                                 NUMBER 13-12-00223-CR

                                    COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                             CORPUS CHRISTI - EDINBURG


THE STATE OF TEXAS,                                                                     Appellant,

                                                  v.

MARK MERU,                                                                               Appellee.


                      On appeal from the 117th District Court
                            of Nueces County, Texas.


                                 MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Benavides and Perkes
            Memorandum Opinion by Chief Justice Valdez
       The State appeals from the trial court’s order granting appellee, Mark Meru’s,

motion for new trial.1 We affirm.

                                          I. BACKGROUND




       1
           The State is entitled to appeal an order granting a new trial. See TEX. CODE CRIM. PROC. ANN.
art. 44.01(a)(3) (West Supp. 2011).
       Appellee was indicted for burglary by entering a habitation without the effective

consent of the owner and with intent to commit theft.2 See TEX. PENAL CODE ANN. §

30.02(a)(1) (West 2011) (burglary of a habitation). Appellee was convicted by a jury,

and the trial court sentenced him to 25 years in prison. Subsequently, appellee filed a

timely motion for new trial, complaining of jury misconduct and the trial court’s error in

refusing to give the jury his requested instruction on the lesser included offense of

criminal trespass. See TEX. PENAL CODE ANN. § 30.05(a)(1) (West Supp. 2011) (criminal

trespass). The trial court granted the motion for new trial based on the omission of the

requested jury instruction.            The court found against appellee on his claim of jury

misconduct. This appeal ensued.

                                                 II. ANALYSIS

A.     Applicable Law and Standard of Review

       A trial judge does not have authority to grant a new trial unless the first

proceeding was not in accordance with the law. State v. Herndon, 215 S.W.3d 901, 907

(Tex. Crim. App. 2007). He cannot grant a new trial on mere sympathy, an inarticulate

hunch, or simply because he personally believes that the defendant is innocent or

“received a raw deal.” Id. The legal grounds for which a trial court must grant a new

trial are listed in Rule 21.3, but that list is illustrative, not exclusive. Id. (citing TEX. R.

APP. P. 21.3). A trial court may grant a motion for new trial on other legal grounds as

well. Id.

       Although not all of the grounds for which a trial court may grant a motion for new

trial need be listed in statute or rule, the trial court does not have discretion to grant a

new trial unless the defendant shows that he is entitled to one under the law. Id. To
       2
            Appellee has not filed a brief with this Court.

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grant a new trial for a non-legal or legally invalid reason is an abuse of discretion. Id.

The test for abuse of discretion is as follows:

        [It] is not whether, in the opinion of the reviewing court, the facts present
        an appropriate case for the trial court's action; rather, it is a question of
        whether the trial court acted without reference to any guiding rules or
        principles, and the mere fact that a trial court may decide a matter within
        its discretionary authority differently than an appellate court does not
        demonstrate such an abuse.

Id. at 907–08.

B.      Discussion

        The State contends that appellee was not entitled to an instruction on the lesser-

included offense of criminal trespass and, therefore, the trial court’s granting of

appellee’s motion for new trial on that basis was an abuse of discretion.

        The determination of whether a lesser-included-offense instruction requested by

a defendant must be given requires a two-step analysis: “(1) Is the requested charge

for a lesser-included offense of the charged offense? (2) Is there trial evidence that

supports giving the instruction to the jury?” Rice v. State, 333 S.W.3d 140, 144 (Tex.

Crim. App. 2011).         The first step of the analysis asks whether the lesser-included

offense is included within the proof necessary to establish the offense charged. Id.

This is a question of law, and it does not depend on the evidence to be produced at trial.

Id.

        According to the State, criminal trespass3 is not a lesser-included offense of

burglary of a habitation4 because a criminal trespass requires that the entire body of the


        3
           See TEX. PENAL CODE ANN. § 30.05(a)(1) (“A person commits [the] offense [of criminal trespass]
if the person enters or remains on or in property of another, including residential land, agricultural land, a
recreational vehicle park, a building, or an aircraft or other vehicle, 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.”).


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defendant intruded into the habitation,5 whereas a burglary is complete even on a partial

intrusion.6 Thus, according to the State, criminal trespass cannot be a lesser-included

offense of burglary of a habitation because criminal trespass requires different and

greater evidence than burglary of a habitation.

