                                                                                                 ACCEPTED
                                                                                            06-14-00102-CR
                                                                                  SIXTH COURT OF APPEALS
                                                                                       TEXARKANA, TEXAS
                                                                                       4/5/2015 10:08:58 AM
                                                                                            DEBBIE AUTREY
                                                                                                     CLERK




                                No. 14-00102-CR
                                                                 FILED IN
______________________________________________________________________________
                                                           6th COURT OF APPEALS
                                                                    TEXARKANA, TEXAS
                     IN THE SIXTH COURT OF APPEALS                4/6/2015 9:26:00 AM
                           TEXARKANA, TEXAS                           DEBBIE AUTREY
                                                                          Clerk
______________________________________________________________________________

                               TYRELL SMITH

                                   Appellant,

                                        v.

                            THE STATE OF TEXAS

                                   Appellee.
______________________________________________________________________________

                     Appealed from the 71st District Court of
                            Harrison County, Texas
                           Trial Cause No. 12-0351X

______________________________________________________________________________

                             APPELLEE’S BRIEF

______________________________________________________________________________

                                             Timothy J. Cariker
                                             Assistant District Attorney
                                             State Bar No. 24009942
                                             Harrison County District Attorney’s Office
                                             200 West Houston Street
                                             Marshall, Texas 75670
                                             Telephone: 903-935-8408

                                             ATTORNEY FOR APPELLEE
                                             STATE OF TEXAS
                          IDENTITY OF PARTIES AND COUNSEL

      Appellant certifies that the following is a complete list of all parties to the trial court’s
judgment and the names and addresses of their trial and appellate counsel.

1.     Presiding Judge:        Honorable Brad Morin
                               71st Judicial District
                               Marshall, Texas 75670

2.     Appellant:              Tyrell Smith

3.     Appellant’s Counsel (at trial):         Rick Hulburt
                                               Attorney at Law
                                               222 N. Fredonia
                                               Longview, Texas 75601

4.     Appellant’s Counsel (on appeal)         Scott Rectenwald
                                               Attorney at Law
                                               110 W. Fanin Street
                                               Marshall, Texas 75670

5.     State’s Counsel (at trial):             Shawn Eric Connally
                                               Tommy Jackson
                                               Assistant District Attorneys
                                               Harrison County District Attorney
                                               200 West Houston Street
                                               Marshall, Texas 75670


6.     State’s Counsel (on appeal):            Timothy J. Cariker
                                               Assistant District Attorney
                                               Coke Solomon
                                               District Attorney
                                               Harrison County District Attorney
                                               200 West Houston Street
                                               Marshall, Texas 75670




                                                   i
                                                    TABLE OF CONTENTS

Identity of Parties and Counsel ........................................................................................................i

Table of Contents ............................................................................................................................ii

Index of Authorities ........................................................................................................................1

Issues Presented…………………………………………………………………………………….2

           I.         THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT
                      DECLINED TO INCLUDE THE OFFENSE OF CRIMINAL TRESSPASS IN
                      APPELLANT’S JURY CHARGE

Statement of the Case .....................................................................................................................3

Statement of Facts...........................................................................................................................4

Summary of Argument.....................................................................................................................6

Argument and Authorities

           I.         THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT
                      DECLINED TO INCLUDE THE OFFENSE OF CRIMINAL TRESSPASS IN
                      APPELLANT’S JURY CHARGE

                      A.         Overview…………………………………………………………………..7
                      B.         Theory for Request at Trial…………………………………………..…….7
                      C.         Theory for Request on Appeal………………………………………………8


Prayer for Relief.............................................................................................................................10

Certificate of Compliance………………………………………………………………..………10

Certificate of Service.....................................................................................................................11




                                                                       ii
                               INDEX OF AUTHORITIES


Texas Court of Criminal Appeals

Aguilar v. State, 682 S.W. 2d 556 (Tex. Crim. App. 1985)…………………………………8, 9

Day v. State, 532 S.W. 2d 302, (Tex. Crim. App. 1976)………………………………………..8

Goad v. State, 334 S.W. 3d 443 (Tex. Crim. App. 2011)……………………………………….8

Mitchell v. State, 807 S.W. 2d 740 (Tex. Crim. App. 1991)……………………………………8

State v. Meru, 414 S.W. 3d 159 (Tex. Crim. App. 2013)……………………………………….9



Texas Court of Appeals

Black v. State, 183 S.W. 3d 925 (Tex. App. [14th Dist.] 2006, pet ref’d)…………………….7, 8

Johnson v. State, 665 S.W. 2d 554 (Tex. App. – Houston [1st Dist.] 1984, no pet.)…………7, 8




                                            1
                     ISSUES PRESENTED


I. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT
   DECLINED TO INCLUDE THE OFFENSE OF CRIMINAL TRESSPASS IN
   APPELLANT’S JURY CHARGE




                             2
                                 STATEMENT OF THE CASE


The Appellant was charged by indictment with the offense of Burglary of a Building. (CR2). Prior

to voir dire the Appellant elected to proceed pro se and counsel was appointed to act as ‘shadow

counsel’. (RR 2-20). On January 7, 2014 testimony commenced, but the Appellant was not present

and shadow counsel assumed the role of trial counsel. (RR 3-9). At the conclusion of the trial the

Appellant was found guilty. (RR 3-268). The jury assessed punishment at 24 months incarceration

in the State Jail Division of the Texas Department of Criminal Justice, and the assessed a $10,000.00

fine. (RR 3-186).




