a felony or theft; or (2) by remaining concealed in a habitation or building without the effective consent of the owner with the intent to commit a felony or theft; or (3) by entering a habitation or building without the effective consent of the owner and committing or attempting to commit a felony or theft. The elements of the three types of burglary are set out following:
Burglary with intent to commit a felony or theft
(1) a person
(2) without the effective consent of the owner
(3) enters a habitation or building not then open to the public
(4) with the intent to commit a felony or theft.
Burglary by remaining concealed
(1) a person
(2) without the effective consent of the owner
(3) remains concealed in a habitation or building
(4) with the intent to commit a felony or theft.
Burglary by committing a felony or theft
(1) a person
(2) without the effective consent of the owner
(3) enters a habitation or building
(4) knowingly or intentionally, 1 and
(5) 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:
'(1) '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.'
The offense of criminal trespass therefore consists of the following elements:
(1) a person
(2) without effective consent
(3) enters or remains on the property or in a building of another
(4) knowingly or intentionally or recklessly 2
(5) when he had notice that entry was forbidden or received notice to depart but failed to do so.
As can be seen, the first three elements of each of the three types of burglary and criminal trespass are virtually identical. The fourth main element of burglary, either the specific intent to commit or the actual commission or attempted commission of a felony or theft, depending on the type of burglary involved, is absent from the offense of criminal trespass.
The State argues that criminal trespass contains an additional element, 'notice,' which is not contained in the offense of burglary and therefore the requirement of Article 37.09(1), Vernon's Ann.C.C.P., would not be satisfied since the offense of criminal trespass would not be established by proof of the same or less than all of the facts required to prove burglary. It appears, however, that the State has failed to consider the obvious intent of the Legislature in including the 'notice' requirement in the criminal trespass statute. It is apparent that the requirement of 'notice' was intended to prevent an innocent trespass upon the 'property' of another from incurring criminal liability. For example, where one innocently trespasses upon the unfenced and unposted land of another, no criminal offense would be committed. However, in a situation such as that presented in the present case where the proof shows that the accused entered a building not then open to the public, the 'notice' requirement would be satisfied by proof of entry into the building since 'notice' can be established by a 'fencing or other enclosure obviously designed to exclude intruders.' See Section 30.05(b)(2)(B), V.T.C.A., Penal Code. Therefore, the elements of criminal trespass, including 'notice,' could be established by proof of the same facts necessary to prove the offense of burglary. The proof of additional facts would not be necessary, and the requirement of Article 37.09(1), Vernon's Ann.C.C.P., would be satisfied.
Therefore, we hold...
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