Opinion issued October 27, 2016




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-16-00195-CR
                             ———————————
                             JUAN SALAS, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee


                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Case No. 1458018


                           MEMORANDUM OPINION

      A jury convicted appellant, Juan Salas, of burglary of a habitation with

intent to commit assault and assessed punishment at 20 years’ confinement. In his

sole point of error, appellant contends the trial court erred in failing to instruct the

jury on the lesser-included offense of criminal trespass. We affirm.
                                 BACKGROUND

      Appellant and Noelia Ruiz lived together for three years. In November 2014,

Ruiz got a new apartment because they had “problems” and she wanted to move

away from appellant. Appellant convinced her to let him move back in with her,

and she gave him another opportunity. Shortly afterward, in January 2015,

appellant “mistreated” Ruiz, and she threw him out of the apartment again.

      On February 13, 2015, at 1:00 a.m., appellant called Ruiz saying he wanted

to talk, but Ruiz told him, “There is nothing that I want to talk to you about.”

About fifteen minutes later, Ruiz heard a crash through her apartment window. She

went to investigate and saw appellant running into her bedroom, holding a lug

wrench, and threatening to kill her.

      Appellant repeatedly hit her child’s bed with the wrench and told Ruiz he

was going to kill her. Ruiz’s son was scared and curled up in the bed. Ruiz’s

daughter was watching and crying. Appellant dropped the lug wrench, grabbed

Ruiz by her hair, and started hitting her in the face with his fist and slapping her.

He then picked up the lug wrench again and came toward her. He told her, “You’re

going with me because I’m going to kill you and I’m going to take you to Mexico.”

Ruiz was so frightened that she urinated on herself, but she agreed to go with

appellant to try to keep him calm.




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      In the parking lot, Ruiz tried to run away, but appellant grabbed her and

knocked out her teeth. Ruiz lost consciousness. She woke up to paramedics

attending to her.

      Meanwhile, Sergeant Semein with the Houston Police Department had been

dispatched to the burglary in progress. At an intersection, he saw appellant’s car,

which matched the description of the suspect’s vehicle. When Semein pulled up

behind appellant, appellant accellerated to exceed the speed limit. Appellant also

threw a glass bottle out of his window and drove through two red lights without

stopping, even though Semein had turned on his emergency lights. Eventually,

appellant pulled into a private business parking lot. Semein ordered him out of the

car, then arrested him.

      Ruiz was in the passenger seat. She had blood on her lips and face, her lips

were swollen, and she appeared to be in a daze. Semein noticed that appellant had

dried blood on his knuckles. Ruiz was taken to a hospital where she was treated for

the injuries to her head, lips, and mouth.

                    LESSER-INCLUDED-OFFENSE CHARGE

      In his sole point of error, appellant contends the trial court erred in failing to

instruct the jury on criminal trespass as a lesser-included offense of burglary of a

habitation. He argues that the jury was forced to convict him on the higher crime




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as the “only alternative to acquittal,” and, therefore, the trial court’s alleged error

caused him harm.

A.    Standard of Review

      In determining whether a charge on a lesser-included offense is required, we

apply the two-step analysis set forth in Rousseau v. State, 855 S.W.2d 666, 672

(Tex. Crim. App. 1993); see also Feldman v. State, 71 S.W.3d 738, 750 (Tex.

Crim. App. 2002). Under the first prong of Rousseau, a defendant must establish

that the lesser-included offense is included within the proof necessary to establish

the charged offense.     TEX. CODE. CRIM. PROC. ANN. art 37.09 (West 2011);

Feldman, 71 S.W.3d at 750; Rousseau, 855 S.W.2d at 672. Second, the record

must include some evidence that would permit a jury to rationally find that, if

guilty, the defendant is guilty only of the lesser-included offense. Feldman, 71

S.W.3d at 750; Rousseau, 855 S.W.2d at 762.

      In the first prong, we compare the elements of the offense, as charged in the

indictment or information, with the elements of the asserted lesser-included

offense. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013); Hall v.

