Opinion issued October 23, 2018




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-17-00159-CR
                            ———————————
                       JESSE JUDE CARTER, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Case No. 1517090


                        MEMORANDUM OPINION

      Appellant, Jesse Jude Carter, was charged with burglary of a habitation,

enhanced with two prior felony convictions for theft and assault of a public servant.1



1
      TEX. PENAL CODE ANN. § 30.02 (West 2018).
A jury found appellant guilty of the charged offense and, pursuant to a punishment

agreement, appellant was sentenced to twenty-five years’ confinement. In three

points of error, appellant contends that the trial court erred in (1) denying his motion

to suppress; (2) denying his request for a jury instruction on criminal trespass; and

(3) assessing a $35 summoning witness fee in the bill of costs. We affirm.

                                     Background

       The complainant, Theresa Williams, operates a transitional living facility in

her home to help inmates transition their lives. The thirty-unit facility is fenced,

locked twenty-four hours a day, and accessible only to tenants who have a key.

       In the early morning hours of July 16, 2016, Williams awoke to hear someone

banging on her front door. When Williams opened her bedroom door, she saw

appellant inside her house. Williams testified that she attempted to get appellant out

of her house, and that he began pushing her toward her bedroom and grabbed her.

When William screamed for help, appellant said, “[S]hush, shush. They after me.

They gonna get me.” During the struggle, Williams fell and injured her knee.

       Donald Antwine, one of Williams’s tenants, heard Williams scream. When

he entered the house, he saw that someone had Williams “wrapped up, grabbed []

real tight.” Antwine helped remove appellant from the house, and Williams called

911.




                                           2
      Officer Woodrow Tompkins with the Houston Police Department arrived at

the scene eleven minutes later and saw appellant walking down the street while

someone yelled, “that’s him, that’s him,” and pointed at appellant.          Officer

Tompkins told appellant to freeze, handcuffed him, and put him in the back of the

patrol car. Officer Tompkins testified that appellant was “very nonchalant, very

passive,” and that he appeared to be on drugs. Williams, who was trembling and

crying, told the officer what had happened.

      Officer Ezminda Gomez with the Houston Police Department arrived at the

scene, gathered information from Officer Tompkins, Williams, and Antwine, and

placed appellant in the back of her patrol car. When the prosecutor asked Officer

Gomez if appellant made any statements while in the back of the patrol car, trial

counsel objected and made an oral motion to suppress appellant’s statements to the

officer. Outside the presence of the jury, Officer Gomez testified that appellant was

upset at being detained in the back of the patrol car, and that he was cursing and

talking out loud. Officer Gomez testified that appellant voluntarily stated that “he

wasn’t welcome there, to the residence of the complainant” and that “he went in

there and did assault her.” Officer Gomez stated that she did not ask appellant any

questions and that she did not read appellant his Miranda rights.

      At the conclusion of the questioning, the trial court denied the motion to

suppress and made the following findings on the record:

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             Specifically, for the record, I find that the defendant was under
      arrest at the time the statements were made. I find that the Miranda
      warnings were not given. I find that the statements were not the result
      of custodial interrogation, that they were spontaneously given, not in
      response to any questioning.

            And although the defendant appeared to have been on drugs, the
      content of the statement—statements sound very coherent to me, and I
      do not find that his intoxication made the statements involuntary.
      Therefore, I find that they were freely and voluntarily given.

      During the charge conference, trial counsel requested that a criminal trespass

instruction be included in the charge. The trial court denied the request. The jury

subsequently found appellant guilty of burglary of a habitation. Pursuant to a

punishment agreement, appellant was sentenced to twenty-five years’ confinement.

                              Appellant’s Statements

      In his first point of error, appellant contends that the trial court erred in

admitting the statements he made while in the back of the patrol car.

   A. Standard of Review

      A trial court’s ruling on a motion to suppress evidence will not be set aside

unless there is an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996) (en banc); Taylor v. State, 945 S.W.2d 295, 297 (Tex. App.—

Houston [1st Dist.] 1997, pet. ref’d). When reviewing the trial court’s ruling on a

motion to suppress, we view the evidence in the light most favorable to the trial

court’s ruling. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We

must uphold the trial court’s ruling if it is supported by the record and correct under
                                          4
any theory of law applicable to the case. State v. Stevens, 235 S.W.3d 736, 739–40

(Tex. Crim. App. 2007).

