                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-12-00394-CR


                         CALIP JOSEPH FARMER, APPELLANT

                                            V.

                           THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 251st District Court
                                   Randall County, Texas
                 Trial Court No. 23,104-C, Honorable Ana Estevez, Presiding

                                   December 5, 2013

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

       Calip Joseph Farmer appeals his conviction of attempted burglary of a habitation.

The latter was a lesser included offense submitted to the jury after the trial court

instructed a verdict on the greater offense of burglarizing a habitation. The issues

before us can be placed in two categories. The first group involves the decision to

submit the lesser offense once the trial court acquitted appellant of the greater;

according to appellant, the trial court lost jurisdiction over the proceeding at that point.
The second category involves the failure to submit to the jury another lesser included

offense of criminal trespass. We affirm.

       Loss of Jurisdiction

       According to appellant, “the trial Court‟s granting of the instructed verdict based

on insufficient evidence was an acquittal and terminated the court‟s jurisdiction. Any

further proceedings violated Appellant‟s rights under the United States and Texas

Constitutions.” Though the argument is novel and interesting, we must overrule it.

       Via the indictment, appellant was charged with “intentionally and knowingly,

enter[ing] a habitation, without the effective consent of Victoria Hagins, the owner

thereof, and therein attempted to commit and committed theft.” Upon conclusion of the

State‟s presentation of evidence, appellant moved for an instructed verdict of not guilty

because “[t]here has been no evidence of „therein‟ - - which would have to infer inside

the house – „attempt to commit and commit theft.‟” The prosecutor replied that “I tend to

agree. We, however, have established attempted burglary, and would seek to proceed

and have that submitted to the jury.” The trial court agreed to instruct a verdict on the

burglary charge because there “was no evidence of any type of theft.” It also opted to

submit an instruction on the offense of attempted burglary of a habitation.

       With the advent of Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), the

pleadings test is used to determine the availability of a lesser included offense. Per that

test, the elements and facts alleged in the charging instrument determine the availability

of lesser included offenses. Id. at 535-36. That is, the State may expressly plead the

elements of the lesser offense in the indictment. Or, as said in Hall, “the elements of




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the lesser offense do not have to be pleaded if they can be deduced from the facts

alleged in the indictment.” Id. at 535. Furthermore, the test was adopted to avoid due

process concerns related to the provision of notice about the charges against which the

accused had to defend.      Id.   If the language in the indictment failed to inform the

accused of those charges, then he would be denied due process. See Smith v. State,

297 S.W.3d 260, 267 (Tex. Crim. App. 2009) (stating that the indictment must be

specific enough to inform the defendant of the nature of the accusations against him so

that he may prepare a defense.) Given this, we make the following observation. The

lesser included offense is as much a part of the charging instrument as is the greater

offense.   While the State may not expressly label it a “lesser included offense,” it

necessarily lays within the four corners of the instrument ready to be seen and pursued

by either litigant. If this was not so, then the Court of Criminal Appeals had no reason to

adopt and apply the Hall pleading test.

       The foregoing observation is also of import because it supplies the answer to

appellant‟s question regarding the trial court‟s jurisdiction to continue after granting the

motion for an instructed verdict. Simply put, the prosecution was not over. The court

remained obligated to adjudicate other charges encompassed by the indictment,

assuming the State sought to prosecute them.          One such charge was the lesser

included offense of attempted burglary of a habitation.       That it was such a lesser

included offense of burglarizing a habitation is not something that can be reasonably

denied. See TEX. CODE CRIM. PROC. ANN. art. 37.09(4) (West 2006) (providing that an

offense is a lesser included offense if it consists of an attempt to commit the offense




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charged); see also Hill v. State, 521 S.W.2d 253, 255 (Tex. Crim. App. 1975) (holding

that an attempted burglary is a lesser included offense of burglary). Nor can it be

denied that the State sought to prosecute it.        So, the trial court was obligated to

continue until the claim was disposed of or otherwise adjudicated.

        Amending the Indictment

        Next, appellant contends that the State‟s effort to pursue the lesser offense at bar

constituted an improper attempt to amend the indictment. We overrule this issue as

well.

        The State is free to abandon the greater offense alleged in the indictment and

pursue the lesser included crime. Grey v. State, 298 S.W.3d 644, 650 (Tex. Crim. App.

2009) (stating that “[i]f the State can abandon the charged offense in favor of a lesser-

included offense, there is no logical reason why the State could not abandon its

unqualified pursuit of the charged offense in favor of a qualified pursuit that includes the

prosecution of a lesser-included offense in the alternative”).       More importantly, the

decision to abandon the greater and pursue the lesser does not constitute an

amendment to the indictment. Balentine v. State, No. PD-1102-11, 2012 Tex. Crim.

App. Unpub. LEXIS, 899 at *3-4 (Tex. Crim. App. September 12, 2012); Eastep v. State,

941 S.W.2d 130, 134 (Tex. Crim. App. 1997).        Logically, this is so because it already

exists within the indictment and requires no amendment to propose it.




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       Submitting the Lesser Included Offense of Attempted Burglary

       Appellant also suggests that attempted burglary of a habitation was not a lesser

offense here because the trial court found there was no evidence of either an attempted

or completed theft. We overrule the issue.

       Appellant is mistaken in suggesting that the trial court granted the instructed

verdict upon finding that he committed neither an actual or attempted theft. No such

ubiquitous finding was made. Instead, the trial court said it was “. . . going to grant the

instructed verdict on burglary based on the fact that there was no evidence of any type

of theft.” (Emphasis added.) In other words, the trial court found that appellant did not

commit theft. It said nothing about the absence of evidence regarding any type of

“attempted theft,” as also alleged in the indictment.

       Lesser Included Offense of Criminal Trespass

       Appellant next argues that the trial court should have submitted to the jury the

lesser included offense of criminal trespass. We overrule the issue.

       This contention is premised on the supposition that the trial court instructed a

verdict because there was no evidence of either theft or attempted theft.          But, as

illustrated above, the trial court made no such finding viz attempted theft.     Nor does

appellant cite us to any evidence of record from which a jury could reasonably infer the

absence of an attempted theft by the person who parked in the alley, cut the latch on

the back gate, and broke the backdoor window of the house before leaving. See Goad

v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011) (noting that criminal trespass may




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be a lesser included offense of burglary of a habitation, but there must be some

evidence in the record directly germane to criminal trespass).

       Denying New Trial

       The last issue we address is that concerning the trial court‟s refusal to grant

appellant a new trial. In urging this point, appellant simply incorporated the argument

underlying one or more of the issues we previously addressed. Because we found

none of those issues meritorious, we find no error in the trial court‟s decision to deny a

new trial.

       The judgment is affirmed.



                                                       Brian Quinn
                                                       Chief Justice



Publish.




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