








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0435-11


JOSHUA LEE GOAD, Appellant

v.


THE STATE OF TEXAS




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

ECTOR COUNTY



 Keasler, J., delivered the opinion of the Court in which Keller, P.J., Meyers,
Price, Womack, Hervey, and Cochran, JJ., joined.  Keller, P.J., filed a concurring
opinion.  Alcala, J., filed a concurring opinion.  Johnson, J., concurred in the
judgment.

O P I N I O N

	The Eleventh Court of Appeals reversed Joshua Lee Goad's conviction for burglary
of a habitation, holding that the trial judge erred by denying Goad's request for a lesser-included-offense instruction on criminal trespass. (1)  We agree that Goad is entitled to an
instruction on criminal trespass and therefore affirm the court of appeals's judgment.  
Background
	Julie Bickle and her friend, Ami Howsey, were at Bickle's house in Odessa one
afternoon having coffee.  Bickle's eight-year-old son, who was home early from school, was
on a couch in the living room watching television.  The kitchen and the living room comprise
a large open space in the house, and Bickle could see her son on the couch from where she
and Howsey were having coffee in the kitchen.
	Goad and his friend came to Bickle's house and knocked on the door.  When Bickle
answered, Goad said his pit bull was missing and asked her if he could search her house. 
Bickle, who knew Goad because he lived in the neighborhood, told him that she did not have
his dog and denied his request to come inside.  Goad became upset and an argument ensued. 
During the argument, which lasted about five minutes, Goad called Bickle some "choice
words" and said she was "going to get hers."  After Goad and his friend left, Bickle and
Howsey moved Howsey's car around to the other side of the house to make it look like no
one was home in hopes that Goad would not bother them further.
	Fifteen minutes later, Bickle saw the window curtains behind the couch in her living
room start to move.  Howsey saw Goad and his friend stick their heads through the window. 
Goad had knocked out a plastic window covering and started "coming through" the window. 
Bickle started screaming, and Goad and his friend retreated through the backyard and drove
off in Goad's girlfriend's car.  Bickle called the police, who eventually apprehended Goad.
	The State charged Goad with burglary of a habitation.  The indictment alleged that
Goad had entered Bickle's house with intent to commit theft.  At trial, Bickle, her son, and
Howsey testified to the facts set out above.  Odessa Police Officer Tommy Jones, who had
followed up on Bickle's call, testified that he believed Goad's behavior was consistent with
one who was entering another's home to steal property.  At the charge conference, the trial
judge denied Goad's request for an instruction on criminal trespass.  The jury convicted Goad
and sentenced him to twenty years' imprisonment.   
	Goad appealed, arguing, among other things, that the trial judge erred by denying his
request for a lesser-included-offense instruction.  The court of appeals agreed, holding that
the jury rationally could have found Goad guilty only of criminal trespass because the jury
could have believed that Goad was looking only for his dog. (2)  It relied on the following to
support that Goad lacked intent to commit theft: Bickle testified that Goad and his friend
came to her house prior to the break-in and told her that they were looking for Goad's dog. 
Bickle knew that Goad kept dogs as pets.   When Bickle refused to let Goad and his friend
into her home, Goad became upset and argued with Bickle for about five minutes.  Goad and
his friend then attempted to enter Bickle's home only fifteen minutes later.  There was no
evidence that Goad had burglar's tools or "anything with which to carry away stolen
property." (3)  When Bickle yelled at Goad as he was climbing through her window, Goad
retreated and did not actually take anything from Bickle's home.  We granted the State's
petition for discretionary review of the following ground: "Does a trial court abuse its
discretion by refusing to submit a lesser included instruction that is only 'supported' by
unrelated hearsay admitted through the victim?"
Lesser-Included-Offense Instruction
	Determining whether a defendant is entitled to a lesser-included-offense instruction
requires a two-part analysis. (4)  We first consider whether the offense contained in the
requested instruction is a lesser-included offense of the charged offense. (5)  If so, we must
decide whether the admitted evidence supports the instruction. (6)
	Criminal trespass can be a lesser-included offense of burglary of a habitation. (7)  "An
offense is a lesser-included offense if it is established by proof of the same or less than all
the facts required to establish the commission of the offense charged." (8)  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." (9)  The State charged Goad with
"intentionally or knowingly, without the effective consent of Julie Bickle, the owner,
enter[ing] a habitation owned by Julie Bickle, with intent to commit the offense of theft." (10) 
The offense of criminal trespass is established by proof of the facts of burglary of a
habitation as Goad was charged, less proof of the specific intent to commit theft. (11)
	The evidence supports an instruction on a lesser-included offense if it permits a
rational jury to find the defendant guilty only of the lesser-included offense. (12)  "[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." (13)  We consider all
of the evidence admitted at trial, not just the evidence presented by the defendant. (14)  The
evidence must establish that the lesser-included offense is a valid, rational alternative to the
charged offense. (15)  "Anything more than a scintilla of evidence is sufficient to entitle a
defendant to a lesser charge." (16)  However, we may not consider "[t]he credibility of the
evidence and whether it conflicts with other evidence or is controverted." (17)
	Judge Alcala's concurrence argues that courts of appeals should apply an abuse of
discretion standard in determining whether a trial judge erred by refusing a lesser-included-offense instruction.  But even if this were a preferable standard, it would affect neither our
