








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1635-12


THE STATE OF TEXAS


v.


MARK MERU, Appellee





ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS

NUECES COUNTY



 Price, J., filed a concurring opinion. 

CONCURRING OPINION


	I join the Court's opinion.
	The determination whether to give a jury instruction authorizing conviction for a
lesser-included offense involves two steps. (1)  The first step inquires, as a matter of law,
whether the elements of the lesser offense are fully embraced by the charging instrument of
the greater offense. (2)  In Hall v. State, we finally settled upon the so-called "cognate
pleadings" analysis for making this initial determination. (3)  As later elaborated in Ex parte
Watson, by this analysis a lesser offense is said to be included within the charged offense if
all of its statutory elements are expressly set out by, or may be deduced from descriptive
averments within, the charging instrument alleging the greater offense. (4)  If the lesser offense
is regarded as an available "included" offense within the charged offense as a matter of law,
then the second question arises, which depends upon the evidence presented and inquires
whether a rational jury could find the accused guilty only of the lesser offense. (5)
	Although the Court does not spell it out in any detail, I imagine that the argument for
criminal trespass as a lesser-included offense of burglary as pled in the indictment in this case
would proceed in this way:  The indictment simply alleges that the appellee "did then and
there . . . enter a habitation," without specifying how that entry was achieved, much less
whether it constituted intrusion of the entire body or just a part of it.  No matter, however. 
Either way the indictment suffices to allege a burglary, since intrusion of the entire body
necessarily encompasses intrusion of a part of the body.  Moreover, nothing in the language
of the indictment necessarily rules out a theory of prosecution that would involve intrusion
of the entire body, and perforce, intrusion of a part of the body.  Without more, it could
certainly be argued that the bare allegation of "enter" in a burglary indictment potentially
subsumes--at least it does not manifestly exclude--the elemental "entry" in the criminal
trespass statute.
	It might be different, the argument might continue, had the State pled more
specifically in the indictment, in keeping with the statutory definition of "enter" in the
burglary statute, that the appellee perpetrated the burglary by intruding only a "part of [his]
body" onto the premises. (6)  In that event, the State would have a compelling argument under
the cognate pleadings analysis that criminal trespass was unavailable to the appellee as a
lesser-included offense.  In the absence of such specificity of pleading, however (and given
the likelihood, as an empirical matter, that far more burglaries are perpetrated by intrusion
of the entire body onto the premises than by partial bodily intrusion), the lesser-included
offense of criminal trespass is available on the basis of a burglary indictment that contains
a bare allegation of "entry."
	But this is decidedly not the way that we have typically implemented the cognate
pleadings analysis since Hall and Watson.  Instead, we have consistently said that the
descriptive-averment language from the indictment charging the greater offense must be the
"functional equivalen[t]" to the elemental language from the statute defining the lesser
offense before it may be said that the lesser offense is "included" within the greater. (7)  And
by "functional equivalent," we have meant that the language of the indictment explicitly
operates to commit the State to prove the greater offense in such a way that it will also
necessarily prove the element required by the statute defining the lesser offense. (8)  For
example, in Rice v. State, the indictment alleged that the appellant committed aggravated
assault with a deadly weapon by "use" of "a motor vehicle[.]" (9)  Rice argued that the trial
court erred to refuse his requested instruction on the lesser-included offense of reckless
driving, and the court of appeals agreed. (10)  We reversed the judgment of the court of appeals,
however, holding that the allegation in the indictment that the appellant "used" the motor
vehicle did not commit the State to proving that the appellant necessarily drove it, as would
be required to prove the lesser offense. (11)  "As the State correctly points out," we observed,
"driving might be the most common manner in which aggravated assault with a deadly
weapon, namely a motor vehicle, may occur, but it is certainly not the only one." (12)
	In this case, the State's bare allegation of "entry" in the indictment charging the
