                                     NO. 07-08-0479-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                             PANEL D

                                        MAY 15, 2009

                           ______________________________


                                  BOBBY WAYNE TERRY,

                                                            Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                            Appellee

                         _________________________________

               FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                      NO. 57653-A; HON. HAL MINER, PRESIDING

                           _______________________________

                                  Abate and Remand
                          ________________________________

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

       After a jury trial, appellant Bobby Wayne Terry was convicted of the offense of

burglary of a building. Punishment was assessed by the jury at two years confinement in

a state jail facility and a fine of $1800.
        Appellant’s counsel has filed a motion to withdraw, together with an Anders’ brief1

wherein he certifies that, after diligently searching the record, he has concluded that

appellant’s appeal is without merit. Along with his brief, he has filed a copy of a letter sent

to appellant regarding that brief. By letter dated February 25, 2009, this court notified

appellant of his right to file his own response by March 27, 2009, if he wished to do so. To

date, no response has been received.

        In compliance with the principles enunciated in Anders, appellate counsel discussed

two potential areas for appeal. One involves the trial court’s denial of a request to remove

a reference to the Pardons and Parole Board from the jury charge on punishment. We

agree that said issue does not involve reversible error.

        In the other potential issue, appellate counsel contends the trial court did not err in

refusing to include a lesser-included offense instruction on criminal trespass in the jury

charge during the guilt/innocence phase. In arriving at that conclusion, counsel relies

solely on this court’s opinion in Salazar v. State, 259 S.W.3d 232, 234 (Tex. App.–Amarillo

2008, pet. granted) in which we held that criminal trespass was not a lesser-included

offense of burglary of a habitation because the indictment in that case did not allege that

the defendant had notice that entry was forbidden.2 However, the Court of Criminal

Appeals has granted a petition for discretionary review in that case so the matter is not

resolved. Moreover, the question at bar is whether criminal trespass is a lesser-included

offense of burglary of a building as opposed to a habitation. The Court of Criminal Appeals


        1
            See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

        2
        Such notice is an elem ent of crim inal trespass. See T EX . P EN AL C OD E A N N . §30.05(a)(1) (Vernon
Supp. 2008).

                                                       2
held in Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975), that the notice

requirement was satisfied by reference to a building not then open to the public because

such a place was obviously designed to exclude an intruder. Although we noted in Salazar

that Day has been overruled by Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), to

the extent that it conflicts with Hall, we also noted in our opinion on rehearing that the

Penal Code defines a building as an enclosed structure while a habitation is not so defined.

Salazar v. State, 259 S.W.3d at 235. Therefore, it is at least arguable in this case that

criminal trespass is a lesser-included offense of burglary of a building and there is some

evidence that appellant is guilty only of the lesser offense.3

        Accordingly, we grant counsel’s motion to withdraw and abate the appeal and

remand to the 47th District Court of Potter County, Texas. See Stafford v. State, 813

S.W.2d 503, 511 (Tex. Crim. App. 1991). Upon remand, the trial court shall appoint a

different attorney to represent appellant in this appeal. The trial court shall further order

the newly appointed counsel to file an appellant’s brief, pursuant to the Texas Rules of

Appellate Procedure, developing the aforementioned arguable grounds and all other

grounds that might support reversal or modification of the judgment. The deadline for filing

the appellant’s brief with the clerk of this appellate court is June 30, 2009, unless abated

by this court. Thereafter, any responding brief which the State may care to submit shall

be filed within 30 days after the filing of the appellant’s brief.




        3
        Appellant was found by police in the building but told a police officer that he worked for that business
and was there to collect m oney he was owed.

                                                       3
       Next, the trial court shall cause the name, address, and state bar number of the

newly appointed counsel to be included in a supplemental transcript. That transcript shall

be filed by the trial court with the clerk of this court on or before June 1, 2009.

       It is so ordered.



                                                  Per Curiam
Do not publish.




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