State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). Texas follows the

“cognate-pleadings approach,” which requires the court to compare the elements of

the offense as alleged in the indictment with the elements of the potential lesser

included offense. See Hall, 225 S.W.3d at 535–36; see also Bowen v. State, 374


                                          4
S.W.3d 427, 431 (Tex. Crim. App. 2012). An offense is deemed a lesser-included

offense of another offense if the indictment for the greater-inclusive offense alleges

either: (1) all of the elements of the lesser included offense; or (2) elements plus

facts from which all of the elements of the lesser-included offense may be

deduced. Meru, 414 S.W.3d at 162. This first prong of the Rousseau test is a

question of law and does not consider the evidence adduced at trial. Hall, 225

S.W.3d at 535.

      If, in our analysis of the first prong of Rousseau, we determine that the

requested lesser offense qualifies as a lesser-included offense, then we address the

second prong and determine “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. In this second prong of Rousseau, we consider whether the evidence

presented at trial raised a fact issue about whether the defendant was guilty of only

the lesser offense. Id. at 163. If so, then a lesser-included-offense instruction must

be given. Id. But, if our analysis under the first prong of Rousseau shows that the

requested lesser offense does not qualify as a lesser-included offense, we need not

proceed to the second prong. Id. at 164.

B.    Analysis

      In Meru, the Texas Court of Criminal Appeals held that, as a general rule,

criminal trespass will not be a lesser-included offense of burglary because trespass


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requires proof of a greater intrusion on the complainant’s property than does

burglary. Id. at 163-64. “Entry” for purposes of criminal trespass requires

“intrusion of the entire body,” while “entry” for purposes of burglary requires only

a partial intrusion by any part of the body or physical object connected with the

body. Id. at 163. As a result, trespass qualifies as a lesser-included offense of

burglary only if “the indictment alleges facts that include the full-body entry into

the habitation by the defendant.” Id. at 164. Because the indictment in Meru did

not “allege[] facts that include the full-body entry into the habitation by the

defendant,” criminal trespass was not a lesser-included offense of burglary. Id. 1

      Like the indictment in Meru, appellant’s indictment does not allege any

specifics regarding the manner in which he entered the complainant’s home, i.e.,

whether the entry was full or only partial.2 And, under the cognate-pleadings

approach, we may not look to the evidence presented at trial to determine the issue.

1
      The court of criminal appeals further noted that “a defendant who committed a
      full-body entry and wants the opportunity for an instruction on criminal trespass
      can file a motion to quash the indictment for lack of particularity[,]” which “would
      force the State to re-file the indictment specifying the type of entry it alleges the
      defendant committed and allow either party to later request an instruction on
      criminal trespass.” Meru, 414 S.W.3d 159, 164 n.3 (Tex. Crim. App. App. 2013).
      Although appellant filed a motion to quash, he did not specifically object to lack
      of particularity regarding entry, nor does he complain on appeal about the trial
      court’s denial of his motion to quash.
2
      The indictment alleges that appellant “did then and there unlawfully with intent to
      commit an assault, enter a habitation owned by NOELIA RUIZ, . . . without the
      effective consent of the Complainant, namely, without any consent of any kind.”
      (Emphasis added). No facts relating to the type of entry are alleged in the
      indictment.
                                            6
See id. at 162 (stating that first step of Rousseau analysis “is a question of law that

does not depend on the evidence presented at trial”). Thus, we conclude that in

this case, as in Meru, criminal trespass is not a lesser-included offense of burglary.

Having determined that appellant does not meet the first prong of the Rousseau test

for lesser-included offenses, we need not address the second prong, and decline to

do so. See Meru, 414 S.W.3d at 164.

      Under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985), we

review a claim of reversible jury charge error by first determining whether there

was an error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim.

App. 2009). Because we have determined that, in this case, criminal trespass is not

a lesser-included offense of burglary, the trial court was not required to include it

in the charge, and its refusal to do so was not error. See id.

      We overrule appellant’s sole point of error on appeal.

                                   CONCLUSION

      We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.

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

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