appellee with burglary did not commit the State to proving that he entered the premises with
his entire body.  Such a bare allegation could serve only to direct the appellee to the statutory
definition of "enter" in the burglary statute itself, and that would have notified him that proof
that he entered the premises with any part of his body was all that was necessary for the State
to convict him of that offense. (13)  Moreover, the fact that entry with the entire body "might
be the most common manner" by which burglaries occur does not change the calculus, any
more than the fact that most uses of a motor vehicle involve driving affected our conclusion
in Rice. (14)  Consistent with our post-Hall opinions, the Court is correct to hold, utilizing the
cognate pleadings analysis,  that the appellee has failed to satisfy the first step of the test for
determining the availability of a lesser-included offense instruction. (15)
	Though she concludes that the appellee has satisfied the first step, Judge Alcala would
nonetheless reverse the trial court and the court of appeals. (16)  She would do so on the basis
of her further conclusion, under the second step of the analysis for determining the
availability of lesser-included offense instructions, that a rational jury could not have found
the appellee guilty only of criminal trespass. (17)  Because I disagree that the appellee has
satisfied the first step, I need not address the second step.  Even so, I am compelled to
register my serious doubts.   After all, "[a]nything more than a scintilla of evidence is
sufficient to entitle a defendant to a lesser charge." (18)  What Judge Alcala finds lacking in this
case is any evidence to support a finding that the appellee intruded anything more than a
portion of his body--enough to simply break the plane of the doorway--into the apartment. 
I disagree. (19)
	The victim, Trevino, testified that the front door to his apartment was locked.  He was
in his bathroom when he heard the crash of the door being forced open.  He "proceeded" to
investigate.  It typically takes him "ten seconds to walk from [his] bathroom to the front
door[.]"  He was not asked at trial, nor did he volunteer, how long it took him to "proceed"
to his front door on this occasion.  While a jury might infer that he must have been in a hurry
because of the commotion, it was not required to draw this inference.  Once he got to the
door, Trevino saw the appellee "like, ten, 15 feet away."  Later he reiterated that the appellee
was "only ten feet away."
	Officer Shelton, a twenty-three-year veteran of the Corpus Christi Police Department,
testified that he has investigated "[s]everal thousand" burglaries in his time.  He was of the
view that Trevino's door had not been kicked in, but was "pushed" open, such that "the
whole door frame on the left side was pushed out[.]" To break a door open in this "blunt
fashion," he elaborated, "requires either a lot of strength or a lot of force to do, because
you're -- you're pushing a larger section of the -- of the door when you do that.  It -- it
doesn't -- it doesn't -- it's a lot harder to do that."  It is certainly true that Shelton also
observed that "when you do that you break in the plane of the door."  But to say that the force
necessary to break a door open without kicking it is at least sufficient to break the plane of
the door--and hence, establish the partial entry that a conviction for burglary requires--is
not to say that the appellee's entire body could not also have intruded past the plane of the
door and into the apartment.
	To my mind, there is more than enough evidence to support a rational jury finding that
the appellee's entire body intruded into the apartment, however momentarily.  Given the
degree of force involved, the time it may have taken Trevino to "proceed" from the bathroom
to the door (as long as ten seconds), and the appellee's proximity to the broken doorway
when Trevino arrived (as little as ten feet), a rational jury might readily have found that the
appellee's entire body was propelled through the doorway when he shouldered open the
locked door of the apartment.  I daresay, had the appellee been originally charged,
prosecuted, and convicted on the basis of these facts for the offense of criminal trespass
simpliciter, this Court would undoubtedly hold the evidence to be legally sufficient.
	The appellee's jury could rationally have found that he entered the apartment with his
entire body.  Were it also to have found, as the present record would presumably support, that
he lacked the requisite intent to justify a conviction for burglary, (20) it could rationally have
convicted him of criminal trespass--were that an available lesser-included offense under our
cognate pleadings analysis.
	With these observations, I join the Court's opinion.