                                                 3
                                    STATEMENT OF FACTS


Philip Allen testified that in the early afternoon of June 9th, his son noticed a reflection of light on

the storm door of the little rental cottage that they owned near their home. (RR 3 22-23). No one

had been over to the cottage in several days, and the cottage was usually closed up. He walked

about 125yards from his home to the cottage to investigate. (RR 3, 24). He attempted to call

911, but the call did not go through, so he then called his father-in-law and let him know that he

suspected somebody was down their road. Id.

Mr. Allen then noticed a gold or bronze Buick Road Master parked about 100 yards away, and he

made another attempt to call 911, finally getting through, and giving the dispatcher the license plate

number of the car. (RR 3, 25). While on the phone with the dispatcher, Mr. Allen saw a person walk

out if the woods to the Buick (State’s Exhibit 1 and RR 3, 28), which he later identified as the

Appellant. (RR, 3 29, State’s Exhibit 3). Appellant exited the woods along the pipeline right of way

(RR 3. 46), not more than ten yards from the Buick (RR 3, 47). The trunk of the Buick was closed

(RR 3, 46). He attempted to make contact with the Appellant, but te Appellant sped off. (RR 3, 29).

Allen’s father in law attempted to bock the Buick on their road, but was unsuccessful. (RR 3, 31).

An air conditioning unit, a mitre saw and a camp stove that had previously been in the cottage were

lying in the front yard. (RR 3, 27). The items were located on the north side of the house (RR 3,

38), and because it had been several days since they had been to work on the house, Mr. Allen could

not positively say that the items had been left in the yard on that particular day. (RR 3, 39). He did

state that he did not believe the items were removed before the day of the incident and that they were

removed that day. (RR 3, 53). Additionally, the front door to the cottage was left unlocked, and

when Mr. Allen approached the house, he did not see anybody in the house. (RR 3, 38). Mr. Allen

                                                   4
could see the only two doors to the house as he approached it (RR 3, 39-40) and never saw anybody

running from the house (RR 3, 48).



Don Dowdell, Mr. Allen’s father in law, only saw the Appellant as he left the location. When he

received a call from his son in law, he parked near Highway 59 and Loden Road, and observed the

parked gold/bronze Buick. (RR 3, 59). He observed a man coming out of the woods, getting into the

Buick and speeding off. Id. Mr. Dowdell attempted to block the person to detain him until law

enforcement arrived. (RR 3, 60). The Appellant sped off by him at a high rate of speed and went

north in the south bound lanes of the highway. (RR 3, 59). Mr. Dowdell late identified the

Appellant as the person in question from a police lineup. (RR 3, 61, State’s Exhibit 4). As he

observed the Appellant walking to the vehicle, the Appellant appeared to be alone, not carrying any

tools, the Appellant did not appear to be sweaty or carrying any tools. (RR 3, 70-71).



No useable fingerprints were found in items at the cottage (RR 3, 80), and no footprints were noted

around the cottage. (RR 3, 109). Furthermore, no open windows were noted at the cottage. (RR 3,

105-107). However, the license plate number that Phillip Allen provided to police turned out to be a

dealer’s tag from GT & Sons Auto. (RR 3, 80), and GT personnel advised that the vehicle had been

sold to the Appellant. (RR 3, 81).



During the charge conference, trial counsel requested that an instruction on the lesser included

offense of criminal trespass be included in the charge. (RR 3, 145-146). The request was denied.

(RR 3, 146).


                                                 5
                                  SUMMARY OF ARGUMENT



Having been convicted of burglary of a building, Appellant’s sole complaint on appeal is that the

trial court erred in denying his request that a criminal trespass instruction should have been included

in the jury charge. At trial the request was based on the argument that if he was guilty of anything it

was trespassing on the land surrounding the building. Prior decisions of other Courts do not support

this position.



On appeal the Appellant expands his argument and argues that it should have been included because

the evidence shows that if he was guilty of anything it was trespassing to the building. This

argument is flawed for two reasons. First, there is no evidence to support it, and second, the Court of

Criminal Appeals has issued a recent decision holding that criminal trespass is not a lesser included

offense to burglary.




