                                   NO. 07-03-0337-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                   OCTOBER 14, 2004

                          ______________________________


                          ROBERT RODRIGUEZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

          FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;

            NO. CR-021-167; HONORABLE H. BRYAN POFF, JR., JUDGE

                         _______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


       Following a plea of not guilty, appellant Robert Rodriquez was convicted by a jury

of burglary of a habitation, enhanced, and sentenced by the trial court to 15 years

confinement. Presenting a sole issue, appellant asserts error by the trial court in refusing

to instruct the jury on the lesser-included offense of criminal trespass. We affirm.
       On October 5, 2002, complainant Jimmy Rojas was taking care of his and Amy

Vela’s child at his home in Hereford while Amy was at work in Amarillo. Jimmy and Amy

shared a past relationship but were no longer romantically involved. In fact, she had just

ended a controlling relationship with appellant a month or two earlier. After work, Amy

drove to Hereford to pick up her child and when she arrived, went inside the house to pack

the child’s belongings. About 15 minutes later, Jimmy and Amy noticed an unfamiliar car

pull into the driveway. The front seat was occupied by two females and when the car door

opened, appellant emerged from the back seat in an angry mood and was pulling his shirt

off as he proceeded toward the house. Amy became scared and went inside the house

and locked the door.


       Once inside, Amy went to the kitchen to call the police and while on the phone, she

heard the door slam open and saw appellant enter. Jimmy testified that appellant came

at him and threatened to “kick [his] ass” and “f___ [him] up.” Appellant punched Jimmy

and threw household items at him. During the altercation, Jimmy found an opportunity to

run outside to get help when he noticed a patrol car driving by and flagged it down. Officer

Luis Zamora was responding to a 911 call from Jimmy’s residence.


       Officer Zamora testified that Jimmy was upset, hysterical, and looked like he had

been in a fight. Jimmy reported to the officer that appellant had assaulted him and was in

the house assaulting Amy. Zamora testified that when he arrived on the scene he heard

a lot of yelling and proceeded inside the house. He noticed that the door frame was


                                             2
broken and the living room was in shambles. He described appellant as being in a rage

and observed him attempting to assault Amy as appellant’s two female friends were trying

to get between them. Zamora directed appellant to stop and place his hands behind his

back. He complied and was handcuffed and escorted to the patrol car.


      Appellant was indicted for burglary of a habitation for entering the residence of

Jimmy Rojas without his consent and with intent to commit an assault against him.

Appellant does not dispute that the evidence established he entered Jimmy’s home without

consent or that he assaulted him. Rather, he argues he was entitled to an instruction on

the lesser-included offense because the evidence did not show he intended to assault

Jimmy, but instead established that he traveled to Hereford to see Amy and confront her

about being at Jimmy’s residence. Thus, he contends the trial court erred in refusing to

instruct the jury on the lesser-included offense of criminal trespass. We disagree.


      The decision whether to include an instruction on a lesser-included offense requires

a two-step analysis. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Cr.App. 1993), cert.

denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993). First, the lesser-included

offense must be included within the proof necessary to establish the offense charged, and

second, there must be some evidence that would permit a rational jury to find that if the

defendant is guilty, he is guilty only of the lesser offense. Id.; see also Tex. Code Crim.

Proc. Ann. art. 37.09 (Vernon 1981).




                                            3
       Burglary of a habitation occurs when a person, without the effective consent of the

owner, enters a habitation with intent to commit felony, theft, or assault. Tex. Pen. Code

Ann. § 30.02(a)(1) (Vernon 2003). A person commits criminal trespass if he enters or

remains on or in property of another without effective consent and had notice that the entry

was forbidden or received notice to depart but failed to do so. § 30.05(a). Criminal

trespass is a lesser-included offense of burglary. See Day v. State, 532 S.W.2d 302, 306

(Tex.Cr.App. 1975); see also Wyble v. State, 764 S.W.2d 927, 929 (Tex.App.–Amarillo

1989, pet. ref’d). Thus, the first prong of Rousseau is satisfied.


       In order to meet the second prong of the Rosseau analysis, there must be some

evidence in the record that appellant is only guilty of criminal trespass. Burglary requires

intent and intent to commit an act may be inferred from the defendant’s conduct and

surrounding circumstances. McGee v. State, 923 S.W.2d 605, 608 (Tex.App.–Houston

[1st Dist.] 1995, no pet.); see also Dues v. State, 634 S.W.2d 304, 305 (Tex.Cr.App. 1982).


       The evidence shows that appellant arrived at Jimmy’s residence in an angry state

of mind and forced the front door open. Jimmy testified that when appellant entered the

house, “he started coming at [him],” made threats, and began punching him. Only after

Jimmy ran out of the house did appellant turn his attention toward Amy.


       Antonia Hernandez, one of the female friends that accompanied appellant to

Hereford on October 5 and who was dating him at the time of trial, testified for appellant.

She claimed appellant was not upset during the drive to Hereford and thought they were

                                             4
going there to meet Amy. She also testified that she did not notice Jimmy’s door was

broken when she entered the residence during the altercation. Officer Zamora testified

that when he questioned Antonia about the incident she was cooperative until he asked

questions about the damage to Jimmy’s front door.


      Considering appellant’s conduct in forcing open the door to Jimmy’s residence and

immediately approaching him while making threats, and the circumstances surrounding the

relationships between Jimmy and Amy and Amy and appellant, the jury could infer that

appellant intended to assault Jimmy. Furthermore, there is no evidence to indicate that

appellant was only guilty of the lesser-included offense of criminal trespass. Thus,

appellant did not satisfy the second prong of Rosseau and the trial court did not err in

refusing to instruct the jury on the lesser-included offense. Appellant’s sole issue is

overruled.


      Accordingly, the judgment of the trial court is affirmed.


                                         Don H. Reavis
                                           Justice


Do not publish.




                                            5
