Johnson v. State, 01-87-00918-CR

• Decision Date: 15 June 1989
• Docket Number: No. 01-87-00918-CR,01-87-00918-CR
• Citation: 773 S.W.2d 721
• Parties: Gerald Joseph JOHNSON, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 721

773 S.W.2d 721

Gerald Joseph JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 01-87-00918-CR.

Court of Appeals of Texas Houston (1st Dist.).

June 15, 1989.

Jack D. Ewing, Galveston, W. Troy McKinney and Stanley G. Schneider, Houston, for appellant.

Michael J. Guarino, Crim. Dist. Atty. and Thomas Rodriguez, Asst. Dist. Atty., Galveston, for appellee.

EVANS, C.J., and O'CONNOR and DUGGAN, JJ.

OPINION ON MOTION FOR REHEARING

O'CONNOR, Justice.

We withdraw our opinion of February 23, 1989, and substitute the following. A jury convicted appellant of attempted burglary of a building. Appellant pled true to an enhancement paragraph, and the trial court sentenced him to 12 years confinement. Appellant raises 12 points of error.

Amando Villarreal, the complainant and owner of Galveston Watch and Jewelry, lives on the second floor above his store. Villarreal's work area, where he repairs watches and other jewelry, is at the rear of the building, between the first and second floors. Villarreal often leaves watches and jewelry on the work bench at night.

A public alley divides Villarreal's block between 21st and 22nd Streets. A private alley, about 75 feet long and six feet wide, runs behind Villarreal's building, perpendicular to the public alley. The private alley opens only into the public alley. There is a "no trespassing" sign at the entrance of the private alley.

Part of the back wall of Villarreal's work room that faces the private alley is made of glass bricks. The bricks measure seven inches wide by seven inches high and about three and a half inches thick and have a hollow space inside. In the alley, next to the glass brick wall, a platform nine feet high and three feet wide supports an air-conditioning unit.

In the early morning hours of December 20, 1986, the noise from someone banging on glass woke Villarreal two times. Each time Villarreal called the police. The officers who responded to the first call, around 2 a.m., found glass fragments and a clay brick on the platform outside the glass brick wall. One officer testified he thought someone had used the clay brick to break the glass brick.

About 3 a.m., four officers responded to the second call. Officer Karlock entered the public alley from 22nd Street and saw a man (later identified as Verlie Williams) standing in the public alley acting as a look-out. As Officer Karlock watched Williams, he heard the sound of breaking glass coming from the private alley. He then saw Williams go into the private alley.

Officers Chide, Rankin, and Putnal entered the public alley from 21st Street, the opposite direction from Officer Karlock. As the officers advanced, appellant and Williams walked out of the private alley. Officer Chide told them to freeze. Appellant and Williams stopped for a second and then turned toward 21st Street. When Officer Karlock again told them to stop, Williams put his hands up. After hesitating a moment, appellant jumped over a six foot wall and ran. Officers Karlock and Rankin took Williams into custody. Officers Putnal and Chide, running in different directions, pursued appellant.

Officer Putnal chased and caught appellant three times as appellant was trying to escape. On one occasion, as Officer Putnal was struggling with appellant on the ground, appellant grabbed the officer's gun. The gun went off, wounding appellant. In spite of the wound, appellant got up and ran about two blocks until he collapsed in a parking lot. When Officers Putnal and Chide arrested appellant, appellant was wearing a pair of heavy gloves.

After the arrests, the officers found a second broken glass brick adjacent to the first broken glass brick. The officers also found pieces of glass from the brick on the platform.

I. LESSER INCLUDED OFFENSE.

In his first point of error, appellant contends the trial court should have instructed the jury on the lesser included offense of criminal trespass. Appellant argues his presence in the private alley established the lesser included offense of criminal trespass.

The Texas Penal Code defines burglary of a building as entry, without the owner's consent, of a building not open to the public with the intent to commit a theft. Tex. Penal Code Ann. sec. 30.02(a)(1) (Vernon 1974). The Code defines criminal trespass as entry of the property of another, without effective consent, and with notice the entry is forbidden. Tex. Penal Code Ann. sec. 30.05(a)(1) (Vernon 1989). A person commits attempted burglary if, with the specific intent to commit burglary, he does an act amounting to more than mere preparation. Tex. Penal Code Ann. sec. 15.01 (Vernon Supp.1989).