                                                  6
                                     ISSUE NUMBER ONE


I.     THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT
       DECLINED TO INCLUDE THE OFFENSE OF CRIMINAL TRESSPASS IN
       APPELLANT’S JURY CHARGE


A.)    Overview



In an effort to aid the reader and promote brevity, Appellee provides this overview. At the outset,

Appellee agrees with the Appellant’s presentation of the steps required to analyze a lesser included

offense issue. As such they are not included in the Appellee’s brief.



Appellee disagrees with how the Appellant applies his facts to the analysis. Appellee will

demonstrate why the court was correct in denying the request for criminal trespass.



B.)     Theory for Request at Trial



At trial counsel said “The only thing we request is that lesser included offense of criminal trespass

based on the testimony that my client was, I guess, around the driveway area of their land and the

evidence wasn’t that he was ever seen in the house”. (RR 3, 145). Based on this it appears counsel

was asking for an instruction based on criminal trespass to property.



The general rule is criminal trespass to property is not a lesser included offense to a charge of

burglary. Johnson v. State, 665 S.W. 2d 554 (Tex. App. – Houston [1st Dist.] 1984, no pet.); Black

                                                 7
v. State, 183 S.W. 3d 925 (Tex. App. [14th Dist.] 2006, pet ref’d). The reason for this holding is

based on how the term building is defined as only encompassing the structure and not the

surrounding property. As such the entry element is different and it cannot be a lesser included.

Johnson, at 556, Black at 927. Based on this, the trial court committed no reversible error in

denying the request, and the conviction should be affirmed.



C.)    Theory of Request on Appeal



On Appeal, the Appellant expands on his reason why he was entitled to the lesser included charge

and argues that there was evidence that tended to prove that he did not commit, nor attempt to

commit theft. To support this argument he asks the Court to look at Day v. State, 532 S.W. 2d 302,

(Tex. Crim. App. 1976) and Goad v. State, 334 S.W. 3d 443 (Tex. Crim. App. 2011). In addition to

these two, the Appellee submits Mitchell v. State, 807 S.W. 2d 740 (Tex. Crim. App. 1991) for the

Court’s review. In each of these cases there was some evidence that the Appellant was in the

building for a reason other than to commit theft. The evidence is as follows:



Day:   Accused testified he saw door open and had entered to investigate;

Goad: Hearsay statements attributed to accused that he had entered looking for his dog;

Mitchell:      Accused testified that he had entered to escape from an assailant.



In the Appellant’s case there was no evidence in the record placing him in the building to support the

claim that he had criminally trespassed. In many ways the Appellant’s case is similar to Aguilar v.

                                                  8
State, 682 S.W. 2d 556 (Tex. Crim. App. 1985). In Aguilar, police responded to a burglary in

progress call. Upon arriving on the scene, they encountered the accused who fled on foot. In

holding that the accused was not entitled to the lesser included offense, it stated that there must be

some evidence that the accused was guilty only of the lesser offense. In the Appellant’s case since

there is no evidence that, if he is guilty, he is only guilty of the lesser offense then his conviction

should be affirmed.



Assuming arguendo, the Court finds a scintilla of evidence that may support a request for a lesser

included, the Appellee submits Appellant was not entitled to it based on the recent ruling by the

Court of Criminal Appeals in State v. Meru, 414 S.W. 3d 159 (Tex. Crim. App. 2013). In Meru the

Court held that as long as the State used the generic term ‘enter’ in the indictment that criminal

trespass could not be included because as defined by statute ‘enter’ required greater entry in the form

of the whole body, under criminal trespass than it did under burglary in the form of only part of the

body.

In the Appellant’s case, the State used the generic term enter in the indictment. Based on the

reasoning and holding in Meru the Appellant was not entitled to the requested instruction, and the

conviction should be affirmed.




                                                  9
                                    PRAYER FOR RELIEF



Based on the foregoing, the Appellee prays that the Appellant’s point of error be overruled and

judgment be affirmed.

                                              Respectfully Submitted,

                                              Timothy J. Cariker, Assistant District Attorney
                                              Harrison County District Attorney
                                              200 West Houston Street
                                              Marshall, Texas 75670


                                                     /S/ Timothy J. Cariker
                                              By:_________________________________
                                              Timothy J. Cariker
                                              State Bar No. 24009942




                              CERTIFCATE OF COMPLIANCE


I certify that this brief contains 2180 words according to the computer program used to prepare this
document.


                                                     /S/ Timothy J. Cariker
                                              By: _________________________________
                                              Timothy J. Cariker




                                                10
                               CERTIFICATE OF SERVICE



A true and correct copy of the foregoing document has been delivered to Scott Rectenwald at 110 W.

Fannin St, Marshall, Texas 75670, counsel of record, on this the 4th day of April, 2015.


                                                    /S/ Timothy J. Cariker
                                                    ___________________________________
                                                    Timothy J. Cariker




                                               11