review of the court appeals's opinion nor the outcome in this case.  Moreover, we did not
grant review to determine the proper standard of review, and neither party has briefed this
issue.  Therefore, it would be inappropriate to address it.
	The State argues that the evidence is insufficient to raise the issue of criminal trespass. 
First, while conceding that a rational jury could infer from this evidence that Goad lacked
intent to commit theft, the State contends that the evidence is not "affirmative evidence
directly germane" to Goad's lack of intent to commit theft.  Second, it argues that the lack
of evidence that Goad had burglar's tools or "anything with which to carry away stolen
property" is not affirmative evidence from which a rational jury could find that Goad lacked
intent to commit theft.  Third, the State argues that simply because Goad failed to steal
property from Bickle as he was entering through the window is similarly insufficient to raise
the issue of criminal trespass.  And fourth, the State points out that there was no evidence
that Goad called for his dog or continued his argument with Bickle.
	Even if we were to agree with the second through fourth points, our disagreement with
the first is dispositive of the State's sole ground for review.  Bickle's testimony that Goad
had told her that he was at her house to look for his dog, argued with her for several minutes
because he believed she was being unreasonable, and entered her home only fifteen minutes
later is affirmative evidence directly germane to whether Goad lacked intent to commit
theft. (18)  This evidence would permit a rational jury to believe that Goad was only looking for
his dog when he entered Bickle's home and therefore support a criminal trespass
instruction. (19)  We do not mean to suggest that had Goad broken into Bickle's home a month
later, a rational jury could infer that Goad lacked intent to commit theft.  But while a jury
would have to infer that Goad was only looking for his dog when he entered Bickle's home
fifteen minutes after he argued with her about being able to search her home for his dog, this
inference would be rational based on the evidence admitted at trial.
	A defendant's testimony that he lacked intent to commit a felony when entering
another's property is sufficient to support a criminal trespass instruction. (20)  But we disagree
with the State that direct evidence of the defendant's lack of intent to commit theft when
entering another's home, such as the defendant's testimony, is necessary to support a criminal
trespass instruction.  We must consider all of the evidence admitted at trial, not just the direct
evidence of a defendant's intent. (21)  Moreover, we previously have held that a victim's
testimony about what the defendant said to her was affirmative evidence of the defendant's
lack of intent and thereby supported a lesser-included-offense instruction.  In Schmidt v.
State, (22) we concluded that the defendant, charged with retaliation for services as a
prospective witness, was entitled to a lesser-included-offense instruction on assault. (23)  The
victim testified that she and the defendant, her boyfriend, were arguing about their
relationship problems when the defendant struck her and that the defendant said nothing to
her during the argument about her giving a statement to the police. (24)  We held that the
victim's testimony was affirmative evidence directly germane to whether the defendant
lacked intent to threaten his girlfriend for her services as a prospective witness and that a jury
rationally could infer from that evidence that he lacked that intent. (25) 
	The State relies on Mays v. State (26) to argue that even if Bickle's testimony supports
that Goad was looking for his dog when he first arrived at Bickle's home, it is not affirmative
evidence that he had that same intent at the moment when he entered her home fifteen
minutes later.   However, Mays is not analogous.  In Mays, the appellant was charged with
capital murder and requested, but was denied, lesser-included-offense instructions on
manslaughter and criminally negligent homicide. (27)  The appellant relied on evidence that he
had been diagnosed with psychosis, paranoid ideations, and a thought disorder to support his
contention that he lacked the requisite mental state for capital murder when he killed the
victim. (28)  We held that this was not affirmative evidence that the appellant "did not intend
[the victim's] death or know that it was reasonably certain to occur" at the time he killed the
victim. (29)  But in the present case, Bickle's testimony that Goad stated he was looking for his
dog is affirmative evidence of Goad's mental state when he entered Bickle's home fifteen
minutes after his statement. (30) 
	Furthermore, the State's reliance on Officer Jones's testimony that Goad's behavior
was consistent with someone casing a home to burglarize is misplaced.  This evidence is not
dispositive of our inquiry because it would, at most, contradict the theory that Goad was just
looking for his dog. (31)  It does not mean the jury could not rationally believe that Goad was
just looking for his dog.  Resolving conflicts in evidence is the jury's job, not ours when
determining whether the evidence supports a lesser-included-offense instruction. (32)
	Finally, even assuming that Goad intended to look for his dog upon entry into Bickle's
home, it is arguable that this does not necessarily prove that he did not also intend to commit
theft.  This argument would fail because, even if one could not logically deduce from this
evidence that Goad must have lacked intent to commit theft, that is not the proper standard
of our analysis. (33)  The relevant inquiry is whether there is some evidence that would permit
a rational jury to believe that Goad's intent was to commit criminal trespass. (34)  The evidence
supports an inference that Goad was looking for his dog, and a jury that accepted this
inference could rationally believe Goad lacked intent to commit theft. (35)
Conclusion
	The court of appeals did not err in holding that the evidence supports a lesser-included-offense instruction on criminal trespass.  We therefore affirm the court of appeals's
judgment.

