             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00540-CR
     ___________________________

   WARREN GENE KEMP, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 235th District Court
          Cooke County, Texas
      Trial Court No. CR17-00356


    Before Kerr, Birdwell, and Bassel, JJ.
  Memorandum Opinion by Justice Birdwell
                          MEMORANDUM OPINION

      From the outside, it was a house like any other—except, perhaps, for the

disconnected oven on the front porch. Inside, though, the house was brimming with

trash bags, boxes, and bins full of goods. Some of the evidence at trial showed that

when appellant Warren Gene Kemp burglarized the house, no one lived there; the

owner was simply using it for storage while she moved into another house.

      Kemp argued that because the premises were uninhabited and so cluttered as to

be uninhabitable, this was some evidence that he was guilty only of the lesser-included

offense of burglary of a building rather than the greater offense for which he was

indicted: burglary of a habitation. But the trial court denied Kemp’s request for an

instruction on the lesser-included offense. Because there was more than a scintilla of

evidence that affirmatively supported the lesser-included offense, we hold that it was

error to deny the instruction. We therefore reverse and remand.

                                I.     BACKGROUND

      On the afternoon of June 15, 2017, Mary McConnell looked out her window and

saw a man she did not recognize in her neighbor’s backyard. McConnell watched the

man go in and out of her neighbor’s house, and she called police to report a break in.

When police arrived, they shouted for the man to come outside. The man—Kemp—

complied. Kemp was arrested, and he was found with items that belonged to the

property owner. The owner told police that she did not give Kemp consent to enter

her house.

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       Kemp was indicted for burglary of a habitation, a second-degree felony. Tex.

Penal Code Ann. § 30.02(c)(2). But at trial, Kemp argued that if anything, his crime

was the lesser-included offense of burglary of a building, a state-jail felony. Id.

§ 30.02(c)(1). Kemp adduced evidence that at the time of the burglary, the owner had

moved to one of the other houses she owned in town and that she was using the burgled

premises as storage space. Further, Kemp noted the photographs and testimony

suggesting that the interior of the home was packed with stored goods, which he argued

made the home unlivable. Kemp argued that in light of this evidence, the property

should be considered a building but not a habitation. The State countered with

testimony that the owner still slept at the house occasionally, had a bed and clothes

there, and often kept her dog there, among other evidence suggesting that the premises

was still a habitation.

       Kemp requested a jury instruction on the lesser-included offense of burglary of

a building. The trial court denied the request and charged the jury only on burglary of

a habitation. The jury found Kemp guilty as charged, and the trial court assessed

punishment at thirty-five years’ confinement. Kemp appeals the trial court’s refusal of

an instruction on the lesser-included offense.

                                  II.   DISCUSSION

       We analyze two steps to determine whether an appellant was entitled to a lesser-

included-offense instruction:   (1) Are the elements of the lesser-included offense

included within the proof necessary to establish the charged offense’s elements? (2) Is

                                           3
there evidence in the record from which a jury could find the defendant guilty of only

the lesser-included offense? State v. Meru, 414 S.W.3d 159, 161 (Tex. Crim. App. 2013);

Hall v. State, 225 S.W.3d 524, 528, 535–36 (Tex. Crim. App. 2007); Rousseau v. State, 855

S.W.2d 666, 672–73 (Tex. Crim. App. 1993).

       The first step in the lesser-included-offense analysis is a legal question and so

does not depend on the trial evidence. Hall, 225 S.W.3d at 535. An offense is a lesser-

included offense if the indictment for the greater-inclusive offense either alleges all the

lesser-included-offense elements or alleges elements plus facts—including descriptive

averments such as nonstatutory manner and means—from which we can deduce all the

lesser-included-offense elements. Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim.

App. 2009) (op. on reh’g).

       As to the first step, the same predicate offense of burglary underlies both

burglary of a building and burglary of a habitation, which differ only in the nature of

the premises invaded. See Tex. Penal Code Ann. § 30.02(a). Our highest criminal court

has recognized many times that burglary of a building may be a lesser-included offense

of burglary of a habitation. Puente v. State, 320 S.W.3d 352, 357 n.15 (Tex. Crim. App.