   B. Applicable Law

      “[T]he prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effective to secure the privilege

against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602,

1612 (1966); see also Alvarado v. State, 853 S.W.2d 17, 20 (Tex. Crim. App. 1993)

(en banc). Texas Code of Criminal Procedure article 38.22 generally precludes the

use of statements that result from custodial interrogation, absent compliance with its

procedural safeguards. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2 (West

2018); Shiflet v. State, 732 S.W.2d 622, 623 (Tex. Crim. App. 1985) (en banc).

Section 5 of article 38.22 specifically exempts statements that do not “stem from

custodial interrogation,” statements that are “res gestae of the arrest or of the

offense,” and all voluntary statements, whether or not they result from custodial

interrogation. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5 (West 2018); Shiflet, 732

S.W.2d at 623.

      “Interrogation” under Miranda refers not only to express questioning, but also

to any words or actions on the part of the police that the police should know are

reasonably likely to elicit an incriminating response from the individual under

                                          5
suspicion. See Rhode Island v. Innis, 446 U.S. 291, 299–302, 100 S. Ct. 1682, 1689–

90 (1980); see also Morris v. State, 897 S.W.2d 528, 531 (Tex. App.—El Paso 1995,

no pet.). When an accused in custody spontaneously volunteers information that is

not in response to earlier interrogation by authorities, the statement is admissible

even though not recorded because it is not the product of custodial interrogation.

See Stevens v. State, 671 S.W.2d 517, 520 (Tex. Crim. App. 1984) (en banc); see

also Warren v. State, 377 S.W.3d 9, 17 (Tex. App.—Houston [1st Dist.] 2011, pet.

ref’d). Thus, if appellant’s statements do not stem from custodial interrogation,

neither Miranda nor article 38.22 requires their suppression. See Morris, 897

S.W.2d at 531 (citing Galloway v. State, 778 S.W.2d 110, 112 (Tex. App.—Houston

[14th Dist.] 1989, no pet.)).

   C. Analysis

      The trial court found that appellant was in custody at the time he made his oral

statements to Officer Gomez. Appellant does not contend that his statements—that

“he wasn’t welcome there, to the residence of the complainant” and “he went in there

and did assault her”—were the product of custodial interrogation. Rather, he

contends that “[t]he officer chose to let [him] implicate himself when she could

easily have read him his rights.” He argues that, although the law finds such a delay

acceptable, it is inherently wrong.




                                          6
      There is no requirement that Miranda warnings be given immediately but only

that they be given prior to custodial interrogation. See Innis, 446 U.S. at 300–01,

100 S. Ct. at 1689–90. Further, the record does not support appellant’s assertion that

the officers intentionally delayed issuing Miranda warnings. Instead, the record

shows only that appellant was transferred from one patrol car to another while the

officers gathered information from the complainant, the witness, and the first officer

to arrive at the scene. Because the evidence demonstrates that appellant made the

statements voluntarily, and not in response to questioning by any officer or any

words or actions they should have known were reasonably likely to elicit an

incriminating response, the trial court did not abuse its discretion in denying

appellant’s motion to suppress the statements on the grounds that he did not receive

Miranda warnings or statutory warnings. See id.; see also Camarillo v. State, 82

S.W.3d 529, 535–36 (Tex. App.—Austin 2002, no pet.) (concluding defendant’s

statement was not product of custodial interrogation where officer merely identified

himself as officer who obtained arrest warrants when appellant immediately made

his unsolicited statement); Lam v. State, 25 S.W.3d 233, 240 (Tex. App.—San

Antonio 2000, no pet.) (holding trial court did not abuse its discretion in admitting

into evidence defendant’s volunteered statement where defendant initiated

conversation by asking officer about his case and blurted out statement in response




                                          7
to officer’s attempt to change topic of conversation). We overrule appellant’s first

point of error.

