      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-17-00299-CR



                                     Chano Casarez, Appellant

                                                   v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
        NO. CR-15-0622, HONORABLE WILLIAM R. HENRY, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Chano Casarez was indicted for one count of assault (family

violence/impeding breath), a third-degree felony (Count I), see Tex. Penal Code § 22.01(b)(2)(B),

one count of first-degree-felony burglary of a habitation with intent to commit “Assault Bodily Injury

Family Violence Repeat Offender” (Count II), see id. § 30.02(d), one count of second-degree-felony

burglary of a habitation with intent to commit assault (Count III), see id. § 30.02(c)(2), one count of

stalking, a third-degree felony (Count IV), see id. § 42.072(b), and one count of first-degree-felony

burglary of a habitation with intent to commit “Unlawful Interception, Use or Disclosure of Wire,

Oral or Electronic Communications” (Count V), see id. § 30.02(d). At trial, he pleaded guilty to

Counts I and IV without a plea bargain and pleaded not guilty to the remaining three counts of

burglary of a habitation. The trial court instructed the jury to find Casarez guilty of Counts I and IV,

and the jury so found. The jury also found Casarez guilty of one count of “Assault Bodily Injury
Family Violence Repeat Offender,” which was presented in the jury charge as a lesser-included

offense of Count II, and also found him guilty of Counts III and V. The jury then assessed

punishment at 10 years’ imprisonment for each of Counts I, II, and IV, 20 years’ imprisonment for

Count III, and 22 years’ imprisonment for Count V. The trial court signed judgments of conviction

in accordance with the jury’s verdicts and ordered the sentences to run concurrently.

                In three appellate issues, Casarez contends that the trial court failed to instruct the jury

on “all law” applicable to the case, that the convictions for burglary were not supported by sufficient

evidence, and that the trial court improperly denied instructions on lesser-included offenses on

Counts II, III, and V.1 We will modify the trial court’s judgments of conviction for Counts I and IV

to correct non-reversible clerical error and affirm those judgments as modified. We will also affirm

the remaining judgments of conviction.


                                           BACKGROUND

                At trial, the State presented evidence that, on multiple occasions, Casarez entered the

residence of the complainant, Rachel Martinez, without Martinez’s permission. The State further

provided evidence that, on two such occasions, Casarez assaulted Martinez and that, on another

occasion, he covertly installed an audio recording device near her bed. These accusations formed

the bases for the three counts of burglary of a habitation for which the State charged Casarez. The

defense’s central contention at trial was that Casarez did not commit the burglary offenses for which

he was charged because he was a cotenant of Martinez’s residence and therefore had a right to enter




       1
           Casarez’s appellate brief does not challenge his convictions for Counts I and IV.

                                                    2
the habitation. Furthermore, Casarez’s appellate issues all concern whether he had a right to enter

the residence. Accordingly, our recitation of background facts focuses on the evidence of ownership

and possession of the property.

               Martinez testified at trial that she dated Casarez from 2010 until 2015.            In

February 2013, she and Casarez jointly signed a lease on a house. A copy of this lease was admitted

into evidence and shows that the lease commenced in February 2013 and would terminate in

February 2014. According to Martinez, she alone signed a year-long renewal lease. This document

was also admitted into evidence. It shows Martinez as the sole tenant and provides that the lease

would run from February 2014 to February 2015.

               Martinez also testified that Casarez moved out of the residence in November 2014.

She confirmed that Casarez “still had a couple of baskets of clothes and an old broken-down truck”

at the residence after moving out but testified, “He did not live there. That was my house.” Martinez

testified that she had the locks changed after Casarez moved out and that she had the property owner

install “motion lights” in front of the house. In addition, Martinez testified that, from the time she

moved into the house in 2013 to the time she moved out in 2016, she could “count on one hand how

many times [Casarez] paid the rent.”

               The defense later called Fred Bost, a partner in the company that leased the property.