2010) (citing Allison v. State, 618 S.W.2d 763, 764–65 (Tex. Crim. App. 1981)); Wilson v.

State, 677 S.W.2d 518, 522 (Tex. Crim. App. 1984); Moss v. State, 574 S.W.2d 542, 545

(Tex. Crim. App. 1978), overruled on other grounds by Garrett v. State, 749 S.W.2d 784 (Tex.

Crim. App. 1986). And here, the State concedes that burglary of a building is a lesser-

included offense.

                                             4
       But the State argues that Kemp cannot satisfy step two. Under the second step,

the record must contain some evidence that would permit a jury to rationally find that

the appellant is guilty only of the lesser offense. Hall, 225 S.W.3d at 536; Salinas v. State,

163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73. In other

words, the evidence must establish the lesser-included offense as “a valid, rational

alternative to the charged offense.”        Hall, 225 S.W.3d at 536.         This is a fact

determination based on all the evidence presented at trial. Meru, 414 S.W.3d at 163. If

anything more than a scintilla of evidence raises a fact issue of whether the defendant

is guilty only of the lesser offense—regardless of whether the evidence is weak,

impeached, or contradicted—we must conclude that the trial court erred by failing to

give an instruction on the lesser-included offense. See Ritcherson v. State, 568 S.W.3d 667,

677 (Tex. Crim. App. 2018); Hall, 225 S.W.3d at 536.

       “Although this threshold showing is low, it is not enough that the jury may

disbelieve crucial evidence pertaining to the greater offense . . . .” Sweed v. State, 351

S.W.3d 63, 68 (Tex. Crim. App. 2011) (internal quotations omitted). There must be

some evidence directly germane to the lesser-included offense for the finder of fact to

consider before an instruction on a lesser-included offense is warranted. Id. This

standard may be satisfied if some evidence refutes or negates other evidence

establishing the greater offense or if the evidence presented is subject to different

interpretations. Id.



                                              5
       The question, therefore, is whether there is some evidence directly germane to

whether the burgled property was merely a building and not a habitation. A “building”

is any enclosed structure intended for use or occupation as a habitation or for some

purpose of trade, manufacture, ornament, or use. Tex. Penal Code Ann. § 30.01(2). As

relevant here, a “habitation” is defined as a structure or vehicle that is adapted for the

overnight accommodation of persons. Id. § 30.01(1). What makes a structure suitable

or not suitable for overnight accommodation is a complex, subjective, factual question

fit for a jury’s determination. Salazar v. State, 284 S.W.3d 874, 877 (Tex. Crim. App.

2009) (quoting Blankenship v. State, 780 S.W.2d 198, 209 (Tex. Crim. App. 1989) (op. on

reh’g)). We consider relevant factors such as whether someone was using the structure

or vehicle as a residence at the time of the offense; whether the structure or vehicle

contained bedding, furniture, utilities, or other belongings common to a residential

structure; and whether the structure is of such a character that it was probably intended

to accommodate persons overnight (e.g. house, apartment, condominium, sleeping car,

mobile home, or house trailer). Blankenship, 780 S.W.2d at 209. All of these factors are

relevant; none are essential or necessarily dispositive. Id.

       Viewed through the lens of these factors, some of the record evidence suggests

that the property was not a habitation in the eyes of the criminal law. In her 911 call,

McConnell explained that nobody lived next door. The property owner lived elsewhere,

McConnell told the 911 operator, and a grey, older-looking car sat untouched in the

driveway. Photographs showed that the grass was overgrown—indeed, Kemp initially

                                             6
told officers that he was there to cut the grass.1 Other photographs showed that the

living room, dining room, and back room were overflowing with goods, to the point

that much of the floorspace was choked and impassable.2 The owner agreed that she

asked officers not to photograph the other rooms in the house, which “may have” been

because she was embarrassed at the greater level of clutter in those rooms. On the

front porch there sat an unused oven in the open air, and the owner’s father explained

that the doorbell had been broken for some time.3 When asked about the last time that

she stayed overnight at the house—whether it had been days, weeks, or months—the

owner said she could not remember and explained that she had several other properties



