                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-16-00157-CR


                         PAUL THOMAS PUTNAM, JR., APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 355th District Court
                                     Hood County, Texas
               Trial Court No. CR13139, Honorable Ralph H. Walton, Jr., Presiding

                                            July 28, 2016

                                 MEMORANDUM OPINION
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

        Paul Thomas Putnam, Jr., appellant, appeals his conviction for burglarizing a

building. Through a single issue, he contends the trial court erred by failing to instruct

the jury on the lesser included offense of criminal trespass.1 We affirm.

        The record evidence illustrates that appellant entered an office closed to the

public via the use of a crowbar.             This was captured on video.             Once inside, he


        1
           Because the appeal was transferred to this court from the Second Court of Appeals, we apply
the latter’s precedent where available should no controlling precedent from a higher court exist. See TEX.
R. APP. P. 41.3.
proceeded to an area whereat a safe was located. Though an image of him being by

the safe was not captured on the video, his comments were. They consisted of him

saying: "empty, son of a bitch is empty."

       Appellant does not deny, on appeal, that he entered the locked office with the

help of the crowbar. Nor does he deny the existence of pry marks on the office door, or

his visage being captured on the camera, or his movement towards the safe, or his

speaking the words recorded on the video, or his rummaging through files in the

previously locked office. Nonetheless, he argues that he was entitled to an instruction

on the purported lesser included offense of criminal trespass because nothing was

taken from the office.

       The requisites for obtaining an instruction on a lesser included offense are

thoroughly discussed in opinions such as Hall v. State, 225 S.W.3d 524 (Tex. Crim.

App. 2007) and Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993). Not only

must the elements of the purported lesser offense be included within the proof

necessary to establish the greater offense, but also, some evidence must appear of

record that would permit a jury to rationally find that if appellant was guilty of anything, it

was only of the lesser offense. Rousseau v. State, 855 S.W.2d at 672-73.

       Next, to convict one of burglarizing a building (as appellant was charged here),

the State must prove that appellant, with intent to commit theft, entered a building or a

portion of a building not then open to the public without the effective consent of the

owner. See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). It is not necessary that it

prove the commission of an actual theft. That is, our Court of Criminal Appeals has

stated that “when a burglary is committed, the harm results from the entry itself.” Ex



                                              2
parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). “The offense is complete

once the unlawful entry is made, without regard to whether the intended theft or felony

is also completed.” Id. Given this, a defendant accused of burglary may lawfully be

convicted of the offense without proof that anything was taken. So, if we are to assume

that the failure to take anything suggests a mere criminal trespass, as suggested by

appellant, it does not prohibit a conviction for burglary.

       Simply put, if the evidence cited by appellant would entitle the factfinder to

convict him of criminal trespass it also entitled the factfinder to convict him of burglary.

That means appellant did not satisfy the second element of the Rousseau test. If the

same evidence would support a conviction for either offense, it cannot be said that the

record permits only a conviction for the lesser offense.

       Accordingly, we affirm the judgment of the trial court.



                                                                 Brian Quinn
                                                                 Chief Justice




       Do not publish.




                                              3
