      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00428-CR



               Dromico Andree Washington a/k/a Andrew Washington a/k/a
                      Dromico Andrew Washington, Sr., Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 66578, HONORABLE JOE CARROLL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted appellant Dromico Andree Washington a/k/a Andrew Washington

a/k/a Dromico Andrew Washington, Sr. of burglary of a habitation and sentenced him to fifteen

years’ imprisonment. Because we agree with Washington that the trial court improperly denied his

request for a jury instruction on a lesser-included offense, we reverse and remand for a new trial.


                                      Summary of the Facts

               Washington and the complainant Anna Sanders had been in a relationship for about

five years before the evening of April 6, 2010, and had lived together on and off. Sanders testified

that at the time of the incident, she had moved into a new house and that only she and her children

were listed on the lease. Sanders decided to end the relationship because Washington became violent

and controlling, but when she told him he was no longer welcome at her house, he made her feel
guilty, said he would have nowhere to live, and told her, “I get mail here. You can’t kick me out.

You have to make me leave.” She looked into eviction but could not afford the process, so instead

she changed the locks, moved his belongings into a storage unit, had his mail forwarded to an

earlier address, and got an alarm system. Sanders testified that in 2009 and 2010, the police came

to her house “numerous times” due to disturbances involving Washington. Although she obtained

a protective order against him, he continued to come to the house and be abusive and threatening.

She also testified that when they fought, he would take her cell phone so that she could not call the

police and that she had to replace her phone six times in less than four years.

               At about 3:00 a.m. on April 6, 2010, Sanders arrived home late after driving a friend

home from the airport. She and the friend who had stayed with Sanders’s children were in Sanders’s

garage talking and smoking cigarettes when they heard a loud “boom,” realized someone had kicked

in the back door to the house, and then saw Washington kick in the door from the house into the

garage. Sanders and her friend testified that Washington charged at Sanders and struggled with her

over her phone. Sanders’s friend ran inside and called the police. Sanders testified that Washington

left after telling her that he was going to kill her. Sanders said that if her friend had not been there

to call the police, she believed Washington would have seriously injured or even killed her. Two

police officers who responded to the scene saw minor scratches on the inside of Sanders’s arm and

testified that the back door and the door from the house into the garage had been kicked in or

otherwise forced open.

               Washington admitted that he entered the house, asserting athat he still lived there

and that Sanders had never told him that she did not want him there. He said that not all of his

belongings had been moved into the storage unit and that he still received mail at Sanders’s house

                                                   2
at the time. Washington testified that even after this incident, he continued going over to the house,

cooking, cleaning, and helping get the children ready for school. He admitted that he forced open

two doors, by kicking one and by forcing the other open with his shoulder, saying he was angry at

Sanders for “messing around with” someone else, but denied that he touched her or tried to take

her cell phone away. He said he “walked in, said what I had to say, and I left.”


                                             Discussion

               In his second issue, Washington argues that he was improperly denied a jury

instruction on the lesser-included offense of criminal trespass. We agree.

               An offense is a lesser-included offense if it is proved by evidence of the same or

fewer facts required to prove the charged offense. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim.

App. 2011). Criminal trespass can be a lesser-included offense of burglary of a habitation.1 Id. A

defendant is entitled to an instruction on a lesser-included offense if “the offense contained in the

requested instruction is a lesser-included offense of the charged offense” and if the evidence supports

the instruction. Id. “The evidence supports an instruction on a lesser-included offense if it permits

a rational jury to find the defendant guilty only of the lesser-included offense,” and there must

be evidence “‘directly germane’” to the lesser-included offense before the instruction is warranted.

Id. (quoting Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003)) (evidence “must

establish that the lesser-included offense is a valid, rational alternative to the charged offense”).


       1
           Compare Tex. Penal Code § 30.02(a) (person commits burglary if he enters habitation
without owner’s effective consent and commits, intends to, or attempts to commit felony, theft, or
assault), with id. § 30.05(a) (person commits criminal trespass if he enters property without owner’s
effective consent and knew entry was forbidden or does not leave when told to depart).

                                                  3
                “A defendant’s testimony that he lacked intent to commit a felony when entering

another’s property is sufficient to support a criminal trespass instruction,” and the defendant need

not present direct evidence of his lack of intent. Id. at 447-48. We will not consider the credibility

of the witnesses or the evidence or resolve evidentiary conflicts. Id. at 446-47 (quoting Banda v.

State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994)).

                The State focuses on whether there was evidence Washington knew he lacked

Sanders’s consent to enter her house but ignores the effect of Washington’s testimony that he did

not intend to commit theft or assault and instead that he merely told her to stop seeing another man

and then left.2 As in Goad, the offense of criminal trespass was established by proof of the facts of

the burglary charge, less proof of an intent to commit theft or assault. See id. at 446. Thus, there is

some evidence in the record that could have allowed a rational jury to determine that Washington

lacked the required mens rea for burglary and was guilty only of criminal trespass. See id. The trial

court erred in refusing Washington’s request for that instruction. See id. at 446-48. We sustain

Washington’s second issue on appeal.3




       2
          Washington testified that he kicked in the door because he was upset that Sanders was
seeing someone new, saying, “I just wanted my family back. That’s it. I didn’t want nothing else.”
He also testified that he did not touch Sanders and that he “walked in, said what I had to say, and I
left.” He denied taking or trying to take her phone and also said he was not aware that Sanders no
longer wanted him at the house. The State asked him why he went to confront Sanders, and he said,
“I just went and told her . . . don’t be with him anymore.”
       3
           Due to our resolution of his second issue, we need not consider Washington’s first issue.

                                                  4
                                            Conclusion

               Because we agree with Washington that on this record he was entitled to an

instruction on the lesser-included offense of criminal trespass, we reverse the trial court’s judgment

and remand the cause for a new trial.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Goodwin and Field

Reversed and Remanded

Filed: August 29, 2013

Do Not Publish




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