Bost testified that he was the person responsible for signing the company’s leases at the time in

question. He further testified that the 2013–2014 lease bore his signature but that the signature on

the 2014–2015 lease did “not appear to be [his] signature.” When asked whether there was anything




                                                  3
about the 2014–2015 lease that “would cause [him] to question the process” of the lease’s execution,

Bost testified as follows:


       Bost: We try—we contacted Ms. Martinez to come in and execute the lease. We
       were told that she worked nights and slept during the day and she couldn’t get to the
       office. So we mailed it to her.

       ***

       But we never—as far as I am—I know, we never received the signed lease back.

       Defense: Okay. So you mailed her a lease, but you never received it back?

       Bost: That’s what I understand, yes.

       Defense: And when you looked—and after I subpoenaed you, you looked in your file
       cabinets and you never found this second lease . . . .

       Bost: We did not.


Bost also testified concerning the 2013–2014 lease’s “holdover” provision. This paragraph of the

lease provides,


       If Tenant does not vacate the Premises following termination of this lease, Tenant
       will become a tenant at will and must vacate the Premises on receipt of notice from
       Landlord. No holding over by Tenant, whether with or without the consent of
       Landlord, will extend the Term.


Finally, Bost testified that Martinez did ask him to install “floodlights.”

                  Casarez was convicted and sentenced, and this appeal followed.




                                                  4
                                           DISCUSSION

Jury Charge

                In his first appellate issue, Casarez contends that the trial court “should have charged

on ‘all law applicable to the case.’” Specifically, Casarez complains that the trial court refused to

include the following instruction in the jury charge, which the defense requested at trial:

        You are instructed that when a residential lease ends, and the tenant or tenants named
        on the lease do not move out and continue paying rent, said tenant(s) continue as
        tenant(s) on a month-to-month basis.


According to Casarez, “[t]he court should have defined ‘tenant,’ ‘lease,’ and when a lease

terminates—none of which are found in the Penal Code.” Casarez further argues that he became a

month-to-month tenant after the expiration of the 2013–2014 lease and that, because he remained

a tenant, “he had a right to be in the residence, and therefore, could not have burglarized them [sic].”

                We review alleged jury-charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

See Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Price v. State, 457 S.W.3d 437,

440 (Tex. Crim. App. 2015) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh’g)); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).2

                Casarez does not cite any authority supporting his argument that the trial court erred

in refusing to submit instructions not derived from the Penal Code. Indeed, as Casarez concedes,




       2
          We note that Casarez’s appellate brief does not discuss the standard of review of his
alleged charge error, nor does he explain how he has been sufficiently harmed by alleged error to
require reversal. See Tex. R. App. P. 38.1(i).

                                                   5
precedent from the Texas Court of Criminal Appeals, which is binding on this Court, holds that trial

courts hearing criminal cases are generally not required to instruct the jury on matters outside the

Penal Code. See Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012) (“We have generally

held that, if a jury-charge instruction ‘is not derived from the [penal] code, it is not “applicable law”’

under art. 36.14[3].”) (quoting Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App. 2007)); see

also Celis v. State, 416 S.W.3d 419, 433 (Tex. Crim. App. 2013) (plurality op.) (“Non-statutory

instructions, even when they are neutral and relate to statutory offenses or defenses, generally have

no place in the charge.”); Ramos v. State, No. 03-12-00302-CR, 2014 WL 2957742, at *6 (Tex.

App.—Austin June 26, 2014, no pet.) (mem. op., not designated for publication) (“Generally, if a

proposed instruction is not derived from the penal code, it is not law applicable to the case, and may

instead be an impermissible comment on the weight of the evidence.”).

                Moreover, the Penal Code itself defines “owner”: a person is an owner if she “has title

to the property, possession of the property, whether lawful or not, or a greater right to possession of

the property than the actor.” Tex. Penal Code § 1.07(a)(35)(A). Furthermore, “possession” means

“actual care, custody, control, or management.” Id. § 1.07(a)(39). The jury charge in this case

correctly provided these Penal Code definitions.

                Because the court’s charge correctly instructed the jury on ownership as defined by

the Penal Code and in light of the precedent discussed above holding that courts are generally not




        3
          See Tex. Code Crim. Proc. art. 36.14 (requiring trial judge to “deliver to the jury . . . a
written charge distinctly setting forth the law applicable to the case; not expressing any opinion as
to the weight of the evidence, not summing up the testimony, discussing the facts or using any
argument in his charge calculated to arouse the sympathy or excite the passions of the jury”).

