                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00023-CR

JUSTIN RAY HOLLOWAY,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 13-04147-CRF-361


                           MEMORANDUM OPINION


       Justin Holloway appeals from a conviction for the offense of burglary of a

habitation with the intent to commit theft. TEX. PENAL CODE ANN. § 30.02 (West 2011).

Holloway complains that the trial court erred by failing to include a lesser-included

offense of criminal trespass in the jury charge and that he received ineffective assistance

of counsel. Because we find no reversible error, we affirm the judgment of the trial court.

                                  JURY CHARGE ERROR

       Holloway complains that the trial court abused its discretion by refusing to include
a lesser-included offense in the jury charge. In the indictment, Holloway was alleged to

have "intentionally or knowingly enter[ed] a habitation without the effective consent of

Jane Doe or Corey Heitzman, the owner thereof, and attempted to commit or committed

theft of property, to wit: a phone owned by Jane Doe or photographs contained on a

computer owned by Jane Doe." Holloway requested the inclusion of the lesser-included

offense of criminal trespass, which the trial court refused.

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

the two-step analysis set forth in Rousseau v. State. 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, Holloway 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 2006); 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, Holloway is guilty only of the lesser-included offense.

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

       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


Holloway v. State                                                                      Page 2
with the elements of the potential lesser-included offense. See Hall, 225 S.W.3d at 535-36;

see also Bowen v. State, 374 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 Holloway was guilty of only the lesser offense. Id. at 163. If so, then a lesser-

included-offense instruction should have been 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.

       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 requires proof

of a greater intrusion on the complainant's property than burglary does. Id. at 163-64.

"Entry" for purposes of criminal trespass requires "intrusion of the entire body," while


Holloway v. State                                                                        Page 3
"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.

       Like the indictment in Meru, Holloway's indictment does not allege any specifics

regarding the manner in which he entered Heitzman and Doe's residence, i.e., whether

the entry was full or only partial. And, under the cognate-pleadings approach, we may

not look to the evidence presented at trial to determine the issue. 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 Holloway

does not meet the first prong of the Rousseau test for lesser-included offenses, we need

not address the second prong. See Meru, 414 S.W.3d at 164.

       Under Almanza v. State, we review a claim of reversible jury charge error by first

determining whether there was an error in the charge. Almanza v. State, 686 S.W.2d 157,

171 (Tex. Crim. App. 1985); 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


Holloway v. State                                                                     Page 4
therefore, there was no error in the jury charge on this basis. See Barrios, 283 S.W.3d at

353. We overrule issue one.

                           INEFFECTIVE ASSISTANCE OF COUNSEL

       In his second issue, Holloway complains that he received ineffective assistance of

counsel because his trial counsel relied on an invalid defense and failed to present

evidence regarding joint ownership of the cell phone and laptop that were alleged to have

been the basis of the theft allegations.

       To prevail on a claim of ineffective assistance of counsel, Holloway was required

to show that (1) counsel's performance fell below an objective standard of reasonableness

and (2) but for counsel's unprofessional error, there is a reasonable probability that the

result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,

669, 104 S. Ct. 2052, 2055-56, 80 L. Ed. 2d 674 (1984); Mitchell v. State, 68 S.W.3d 640, 642

(Tex. Crim. App. 2002).       It is Holloway's burden to establish both prongs by a

preponderance of the evidence; failure to make a showing under either prong defeats a

claim for ineffective assistance. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011);

see Mitchell, 68 S.W.3d at 642.

       Under the second prong of Strickland, Holloway had to "show that there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim.

App. 2010) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). "The likelihood of a


Holloway v. State                                                                      Page 5
different result must be substantial, not just conceivable." Harrington v. Richter, 131 S. Ct.

770, 792, 178 L. Ed. 2d 624 (2011).

       Our review of the record shows that Holloway has not met his burden to show

that there is a reasonable probability that the result would have been different by a

preponderance of the evidence. As Holloway acknowledges in his brief to this Court,

"[t]he uncontroverted evidence established that appellant entered Heitzman's home

without Heitzman's consent and removed Doe's property." Even if we were to find that

the first prong of Strickland had been met, which we do not, we do not find that Holloway

has met his burden to establish the second prong and therefore, his second issue relating

to his claim of ineffective assistance of counsel is overruled.

                                       CONCLUSION

       Having found no reversible error, we affirm the judgment of the trial court.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 15, 2017
Do not publish
[CR25]




Holloway v. State                                                                       Page 6