Article 37.09 of the Texas Code of Criminal Procedure defines a lesser included offense as one that:

(1) is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) 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) differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) consists of an attempt to commit the offense charged or an otherwise included offense.

Tex.Code Crim.P.Ann. art. 37.09 (Vernon 1981).

The first question the trial court must decide, before it submits a charge on a lesser included offense, is: Does the lesser offense meet one of the four statutory requirements of article 37.09 for the lesser included offense?

The Texas Court of Criminal Appeals told us in Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981), the trial court must answer another question before it submits an instruction on a lesser included offense: Is there any evidence from any source that supports the proposition that defendant, if guilty, is guilty only of the lesser offense? If the answer is yes, the trial court must submit the charge of the lesser included offense.

There are, therefore, two inquiries in this exercise:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

It is only when both questions are answered "yes" that the trial court can submit the charge of lesser included offense.

A. Is Criminal Trespass Of An Alley A Lesser Included Offense Of Attempted Burglary Of A Building?

There is no definite list of offenses that qualify as being included within the greater offense of burglary. The 1856 Code of Criminal Procedure, the predecessor of article 37.09, which offers some historical perspective, provided:

The following offenses include different degrees:

* * * * * *

4. Burglary, which includes every species of housebreaking and of theft from a house.

Tex.Code Crim.P.Ann. art. 631 (1857).

In Moreno v. State, 702 S.W.2d 636, 640 (Tex.Crim.App.1986), the Court of Criminal Appeals held criminal trespass could be a lesser included offense to burglary of a habitation under article 37.09, subsec. (1). In Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985), the Court of Criminal Appeals held an attempted criminal trespass of a building could be a lesser included offense to attempted burglary of a building.

Appellant, charged with attempted burglary of a building, did not ask for the charge of attempted criminal trespass of the building. Appellant asked for the charge of attempted criminal trespass of the private alley.

The question is: Can criminal trespass of the private alley be a lesser offense to attempted burglary of a building? This Court held in Johnson v. State, 665 S.W.2d 554, 556-57 (Tex.App.--Houston [1st Dist.] 1984, no pet.), that criminal trespass of property surrounding a building is not a lesser included offense of burglary of the building.

On the authority of our 1984 Johnson case, we hold in the present Johnson case that the trial court correctly refused to submit the lesser included offense charge. The criminal trespass of the alley was another criminal act, separate and apart from attempted burglary of the building. It was another crime committed on the same occasion, not a lesser included offense.

Appellant cites three cases to support his claim the trial court erred in refusing to submit the offense of criminal trespass to the alley. In two of the cases, the defendant asked for a lesser included offense involving the same property for which he was charged with burglary. Roberson v. State, 549 S.W.2d 749, 751 (Tex.Crim.App.1977); Day v. State, 532 S.W.2d 302, 307 (Tex.Crim.App.1975). We agree with both cases, but find they do not support appellant's claim for the lesser included offense in this case.

Ortiz v. State, 626 S.W.2d 586 (Tex.App.--Amarillo 1981, pet.ref'd), is the only case appellant cites that makes us pause. In Ortiz, the prosecutor charged defendant with burglary of a storage room. Defendant said he did not go into the storage room; he went into an open bathroom on the same property. The Amarillo Court decided defendant did not commit trespass because the open bathroom was not posted with a "do not enter" sign. The Amarillo Court expressly pointed out:

It is important to remember that appellant is not contending he trespassed at the location of the forcibly opened door into the storage room. Instead, he contends and presented evidence that he entered an open bathroom located in either the same or an adjacent building, with a separate outside entry way.

Ortiz, 626 S.W.2d at 589. This statement from Ortiz seems to conflict with our holding in both Johnson cases. If it does, we disagree with it.

B. Was There Any Evidence Appellant Was Guilty Only Of The Lesser Offense?

Even if trespass of adjacent property were a lesser included offense to burglary of a building, the trial court was still faced with one more question: Was there any evidence appellant was guilty only of the lesser offense? We say no Appellant did not take the stand in this case nor did he call any witnesses. Appellant's attorney, through...