                                    NO. 07-08-0087-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                 DECEMBER 16, 2008
                           ______________________________

                           DELVETRA LASHERL JENNINGS,

                                                                         Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                                         Appellee
                        _________________________________

                FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

           NO. A17,382-0710; HON. ROBERT W. KINKAID, JR., PRESIDING
                       _______________________________

                                      Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Delvetra Lasherl Jennings was indicted for burglary of a habitation with intent to

commit aggravated assault. Yet, a jury convicted her of a lesser crime, that being burglary

of a habitation with intent to commit simple assault. Here, she complains of the jury charge

and asserts that the trial court erred in 1) omitting from it a verdict form that permitted the

jurors to find her “not guilty” of any offense, 2) improperly commenting on the evidence via
the charge, and 3) omitting from the charge the purportedly lesser-included offenses of

assault and criminal trespass. We affirm the judgment.

       Background

       Appellant and the victim Michael Ray entered into a relationship whereby Ray

agreed to install a new engine in appellant’s automobile. She paid him $750, but Ray did

not complete the work. On October 8, 2007, appellant, her boyfriend Preston Alexander,

and a third unidentified man entered Ray’s home through the front door, without knocking,

assaulted him, and vandalized his house.

       Issue 1 - “Not Guilty” Verdict Form

       In her first issue, appellant complains that the trial court erred in failing to submit to

the jury a “not guilty” form with respect to the crime for which she was ultimately convicted.

We overrule the issue.

        Three verdict forms were submitted to the jury. They allowed the jury to find

appellant either not guilty of burglary of a habitation with intent to commit aggravated

assault, guilty of burglary of a habitation with intent to commit aggravated assault, or guilty

of burglary of a habitation with intent to commit assault. No request was made, however,

for a form allowing the jury to find appellant not guilty of the lesser charge. Nor did

appellant object to its absence. Thus, she waived the complaint. Contreras v. State, 54

S.W.3d 898, 906 (Tex. App.–Corpus Christi 2001, no pet.) (holding that the failure to

include a “not guilty” form was not fundamental error and required an objection to preserve

it for appellate review); Hegar v. State, 11 S.W.3d 290, 298 (Tex. App.–Houston [1st Dist.]

1999, no pet.) (holding that the complaint about improper verdict forms had been waived



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due to the failure to object at trial); Uzal v. State, No. 03-99-0242-CR, 2000 Tex. App. LEXIS

79 at *2-3 (Tex. App.–Austin January 6, 2000, no pet.) (not designated for publication)

(holding that the omission of a not guilty form is not fundamental error).1

        Issue 2 - Comment on the Weight of the Evidence

        Appellant next complains about a portion of the trial court’s charge being a comment

on the weight of the evidence. Yet, she did not object to it below. Thus, the complaint was

not preserved for review, and we overrule it. Contreras v. State, 54 S.W.3d at 906 (holding

that the failure to object to an alleged comment on the weight of the evidence waives the

claim); Martinez v. State, 691 S.W.2d 791, 793 (Tex. App.–El Paso 1985, no pet.) (holding

the same).

        Issue 3 - Lesser-Included Offenses

        Finally, appellant contends that the trial court erred in failing to instruct the jury on

the purported lesser-included offenses of simple assault and criminal trespass. We

overrule the issue.

        A party is entitled to an instruction on a lesser 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 the defendant is guilty, he is guilty

only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.

1993). In applying the first prong, we compare the elements of the lesser crime to those

of the greater as the latter is described in the indictment. Hall v. State, 225 S.W.3d 524,

        1
         W e have held that verdict form s need not be provided to the jury. Hernandez v. State, No. 07-96-
0251-CR, 1997 Tex. App. L EXIS 1958 at * 13 (Tex. App.–Am arillo April 15, 1997, pet. ref’d). Consequently,
they are not part of the court’s charge to the jury. Id. That being so, the failure to raise com plaints regarding
the verdict form s is not subject to the harm analysis described in Almanza v. State, 686 S.W .2d 157 (Tex.
Crim . App. 1985), for Almanza encom passes error in the court’s charge. Id. at 171.

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535-36 (Tex. Crim. App. 2007). In other words, if the elements of the supposed lesser

offense are not included in the wording of the crime contained in the indictment, it is not

a lesser-included offense.

       As previously mentioned, the State charged appellant with burglary of a habitation

with the intent to commit aggravated assault. It described the crime in the indictment by

alleging that she “with intent to commit the felony . . . of aggravated assault, intentionally

or knowingly enter[ed] a habitation, without the effective consent of Michael Ray, the owner

thereof.” To see if the first lesser offense sought by appellant (assault) falls within that

verbiage, we turn to the applicable statute and discover that assault consists of 1)

intentionally, knowingly, or recklessly causing another bodily injury, 2) intentionally or

knowingly threatening another with imminent bodily injury, or 3) intentionally or knowingly

causing physical contact with another under various circumstances (none of which are

applicable here). TEX . PENAL CODE ANN . § 22.01(a) (Vernon Supp. 2008). Comparing the

elements of the two crimes reveals that the burglary accusation does not require proof of

bodily injury, threats, or touching while assault does. For this reason, simple assault is not

a lesser-included offense of burglary consisting of the entry into a habitation with the intent

to commit aggravated assault. Rojas v. State, No. 07-05-0359-CR, 2006 Tex. App. LEXIS

3222 at *4 (Tex. App.–Amarillo April 20, 2006, pet. ref’d) (not designated for publication)

(involving burglary described as entry with the intent to commit assault); see also Jacob v.

State, 892 S.W.2d 905, 909 (Tex. Crim. App. 1995) (stating that aggravated assault itself

is not a lesser offense of burglary of a habitation with intent to commit aggravated assault).

       As for criminal trespass, it is defined as entering or remaining on or in property or

a building of another without the other’s effective consent “and” having notice that the entry

                                              4
was forbidden or receiving notice to depart but failing to do so. TEX . PENAL CODE ANN . §

30.05(a)(1) & (2) (Vernon Supp. 2008). Comparing this offense to that alleged in the

indictment reveals that the latter omits the element of notice, i.e. either notice that entry

was forbidden or notice to depart. So, the facts necessary to convict one of criminal

trespass are not within the scope of the offense alleged in the indictment. Thus, it too is

not a lesser-included offense. See Salazar v. State, 259 S.W.3d 232, 233-34 (Tex. App.–

Amarillo 2008, pet. granted) (holding that criminal trespass was not a lesser-included

offense of burglary given the element of notice in the former which was absent from the

latter).

           Having overruled all of appellant’s issues, we affirm the judgment.



                                                    Brian Quinn
                                                    Chief Justice



Publish.




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