                              Lesser-Included Offense

      In his second point of error, appellant contends that the trial court erred in

denying his request to submit to the jury a lesser-included offense instruction on

criminal trespass.

   A. Standard of Review and Applicable Law

      Article 37.08 of the Texas Code of Criminal Procedure provides that “[i]n a

prosecution for an offense with lesser included offenses, the jury may find the

defendant not guilty of the greater offense, but guilty of any lesser included offense.”

TEX. CODE CRIM. PROC. ANN. art. 37.08 (West 2006). We apply a two-step analysis

to determine whether an instruction on a lesser-included offense should be included

in the jury charge. See State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013)

(citing Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007)).

      First, we compare the elements of the offense as charged in the indictment or

information with the elements of the asserted lesser-included offense. See id. This

step is a question of law and does not depend on evidence adduced at trial. See id.

An offense is a lesser-included offense of the charged offense if the indictment for

the greater-inclusive offense either (1) alleges all of the elements of the

lesser-included offense, or (2) alleges elements plus facts from which all of the

                                           8
elements of the lesser-included offense may be deduced. See TEX. CODE CRIM.

PROC. ANN. art. 37.09(1) (West 2006). If the elements of the lesser-included offense

can be deduced from facts alleged in the indictment, they need not be pled in the

indictment. Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (per

curiam). Second, we consider “whether a rational jury could find that, if the

defendant is guilty, he is guilty only of the lesser offense.” Meru, 414 S.W.3d at

162–63. Under this step, we determine whether the evidence presented at trial raised

a fact issue as to whether the defendant was guilty of only the lesser offense. See id.

at 163.

   B. Analysis

   The information alleged as follows:

      [Appellant], heretofore on or about July 16, 2016, did then and there
      unlawfully without the effective consent of the owner, namely, without
      any consent of any kind, intentionally enter a habitation owned by
      THERESA WILLIAMS, a person having greater right to possession of
      the habitation than [appellant], and commit and attempt to commit
      assault of THERESA WILLIAMS.

      We must first determine whether the information alleges (1) all of the

elements of criminal trespass, or (2) elements and facts from which all of these

elements can be deduced. The statutory elements of burglary of a habitation, as

alleged in the information, are that (1) appellant, (2) intentionally entered a

habitation owned by Williams, (3) without her effective consent, and (3) committed

and attempted to commit assault of Williams.          See TEX. PENAL CODE ANN.
                                          9
§ 30.02(a)(3) (West Supp. 2018). For the purposes of section 30.02, “‘enter’ means

to intrude: (1) any part of the body; or (2) any physical object connected with the

body.” TEX. PENAL CODE ANN. § 30.02(b)(1)–(2) (West Supp. 2018). A person

commits criminal trespass “if the person enters or remains on or in property of

another, including . . . a building . . . without effective consent and the person: (1)

had notice that the entry was forbidden; or (2) received notice to depart but failed to

do so.” TEX. PENAL CODE ANN. § 30.05(a) (West Supp. 2018). For the purposes of

section 30.05, “‘[e]ntry’ means the intrusion of the entire body.” TEX. PENAL CODE

ANN. § 30.05(b)(1) (West Supp. 2018).

      In State v. Meru, the Texas Court of Criminal Appeals considered the

differences in these definitions of “entry” in a case involving an indictment that

alleged only that the defendant entered a building with intent to commit theft,

without alleging the manner of entry. 414 S.W.3d at 163–64. The Court determined

that “[b]ecause criminal trespass requires proof of greater intrusion than burglary,

the divergent definitions of ‘entry’ will generally prohibit criminal trespass from

being a lesser-included offense of burglary.” Id. Thus, only in cases in which the

State has alleged facts in its burglary information that “include the full-body entry

into the habitation by the defendant” is an instruction on criminal trespass as a

lesser-included offense warranted. Id. at 164. When the information alleges only

that an “entry” was made, and does not allege whether the entry was full or partial,

                                          10
“an instruction on criminal trespass as a lesser-included offense would be

prohibited.” Id. at 164 n.3. The Court in Meru concluded that because the State’s

indictment did not allege a “full-body entry,” and instead only charged the defendant

with burglary by “entering a habitation without the effective consent of the owner

with intent to commit theft,” the defendant had not met the first prong to support the

submission of a lesser-included offense instruction on criminal trespass. See id. at

161, 164.