        The State concedes that the Texas Court of Criminal Appeals has held that

“[c]riminal trespass can be a lesser-included offense of burglary of a habitation.” Goad

v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). In doing so, the Court noted that

criminal trespass required less proof than burglary of a habitation because it did not

require proof of specific intent to commit theft. Id. We believe that this precedent is

controlling for purposes of this appeal.

        Although the State is correct in noting that the Court of Criminal Appeals did not

address the specific contention raised in this appeal, we believe the Court’s holding is

nonetheless controlling. We reach this conclusion based on the fact that in both this

case and in Goad the indictment did not modify the essential elements of the offenses.

Thus, the analysis in Goad which compared the elements of the offenses would be the

same in this case, as would be the result of the analysis. See Rice, 333 S.W.3d at 144

(“[T]he elements and the facts alleged in the charging instrument are used to find

lesser-included offenses.”). As the Court of Criminal Appeals has explained:

        An offense is a lesser-included offense of another offense . . . if the
        indictment for the greater-inclusive offense either: 1) alleges all of the

        4
            See TEX. PENAL CODE ANN. § 30.02(a)(1) (“A person commits [the] offense [of burglary] if,
without the effective consent of the owner, the person . . . enters a habitation, or a building (or any portion
of a building) not then open to the public, with intent to commit a felony, theft, or an assault[.]”).
        5
          See TEX. PENAL CODE ANN. § 30.05(b)(1)–(2) (“For purposes of [burglary of a habitation] . . . ,
‘enter’ means to intrude: (1) any part of the body; or (2) any physical object connected with the body.”).
        6
          See TEX. PENAL CODE ANN. § 30.05(b)(1) (“For purposes of [criminal trespass] . . . ‘[e]ntry’
means the intrusion of the entire body.”).

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       elements of the lesser-included offense or 2) alleges elements plus facts
       (including descriptive averments, such as non-statutory manner and
       means, that are alleged for purposes of providing notice) from which all of
       the elements of the lesser-included offense may be deduced.

Id. (citations omitted).

       Here, the indictment did not modify the element of entry for burglary of a

habitation. The language of the indictment alleged all the elements of the offense of

criminal trespass. Therefore, there is no basis to distinguish this case from the recent

holding of the Texas Court of Criminal Appeals in Goad, where there was also no

indication that the indictment had modified the essential elements of the offense with

respect to entry. See Goad, 354 S.W.3d at 446.

       Accordingly, we turn to the second step of the inquiry, which asks: “Is there trial

evidence that supports giving the instruction to the jury?” Rice, 333 S.W.3d at 144. As

the Court of Criminal Appeals has explained:

       The evidence supports an instruction on a lesser-included offense if it
       permits a rational jury to find the defendant guilty only of the lesser-
       included offense. 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. We consider all of
       the evidence admitted at trial, not just the evidence presented by the
       defendant. The evidence must establish that the lesser-included offense
       is a valid, rational alternative to the charged offense. Anything more than
       a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.
       However, we may not consider the credibility of the evidence and whether
       it conflicts with other evidence or is controverted.

See Goad, 354 S.W.3d at 446–47 (citations, quotations omitted).

       The State argues that the evidence did not support giving the instruction because

the evidence of appellee’s criminal intent was clearly established.         At trial, Andrew

Trevino testified that at around 3:00 p.m., appellee knocked at his door, but Trevino

decided not to let him in because he did not know him. When Trevino then went to use

                                              5
the restroom, he heard a thud. He then proceeded to the front door, found that it had

been broken, and saw appellee walking out to the street. When Trevino called out to

ask why appellee kicked in his door, appellee claimed that someone was “looking in

[Trevino’s] patio, and he was there to scare them off.”

       According to the State, none of the evidence provided a motive for appellee to

break down the door other than intent to commit theft. We disagree. The foregoing

testimony provides evidence of an intent—whether credible or not—other than the intent

to commit theft. We may not consider the credibility of the evidence and whether it

conflicts with other evidence or is controverted. Id. As such, we disagree with the

State’s argument that the evidence did not support submission of the instruction. The

State’s sole issue is overruled.

                                      III. CONCLUSION

       The order of the trial court is affirmed.

                                                          __________________
                                                          ROGELIO VALDEZ
                                                          Chief Justice

Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
25th day of October, 2012.




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