                                                    6
required to include instructions not derived from the Penal Code, we cannot conclude that the trial

court erred by refusing the instruction on tenancy that Casarez requested. Accordingly, we overrule

Casarez’s first appellate issue.


Sufficiency of the Evidence

                In his second appellate issue, Casarez contends that the evidence was insufficient to

support his convictions for burglary of a habitation because the State failed to prove “[t]hat Appellant

had no right to enter the premises.”

                In evaluating the sufficiency of the evidence supporting a jury’s verdict, we view the

evidence in the light most favorable to the verdict and ask whether “‘any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’” Montgomery v. State,

369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (quoting Brooks v. State, 323 S.W.3d 893, 902 n.19

(Tex. Crim. App. 2010)). We are instructed only to “ensure that the evidence presented supports the

jury’s verdict and that the state has presented a legally sufficient case of the offense charged.” Id.

“The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses,”

and if “the record supports conflicting inferences, we presume that the jury resolved the conflicts

in favor of the verdict, and we defer to that determination.” Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). “In our sufficiency review we consider all the evidence in the record, whether

direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or the

defense.” Boguang Li v. State, No. 03-18-00237-CR, 2018 WL 2423211, at *3 (Tex. App.—Austin

May 30, 2018, no pet.) (mem. op., not designated for publication) (citing Clayton v. State, 235 S.W.3d

772, 778 (Tex. Crim. App. 2007), Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin

                                                   7
2013, no pet.)). We measure sufficiency of the evidence against the elements of the offense as

defined by a hypothetically correct jury charge. See Ramjattansingh v. State, 548 S.W.3d 540, 546

(Tex. Crim. App. 2018); Canada v. State, 547 S.W.3d 4, 13 (Tex. App.—Austin 2017, no pet.).

                 In his appellate brief, the entirety of Casarez’s argument concerning the sufficiency

of the evidence is as follows:


       As contended in point #1, the hypothetically correct charge in this case would require
       some instruction on the law of leases. Measured against that hypothetical charge,
       the evidence in this case falls short. Therefore, Appellant should be acquitted of all
       burglary counts.


Liberally construing this argument, we understand Casarez to be contending that he was a holdover

tenant under the lease and, therefore, could not have committed burglary because he had a right to

enter the residence.

                 However, as discussed above, the trial court did not err in instructing the jury on the

definitions of “owner” and “possession” found in the Penal Code. The evidence at trial showed that

Casarez had moved out of the residence before committing the alleged burglaries, that Martinez had

the locks changed, and that Casarez entered without Martinez’s effective consent. Therefore, under

the Penal Code definitions, Martinez was the “owner” of the residence because she exercised actual

care, custody, control, or management of the residence, even assuming, for the sake of argument, that

Casarez was still a tenant under the terms of the lease.

                 This is consistent with our decision in Mack, where we held that the evidence was

sufficient to prove the predicate offense of burglary even though the defendant had signed the lease

as a cotenant:

                                                   8
       Appellant’s position cannot withstand, on this factual record, a straightforward
       application of the “greater right to possession” doctrine. The record clearly shows
       that, at the time of the offense, [the victim] had a greater right than appellant to
       custody and control of the apartment. Appellant voluntarily moved out, removed
       almost all of his possessions from the apartment, and began living with his parents.
       Appellant stopped paying rent or utilities, and Shaw repaid him for his portion of
       the deposit. Appellant agreed not to visit the apartment unless he first called for
       permission. Appellant’s only remaining claim to an interest in the apartment was the
       fact that his name remained on the lease contract. However, the greater right of
       possession doctrine does not credit rights that are unrealized at the time of the
       offense; instead, we must compare the parties’ actual rights to custody and control
       of the property on the date of the offense. Even if appellant could have regained
       possession of the apartment by virtue of his contractual rights, he had voluntarily
       abandoned those rights on the date of the offense and had far less right, at that time,
       to control of the apartment than did [the victim] . . . . The touchstone of our analysis
       is not whether the defendant has any right to possession of the property at all, but
       whether the alleged owner’s right to possess the property is greater than the
       defendant’s.


