                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-13-00020-CR
                                  ________________________

                               EVERETT WILSON, APPELLANT

                                                  V.

                              THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 140th District Court
                                    Lubbock County, Texas
              Trial Court No. 2012-436,337; Honorable Jim Bob Darnell, Presiding


                                            June 10, 2014

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


        Appellant, Everett Wilson, was convicted of burglary of a habitation enhanced

following a jury trial.1 He was sentenced to fifty years confinement and assessed a

$10,000 fine. By a single point of error, he asserts the trial court erred by overruling his

        1
          TEX. PENAL CODE ANN. § 30.02(a), (c)(2) (West 2011). An offense under this section is a second
degree felony. Here, the range of punishment was enhanced to that of a first degree felony based on a
finding that Appellant had previously been finally convicted of the felony offense of burglary of a
habitation. TEX. PENAL CODE ANN. § 12.42(b) (West Supp. 2013).
objection to the omission of a jury instruction on the lesser-included offense of criminal

trespass. We modify the judgment to correct a clerical error and affirm the judgment as

modified.


                                           BACKGROUND


       In July 2012, Appellant was indicted for the offense of burglary of a habitation

with intent to commit theft.        By separate notice in January 2013, the State alleged

Appellant had been previously convicted of burglary of a habitation in 2008. A jury trial

was held, and prior to its conclusion, Appellant objected that the jury charge did not

contain the lesser-included offense of criminal trespass.2          The trial court overruled

Appellant’s objection, and he was convicted of the indictment’s charge.               Appellant

pleaded “true” to the enhancement during the punishment phase of the trial. Thereafter,

the jury sentenced Appellant to fifty years confinement and assessed a $10,000 fine.

The trial court issued its Judgment of Conviction by Jury assessing the jury’s

punishment, and this appeal followed.


                                       STANDARD OF REVIEW


       The trial court shall “deliver to the jury . . . a written charge distinctly setting forth

the law applicable to the case [without] expressing any opinion as to the weight of the

evidence . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). The trial court is

required to instruct the jury on statutory defenses, affirmative defenses and justifications

when they are raised by the evidence. Walters v. State, 247 S.W.3d 204, 208-09 (Tex.

Crim. App. 2007). In other words, the defendant is entitled to an instruction on every

       2
           TEX. PENAL CODE ANN. § 30.05(a) (West Supp. 2013).

                                                  2
defensive issue raised by the evidence, “regardless of whether the evidence is strong,

feeble, impeached, or contradicted, and even when the trial court thinks that the

testimony is not worthy of belief.” Id. at 209.


       One is entitled to an instruction on a lesser-included offense if the lesser offense

is included within the proof necessary to establish the greater offense and there is some

evidence permitting a jury to rationally find that if the defendant is guilty, he is guilty only

of the lesser offense. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 2012);

Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). Bearing this in

mind, we determine whether a defendant is entitled to a lesser-included offense

instruction by conducting a two-part analysis. Goad v. State, 354 S.W.3d 443, 446

(Tex. Crim. App. 2011); Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007). We

first consider whether the offense contained in the requested instruction is a lesser-

included offense of the charged offense. Goad, 354 S.W.3d at 446. If so, we must then

decide whether the admitted evidence supports the instruction, i.e., if “[t]he evidence

permits a rational jury to find the defendant guilty only of the lesser-included offense.”

Id. (citing Rice v. State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011)). “[T]here 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.” Hampton v.

State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). We consider all the evidence

admitted at trial, Goad, 354 S.W.3d at 446, and anything more than a scintilla of

evidence is sufficient to entitle a defendant to a lesser charge. Id. at 446-47. If error

exists, then we determine whether the error caused sufficient harm to require reversal.




                                               3
Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007) (citing Almanza v. State,

686 S.W.2d 157, 171-72 (Tex. Crim. App. 1985)).


                                        DISCUSSION


       Appellant asserts an instruction on the lesser-included offense of criminal

trespass was warranted based upon Appellant’s statement to Officer Travis Denson that

he entered the house to “look for a washer and a dryer.” We disagree.


       Criminal trespass can be a lesser-included offense of burglary of a habitation.

