           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

       P RICE, 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



       1

       E.g., Guzman v. State, 188 S.W.3d 185, 188-89 (Tex. Crim. App. 2006).
                                                                                   MERU — 2

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



       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.
                                                                                  MERU — 3

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


       6

        TEX . PENAL CODE § 30.02(b)(1).
                                                                                       MERU — 4

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,



       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.
                                                                                          MERU — 5

“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




        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.
                                                                                          MERU — 6

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




        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.
                                                                                             MERU — 7

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

        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.
                                                                                  MERU — 8

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
                                                                                       MERU — 9
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




       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.