FILED:	November 27, 2013
PUBLISH
1. 	 E.g., Guzman v. State, 188 S.W.3d 185, 188-89 (Tex. Crim. App. 2006).
2. 	 Id.
3. 	 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007).
4. 	 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (opinion on reh'g).
5. 	 Guzman, 188 S.W.3d at 188-89.
6. 	 Tex. Penal Code § 30.02(b)(1).
7. 	 Farrakhan v. State, 247 S.W.3d 720, 724 (Tex. Crim. App. 2008);  McKithan v. State, 324
S.W.3d 582, 588 (Tex. Crim. App. 2010);  Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App.
2011).
8. 	 See McKithan, 324 S.W.3d at 593 ("The relevant inquiry is not what the evidence may show
but what the State is required to prove to establish the charged offense.");  id. at 594 (Cochran, J.,
concurring) ("The State will not necessarily prove that the defendant intended to physically contact
the victim in an offensive manner as it proves that he intended to cause her bodily injury.");  Rice,
333 S.W.3d at 145-46 (same) (quoting McKithan, supra, at 593).
9. 	 Rice, 333 S.W.3d at 142.
10. 	 Id.
11. 	 Id. at 145.
12. 	 Id. at 147.
13. 	 In Salazar v. State, 284 S.W.3d 874 (Tex. Crim. App. 2009), we similarly resorted to
definitions in the Penal Code to determine that an element of the burglary offense that was charged
in the indictment "inherently" contained an element of criminal trespass.  Id. at 876-77.  The
indictment alleged that Salazar committed burglary of a habitation.  Id. at 875.  Salazar argued that
he should have been granted a jury charge instruction on the lesser-included offense of criminal
trespass on the theory that he "had notice that the entry was forbidden[.]" Id. at 876 (citing Tex.
Penal Code § 30.05(a)(1)).  We held that Salazar was given notice that entry was forbidden by
virtue of the bare pleading that he had entered a "habitation," reasoning that the statutory definition
of habitation served "inherently [to provide] notice that entry is forbidden."  Id. at 878; see Tex.
Penal Code § 30.01(1) ("'Habitation' means a structure or vehicle that is adapted for the overnight
accommodation of persons . . .").  But that statutory definition appeared nowhere in the indictment. 
If a statutory definition that is not included in an indictment may nonetheless be consulted to support
a conclusion that what is alleged in the indictment inherently includes an element of a lesser offense
(so as to justify submission of that offense to the jury as a lesser-included offense), then I do not see
why a statutory definition not included in the indictment may not also be consulted to support a
conclusion that the indictment allegation does not include an element of the lesser offense.
14. 	 333 S.W.3d at 147.
15. 	 A defendant who desires a lesser-included offense instruction for criminal trespass may yet
have some recourse.  Faced with a burglary indictment merely alleging "entry," he may seek greater
specificity via a motion to quash for lack of critical notice, asking for clarification whether the State
intends to prove that element by virtue of evidence that he intruded upon the premises with his whole
body or no more than a part.  See Tex. Code Crim. Proc. art. 21.11 (indictment must be sufficient
"to enable a person of common understanding to know what is meant," and must provide "that
degree of certainty that will give the defendant notice of the particular offense with which he is
charged, and enable the court, on conviction, to pronounce the proper judgment").  We have held
that an indictment alleging burglary need not specify whether the "entry" occurred by virtue of the
intrusion of "any part of the body" versus "any physical object connected with the body"--the two
statutorily defined manner and means of "entry" under the burglary statute.  Marrs v. State, 647
S.W.2d 286, 289-90 (Tex. Crim. App. 1983); Tex. Penal Code § 30.02(b).  I do not think our
holding in Marrs controls the question whether, in the face of a motion to quash, the State would
have to specify in the indictment whether the accused intruded upon the premises with only a part
of his body rather than his entire body.  Even if we thought Marrs did control, we might choose to
revisit that issue in light of Hall and Watson.  In any event, whether such a motion to quash would
ultimately be well taken is beyond the bounds of the instant case.  The result of the cognate pleadings
analysis (as we have previously construed it) should be the same, however counter-intuitive or
unpalatable that result may seem.
16. 	 Judge Alcala's Concurring Opinion.
17. 	 Id. at 8-9.
18. 	 Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011) (quoting Bignall v. State, 887
S.W.2d 21, 23 (Tex. Crim. App. 1994)).
19. 	 There is, moreover, a serious question whether the Court should even address this particular
question for the first time in a petition for discretionary review.  Mistakenly concluding that this
Court's opinion in Goad disposed of the issue whether criminal trespass is a lesser-included offense
of burglary as alleged in the indictment, the court of appeals never addressed whether the jury could
rationally have found "entry" for purposes of criminal trespass while necessarily rejecting "entry"
for purposes of burglary.  See State v. Meru, No. 13-12-00223-CR, 2012 WL 5292924 (Tex.
App.--Corpus Christi Oct. 25, 2012) (mem. op., not designated for publication).  In our capacity as
a discretionary review court, we ordinarily limit ourselves to reviewing "decisions" of the courts of
appeals.  Davison v. State, 405 S.W.3d 682, 691 (Tex. Crim. App. 2013).  There are exceptions to
this practice, of course, but we typically invoke them only "when the proper resolution of the
remaining issue is clear[.]"  Id. at 691-92.  As I trust what follows in the text will demonstrate, Judge
Alcala's resolution of the remaining issue is anything but clearly proper.  The most the Court should
do under these circumstances, were it to agree with Judge Alcala, is to remand the cause to the court
of appeals for that court to address the issue in the first instance, subject to our potential discretionary
review at a later date.
20. 	 The court of appeals held that the record would support a rational jury finding of a lack of
requisite intent.  Meru, 2012 WL 5292924, at *3.  Although the State challenged this holding in its
second ground for discretionary review, we declined to grant that ground.

