CRUZ REYNA v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

State: Texas

Court: Texas Northern District Court

Docket No: 13-02-00301-CR

Case Date: 09/05/2002

Plaintiff: CRUZ REYNA

Defendant: THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

Preview:NO. 07-07-0432-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B SEPTEMBER 24, 2009 ______________________________ JOE CHRISTIAN SALAZAR, Appellant v. THE STATE OF TEXAS, Appellee _________________________________ FROM THE 251ST DISTRICT COURT OF POTTER COUNTY; NO. 55,146-C; ; HON. ANA ESTEVEZ, PRESIDING _______________________________ Memorandum Opinion _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. Joe Christian Salazar was convicted of burglary of a building. He appealed that conviction by contending he should have received an instruction on the lesser offense of criminal trespass. We affirmed the judgment by holding that criminal trespass was not a lesser-included offense of burglary of a habitation as pled in this indictment1 because the latter failed to include facts that would give notice that entry was forbidden. The Court of
1

Appellant was indicted for burglary of a habitation.

Criminal Appeals reversed and remanded the matter to us by holding that a habitation implicitly gives notice that entry is forbidden. Salazar v. State, 284 S.W.3d 874, 880 (Tex. Crim. App. 2009). We, therefore, now consider whether the second prong of the lesserincluded offense analysis was satisfied. It requires us to determine whether there appears evidence of record permitting a rational jury to reasonably conclude that if appellant is guilty of anything, it is only of criminal trespass. See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993) (holding that a party is entitled to an instruction on a lesserincluded offense if 1) the lesser offense is included in the proof necessary to establish the greater offense, and 2) some evidence exists that would permit a jury to rationally find that if appellant is guilty, he is guilty only of the lesser offense). A person commits criminal trespass if he enters or remains on property without effective consent and he had notice that the entry was forbidden or he received notice to depart but failed to do so. TEX . PENAL CODE ANN .

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