                                 NO. 07-07-0432-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL B

                                 MAY 28, 2008
                        ______________________________

                            JOE CHRISTIAN SALAZAR,

                                                            Appellant

                                          v.

                              THE STATE OF TEXAS,

                                                    Appellee
                      _________________________________

            FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

                  NO. 55,146-C; HON. ANA ESTEVEZ, PRESIDING
                       _______________________________

                                    Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Joe Christian Salazar appeals his conviction for burglary of a building. His sole

issue concerns the trial court’s decision denying his request for an instruction on the

offense of criminal trespass. The latter allegedly was a lesser-included offense of the

crime for which he was indicted. We disagree and affirm the judgment.

      Law

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

methodology used in determining whether an accused is entitled to an instruction on a
lesser-included offense has changed. The test still consists of two elements, and the latter

still focuses on whether “evidence [appears of record] that supports giving the instruction

to the jury.” Id. at 536. The former element differs, however. Now we are to compare “the

elements of the offense as they are alleged in the indictment or information with the

elements of the potential lesser-included offense.” Id. at 535-36. In doing so, “we do not

consider the evidence that was presented at trial.” Id. at 536. Instead, “we consider only

the statutory elements [of the crimes charged] as they were modified by the particular

allegations in the indictment . . . .” Id. Then, we ask whether “the elements of the lesser

offense [are] ‘established by the proof of the same or less than all the facts required to

[establish] the commission of the offense charged.’” Id. (quoting TEX . CODE CRIM . PROC .

ANN . art. 37.09 (Vernon 2006)).     If they are not, then a trial court acts properly in

withholding the instruction. Id. at 536-37.

       Application of Law

       Here, appellant was indicted for burglary of a habitation. Furthermore, through the

indictment, the State alleged that he “intentionally or knowingly entered a habitation,

without the effective consent of Linda Pohlmeier, the owner of the habitation, and

attempted to commit or committed theft of property.” Missing from this allegation is any

statutory or factual allegation concerning whether appellant knew that the entry was

forbidden or received notice to depart but did not. This is of import for one or the other is

a prerequisite to conviction for criminal trespass. TEX . PEN . CODE ANN . §30.05(a)(1) & (2)

(Vernon Supp. 2007) (defining criminal trespass as entering or remaining on or in property

of another without effective consent or entering or remaining in a building of another



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without effective consent and having notice that the entry was forbidden or receiving notice

to depart but failing to do so).

        That the indictment before us may have alluded to the absence of the owner’s

“effective consent” is of no import in this instance. This is so for several reasons. First, the

crime of criminal trespass requires both the absence of effective consent and either notice

that entry was forbidden or that one’s presence is no longer welcomed. Id. To equate the

two, as appellant suggests at bar, is to effectively nullify a portion of the penal statute, and

that we will not do. Second, while it may be that someone is not welcomed onto property,

that does not necessarily mean that he knew of that fact. Not only can sentiment be

hidden but also changed. So, not until the accused becomes aware of the owner’s

sentiment and then acts or refuses to act does he commit criminal trespass.

        In sum, the elements or facts necessary to convict one of criminal trespass were

missing from the charge of burglary as modified by the indictment at bar. Consequently,

the former was not a lesser-included offense of the latter, and the trial court did not err in

refusing to treat it as one.1

        We overrule the issue and affirm the judgment.



                                                         Brian Quinn
                                                         Chief Justice

Publish.




        1
        W e recognize that in Day v. State, 532 S.W .2d 302 (Tex. Crim . App. 1975), the Court of Crim inal
Appeals found crim inal trespass to be a lesser-included offense of burglary with intent to com m it theft.
However, in Hall, the Court overruled Day to the extent that it conflicts with Hall.

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