      1
       Cf. Gordon v. State, No. 03-15-00239-CR, 2016 WL 3753145, at *2 (Tex. App.—
Austin July 8, 2016, pet. ref’d) (mem. op., not designated for publication) (holding
evidence sufficient to support a finding that the house was a habitation in part because
there was evidence that the homeowner “hired a lawn service to mow the lawn every
two weeks”); DiMaggio v. State, No. A14-91-00838-CR, 1992 WL 99568, at *2 (Tex.
App.—Houston [14th Dist.] May 14, 1992, no pet.) (not designated for publication)
(holding that “[d]espite” the evidence concerning overgrown greenery around the
property, the trial court did not err in refusing a defensive instruction concerning
whether the burgled premises was abandoned).
      2
        Cf. Barrera v. State, No. 11-16-00332-CR, 2018 WL 3469550, at *2 (Tex. App.—
Eastland July 19, 2018, no pet.) (mem. op., not designated for publication) (agreeing
that where “the house had been vacant . . . and was being used for storage,” this cut
against a habitation finding); Qualls v. State, No. 11-98-00061-CR, 1999 WL 33747851,
at *2 (Tex. App.—Eastland Aug. 26, 1999, no pet.) (not designated for publication)
(holding the evidence was sufficient to support a habitation finding despite evidence
that the house was temporarily “uninhabitable,” citing other factors that outweighed
this evidence).

      Cf. DiMaggio, 1992 WL 99568, at *2 (reasoning impliedly that a long-broken
      3

window favored a conclusion that the burgled premises were abandoned).

                                           7
around town. Taken together, this proof amounts to more than a scintilla of evidence

that the premises were unoccupied, in low upkeep, and brimming to capacity with

stored goods, and from this evidence, the jury could have rationally concluded that the

property better resembled a building than a habitation. See Ritcherson, 568 S.W.3d at

677.

       In rejoinder, the State cites several forms of contrary evidence that would

support a habitation finding. The property was a residence with plumbing, electricity,

and furnishings. Three witnesses testified that in one sense or another, the owner still

lived at the house: the owner said that she still slept there occasionally; her father

believed that she might have even slept there the night before the burglary; and at some

points during her testimony, McConnell said the owner still lived next door. The owner

also testified that she had a bed and clothes there, kept the utilities current, and boarded

her dog in the back yard. We agree that a jury might find this evidence compelling.

       But for present purposes, all that this evidence establishes is that the crime and

its setting were subject to differing interpretations. See Sweed, 351 S.W.3d at 68. It is

not our role to decide which interpretation was more reasonable, even if the State’s

evidence was “overwhelming.”4 See Wortham v. State, 412 S.W.3d 552, 558 (Tex. Crim.


       The State relies on Hicks v. State to dissuade us from finding that there is
       4

evidence to support the lesser-included burglary offense. 204 S.W.3d 505, 506 (Tex.
App.—Amarillo 2006, no pet.) (mem. op.). In Hicks, a building sat uninhabited, empty
of furniture and personal items, with the heater disconnected. Id. The court held that
this “minimal evidence” did not warrant a lesser-included-offense instruction when
contrasted with the contrary evidence: that the owner was attempting to relet the house,

                                             8
App. 2013).     “Resolving conflicts in evidence is the jury’s job, not ours when

determining whether the evidence supports a lesser-included-offense instruction.”

Goad, 354 S.W.3d at 448. It is the jury’s province to decide which parts of this evidence

to believe, and within that province, the jury could have rationally credited the evidence

that the property was a mere building. See Bullock v. State, 509 S.W.3d 921, 929 (Tex.