Mack v. State, 928 S.W.2d 219, 223 (Tex. App.—Austin 1996, pet. ref’d) (citations omitted); see

Dominguez v. State, 355 S.W.3d 918, 923 (Tex. App.—Fort Worth 2011, pet. ref’d) (explaining that

a person commits burglary by breaking into a habitation in another’s possession).

               Because we have determined that a rational trier of fact could have found beyond a

reasonable doubt that, at the time of the burglaries, Martinez had possession of the property, whether

lawful or not, or had a greater right to possession of the property than Casarez, we conclude that the

evidence was sufficient to support Casarez’s burglary convictions. Accordingly, we overrule his

second appellate issue.


Lesser-Included Offenses

               In his third appellate issue, Casarez complains that the trial court should have

instructed the jury on lesser-included offenses for each count of burglary of a habitation. According

                                                  9
to Casarez, “[t]here was some evidence that Appellant was a tenant ([and not] a burglar) because of

the reasons set forth in points #1 and #2 (i.e., his lease never terminated).” Therefore, argues

Casarez, the court should have granted the defense’s request “that each count also be charged as the

lesser included offense contained within the burglary count.”

               In his appellate brief, Casarez asserts, “In this case, Defense counsel duly requested

LIO’s [lesser-included offenses] be included for each burglary count—on the theory that the jury

might agree Appellant wasn’t a burglar, but guilty of the acts allegedly committed, or intended, after

entry. This appears in vol. 5, pages 56 through 58 of the trial transcript.” However, the cited pages

do not indicate that the defense requested any instructions on lesser-included offenses. Instead, in

those pages, the trial court is reading to the jury the completed charge, which did include an

instruction on the lesser-included offense of “Assault Bodily Injury Family Violence Repeat Offender”

for Count II and also included an instruction on the lesser-included offense of “Interception of an

Oral Communication” for Count V. Thus, the record before us indicates that the court did in fact

instruct the jury on lesser-included offenses for two out of the three burglary counts, and the record

does not indicate that the defense ever requested any additional instructions on lesser-included

offenses. Trial courts have no duty to sua sponte instruct the jury on lesser-included offenses. See

Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010); see also Mendez v. State, 545 S.W.3d

548, 552 (Tex. Crim. App. 2018) (discussing Tolbert); Crosby v. State, No. 06-17-00179-CR,

2018 WL 1439847, at *1 (Tex. App.—Texarkana Mar. 23, 2018, no pet.) (mem. op., not designated

for publication) (noting that “the trial court has no duty to instruct the jury on lesser-included

offenses in the absence of a request by the defense”).



                                                 10
               Because the record before us does not indicate that Casarez requested instructions on

lesser-included offenses beyond those given by the trial court, we overrule his third appellate issue.4


Clerical Errors

               Our own review of the record reveals that the trial court’s judgments of conviction

for Counts I and IV contain non-reversible clerical error in that they indicate that Casarez pleaded

not guilty to the charged offenses. However, the record indicates that Casarez pleaded guilty to those

counts. This Court has authority to modify incorrect judgments when the necessary information is

available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.

App. 1993). Accordingly, we will modify the judgments for Counts I and IV to reflect that Casarez

pleaded guilty to those counts.


                                          CONCLUSION

               We modify the trial court’s judgments of conviction for Counts I and IV to reflect that

Casarez pleaded guilty to the offenses, and we affirm those judgments as modified. We affirm the

trial court’s remaining judgments of conviction.




       4
         We also note that Casarez would not have been entitled to instructions on lesser-included
offenses based on the arguments made in his appellate brief. As discussed above, the question of
whether he was a holdover tenant under the terms of the lease was not determinative of whether he
entered Martinez’s residence without her effective consent under the burglary statute.

                                                  11
                                            __________________________________________

                                            Scott K. Field, Justice

Before Chief Justice Rose, Justices Field and Toth

Count I: Modified and, as Modified, Affirmed

Count II: Affirmed

Count III: Affirmed

Count IV: Modified and, as Modified, Affirmed

Count V: Affirmed

Filed: November 21, 2018

Do Not Publish




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