      As in Meru, the information in this case, by simply alleging that appellant

entered the building, does not allege the entry element of criminal trespass. Further,

the information does not allege additional facts from which we can deduce this

element of criminal trespass. See id. at 164. Appellant acknowledges that, under

Meru, he is not entitled to an instruction on criminal trespass but asks that this Court

reconsider that decision.2 As an intermediate court of appeals, we are bound to

follow the precedent of the Texas Court of Criminal Appeals. Gonzales v. State, 190

S.W.3d 125, 130 n.1 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d); TEX. CONST.

art. V., § 5(a) (providing that Court of Criminal Appeals is final authority for

interpreting criminal law in Texas).



2
      In urging us to reconsider, appellant cites Justice Alcala’s concurring opinion in
      Meru, explaining why the entry element under criminal trespass is the functional
      equivalent of the entry element for burglary. See State v. Meru, 414 S.W.3d 159,
      167 (Tex. Crim. App. 2013) (Alcala, J., concurring).
                                          11
      The first prong of the lesser-included-offense analysis has not been met

because the “entry” element for criminal trespass requires more, not the same or less,

proof than entry for burglary, and no additional facts have been alleged that would

support a deduction that the “entry” element for criminal trespass is satisfied. See

Meru, 414 S.W.3d at 164. Because the first prong has not been satisfied, we need

not determine whether, based on the evidence at trial, a rational jury could find that

appellant is guilty only of criminal trespass. See id. We overrule appellant’s second

point of error.

                         Constitutionality of Court Cost

      In his third point of error, appellant challenges the constitutionality of article

102.011(a)(3) of the Texas Code of Criminal Procedure.

      Article 102.011 provides, in relevant part, that “[a] defendant convicted of a

felony or a misdemeanor shall pay the following fees for services performed in the

case by a peace officer,” including “$5 for summoning a witness[.]” TEX. CODE

CRIM. PROC. ANN. art. 102.011(a)(3) (West Supp. 2018); see also Ramirez v. State,

410 S.W.3d 359, 366 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“[W]e

construe the statute to require a $5 fee for each witness summoned each time the

witness is summoned.”). The bill of costs in appellant’s case includes a $35 charge

for “Summoning Witness/Mileage.”




                                          12
      Appellant argues that subsection (a)(3) of article 102.011 is facially

unconstitutional because the court cost is placed in the county’s general revenue fund

and is not expended for a criminal justice purpose and, therefore, renders the court a

tax gatherer in violation of the Texas Constitution’s Separation of Powers clause.3

See TEX. CONST. art. II, § 1. This Court has previously considered, and rejected, this

argument in similar appeals. See Allen v. State, __ S.W.3d __, __, 2018 WL

4138965, at *8–9 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, no pet. h.)

(rejecting argument that article 102.011(a)(3) and (b) are facially unconstitutional

because they violate Texas Constitution’s separation-of-powers clause); see also

Payne v. State, No. 01-16-00977-CR, 2018 WL 4190047, at *5–6 (Tex. App.—

Houston [1st Dist.] Aug. 31, 2018, no pet. h.) (mem. op., not designated for

publication) (same). Accordingly, we reject appellant’s argument challenging the

constitutionality of article 102.011(a)(3) for the reasons articulated in those opinions.


3
      Article II, section 1, of the Texas Constitution provides:

             The powers of the Government of the State of Texas shall be
             divided into three distinct departments, each of which shall be
             confided to a separate body of magistracy, to wit: Those which
             are Legislative to one; those which are Executive to another,
             and those which are Judicial to another; and no person, or
             collection of persons, being of one of these departments, shall
             exercise any power properly attached to either of the others,
             except in the instances herein expressly permitted.

      TEX. CONST. art. II, § 1.


                                            13
See Allen, 2018 WL 4138965, at *8–9; Payne, 2018 WL 4190047, at *5–6. We

overrule appellant’s third point of error.

                                     Conclusion

      We affirm the trial court’s judgment.




                                                  Russell Lloyd
                                                  Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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