Crim. App. 2016). Because the evidence established Kemp’s theory as a rational

alternative, the trial court erred in refusing to put that theory before the jury. See Hall,

225 S.W.3d at 536.

       Having found error, we now assess harm. When charge error is preserved at

trial, the reviewing court must reverse if the error caused some harm. Rogers v. State,

550 S.W.3d 190, 191 (Tex. Crim. App. 2018); Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on reh’g). “Some harm” means actual harm and not merely

a theoretical complaint. Rogers, 550 S.W.3d at 191. There is no burden of proof

associated with the harm evaluation. Id. This evaluation entails a review of the whole



which was not only “wired for electricity but also plumbed for water and gas” and had
a “kitchen, bathroom, water heater, heater, and roof.” See id. at 507–08. The Hicks
court appeared to reason that when the State introduced compelling evidence that the
burgled premise was a habitation, this negated and overcame any evidence suggesting
that the structure was simply a building.

      But the Texas Court of Criminal Appeals disapproved this sort of reasoning in
Wortham, which makes clear that it is improper to inquire whether the evidence in favor
of the greater offense “overwhelmed” the evidence supporting the lesser-included
offense. 412 S.W.3d at 558; see Goad v. State, 354 S.W.3d 443, 448 (Tex. Crim. App.
2011) (similar). We therefore decline to rely on Hicks as persuasive authority.

                                             9
record, including the jury charge, contested issues, weight of the probative evidence,

arguments of counsel, and other relevant information. Id. at 192.

      As to the jury charge, the Texas Court of Criminal Appeals has “consistently”

and “routinely” found some harm when, as here, the erroneous denial of a lesser-

included-offense instruction leaves the jury with “the sole option either to convict the

defendant of the greater offense or to acquit him.” Saunders v. State, 913 S.W.2d 564,

571 (Tex. Crim. App. 1995). “[T]he harm from denying a lesser offense instruction

stems from the potential to place the jury in the dilemma of convicting for a greater

offense in which the jury has reasonable doubt or releasing entirely from criminal

liability a person the jury is convinced is a wrongdoer.” Masterson v. State, 155 S.W.3d

167, 171 (Tex. Crim. App. 2005). In this scenario, “‘some’ harm occurs because the

jury was not permitted to fulfill its role as factfinder to resolve the factual dispute

whether the defendant committed the greater or lesser offense.” Saunders, 913 S.W.2d

at 571.

      There is nothing in the contested issues, record evidence, or arguments of

counsel that would give us reason to break from what is otherwise an “essentially

automatic” finding of harm. See Cardona v. State, No. 02-15-00036-CR, 2015 WL

9244829, at *5 (Tex. App.—Fort Worth Dec. 17, 2015, pet. ref’d) (mem. op., not

designated for publication). Indeed, these factors only confirm the harm, because the

denial of this instruction rendered futile one of Kemp’s chief defensive strategies at

trial: to steer the jury toward the lesser-included offense. For instance, the property’s

                                           10
status as a building or habitation was a major theme during Kemp’s opening argument,

and questions on this topic took up roughly two-thirds of Kemp’s cross-examination

of the property owner; the rest of his defensive questions fit into the remaining third.

When the trial court refused the requested instruction, much—if not most—of Kemp’s

efforts at trial went to naught.

       Courts have also concluded that the defendant suffers some harm when the

penalty imposed for the greater offense exceeds the maximum penalty for the lesser-

included offense. See, e.g., Bridges v. State, 389 S.W.3d 508, 513 (Tex. App.—Houston

[14th Dist.] 2012, no pet.) (“[A]ppellant’s conviction for aggravated assault carried a

punishment of 15 years’ imprisonment, whereas the maximum punishment for a

conviction for assault by threat would have been a $500 fine. Thus, appellant suffered

harm.” (citations omitted)). That rule has bearing here, because Kemp was sentenced

to thirty-five years’ imprisonment and a fine of $10,000, whereas the maximum

punishment for the lesser-included offense—a state-jail felony enhanced for two prior

state-jail felonies—would have been ten years in prison and a fine of $10,000. See Tex.

Penal Code Ann. §§ 12.34, 12.425(a), 30.02(c).

       For all these reasons, we hold that the erroneous denial of an instruction on the

lesser-included offense was harmful. We therefore sustain Kemp’s sole issue.




                                          11
                                III.   CONCLUSION

      We reverse the trial court’s judgment and remand the case for a new trial.


                                                     /s/ Wade Birdwell
                                                     Wade Birdwell
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: March 26, 2020




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