Goad, 354 S.W.3d at 446. “An offense is a lesser-included offense if it is established by

proof of the same or less than all the facts required establishing the commission of the

offense charged.” TEX. CODE CRIM. PROC. ANN. art. 37.09 (1) (West 2006). A person

commits the offense of criminal trespass if he “enters . . . property of another, including

residential land [or] a building . . . without effective consent and the person had notice

that the entry was forbidden or received notice to depart but failed to do so.” TEX. PENAL

CODE ANN. § 30.05(a) (West Supp. 2013).          The indictment charged that Appellant

“intentionally and knowingly, with intent to commit theft, entered a habitation, without the

effective consent of MARTIN SLEMMONS, the owner hereof.” Thus, here, the offense

of criminal trespass is established by proof of the facts of burglary of a habitation as

Appellant was charged, less proof of the specific intent to commit theft. See Goad, 354

S.W.3d at 446.


       Officer Denson testified at trial that he was dispatched to the scene of a possible

burglary in progress. A neighbor had spotted an unknown black male, approximately

twenty years old with cutoff jeans, moving near the back fence of a neighboring house.

                                             4
Officer Denson arrived in approximately two minutes and spotted a broken window with

glass inside and outside the house. He noticed a black male looking through the blinds

of another window or glass door. After they appeared to make eye contact, the black

male attempted to exit through the broken window when Officer Denson cuffed and

arrested Appellant. After Officer Denson placed Appellant in the back seat of his patrol

car, he administered Appellant’s Miranda rights,3 and Appellant agreed to waive his

rights.


          Appellant identified himself and told Officer Denson that he entered the house to

look for a washer and dryer. Appellant also informed Officer Denson that, if Appellant

found one, he was going to take it. Officer Denson asked Appellant whether “[he] broke

into that house?” Appellant answered, “Yes.” He then asked Appellant how he broke

into the house, and Appellant answered, “I threw a rock in the window and I opened it.”

Officer Denson confirmed the damage to the window was consistent with Appellant’s

answer.


          Here, there is no evidence or indication in the record that Appellant entered the

residence for any reason other than to commit theft. This is not a case where an

appellant testified he did not intend to commit theft upon entry, Mitchell v. State, 807

S.W.2d 740, 742 (Tex. Crim. App. 1991), or approached a residence wanting to look for

his dog before entering, Goad, 354 S.W.3d at 447, or entered a restaurant to investigate

what appeared to be a break-in. Day v. State, 532 S.W.2d 302, 306-07 (Tex. Crim.

App. 1975), overruled in part on other grounds, Hall v. State, 225 S.W.3d 524 (Tex.
          3
          The safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
come into play when a person in custody is subjected to either express questioning or its functional
equivalent. Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). See
Martinez v. State, 304 S.W.3d 642, 648 n.3 (Tex. App.—Amarillo 2010, pet. ref’d).

                                                 5
Crim. App. 2007). Instead, the record establishes Appellant threw a rock through a

window to gain entry to a residence in order to take a washer and dryer.


       Simply because Officer Denson testified Appellant was on foot without tools to

disconnect a washer/dryer and any observable means to transport the appliances, we

cannot speculate what Appellant’s ultimate plan was for removing and transporting the

appliances. Had testimony raised the issue that Appellant entered the premises for

purposes other than to commit theft, he would be entitled to a charge on the lesser

offense of criminal trespass. Mitchell v. State, 807 S.W.2d 740, 742 (Tex. Crim. App.

1991); Bui v. State, 964 S.W.2d 335, 341 (Tex. Crim. App. 1998). That simply was not

the case here.


       According to the evidence, if he was guilty of any offense, it was burglary of a

habitation. No charge for criminal trespass was required. Craner v. State, 778 S.W.2d

144, 146 (Tex. Civ. App.—Texarkana 1989, no pet.) (citing Denison v. State, 651

S.W.2d 754 (Tex. Crim. App. 1983)). Appellant’s single issue is overruled.


                                      MODIFICATION


       In reviewing the record, it has come to this Court's attention that the trial court's

written judgment includes a clerical error, i.e. it incorrectly identifies the second degree

felony offense of burglary of a habitation as a first degree felony. This Court has the

power to modify the judgment of the court below to make the record speak the truth

when we have the necessary information to do so. TEX. R. APP. P. 43.2(b). Bigley v.

State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Appellate courts have the power

to reform whatever the trial court could have corrected by a judgment nunc pro tunc

                                             6
where the evidence necessary to correct the judgment appears in the record. Ashberry

v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). We modify the

judgment of the trial court accordingly. See Musgrove v. State, 425 S.W.3d 601, 612

(Tex. App.—Houston [14th Dist.] 2014, no pet. h.) (modifying judgment to reflect correct

offense level).


                                     CONCLUSION


       We modify the trial court’s judgment to reflect the degree of offense as a “2nd

Degree Felony,” and as modified, we affirm the judgment.




                                                      Patrick A. Pirtle
                                                          Justice


Do not publish.




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