DATE DELIVERED: November 9, 2011
PUBLISH

1.   Goad v. State, 333 S.W.3d 361, 362-64 (Tex. App.--Eastland 2011).  
2.   Id. at 363.  
3.   Id. at 364.    
4.   Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007).
5.   Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011); Hall, 225 S.W.3d at
535.  
6.   Rice, 333 S.W.3d at 144.
7.   Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Day v. State, 532
S.W.2d 302, 304-06 (Tex. Crim. App. 1976).
8.   Tex. Code Crim. Proc. art 37.09(1); accord Rice, 333 S.W.3d at 144. 
9.   Tex. Penal Code § 30.05(a).  
10.   See Tex. Penal  Code § 30.02(a)(1) (providing the offense of burglary of a
habitation).  
11.   See Aguilar, 682 S.W.2d at 558; Day, 532 S.W.2d at 304-06. 
12.   Rice, 333 S.W.3d at 145.  
13.   Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).
14.   Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).
15.   Rice, 333 S.W.3d at 145.
16.   Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).
17.   Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994).
18.   See Hampton, 109 S.W.3d at 441.
19.   Cf. Waddell v. State, 918 S.W.2d 91, 94 (Tex. App.--Austin 1996, no pet.)
(holding that testimony about defendant's statement that he was looking for his sister's
cat, combined with the defendant's sister's testimony that she sent him to look for her cat,
rationally supported an inference that he lacked intent to commit theft).  
20.   See, e.g., Mitchell v. State, 807 S.W.2d 740, 742 (Tex. Crim. App. 1991)
("Appellant testified that he did not intend to commit theft on the complainant's
property."); Moreno v. State, 702 S.W.2d 636, 640 (Tex. Crim. App. 1986) (appellant
testified that he entered neighbor's mobile home to investigate curious events); Day v.
State, 532 S.W.2d 302, 306-07 (Tex. Crim. App. 1975) (appellant testified he entered
restaurant to investigate what appeared to be a break-in).  
21.   Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993).
22.   278 S.W.3d 353 (Tex. Crim. App. 2009). 
23.   See id. at 364.
24.   Id. at 363-64. 
25.   Id. at 364.
26.   318 S.W.3d 368 (Tex. Crim. App. 2010).
27.   Id. at 386.
28.   Id.
29.   Id. at 387.
30.   See Schmidt, 278 S.W.3d at 363-64.
31.   Banda, 890 S.W.2d at 60.
32.   See id.
33.   See Rice, 333 S.W.3d at 145.  
34.   Id.
35.   See Schmidt,  278 S.W.3d at 363-64; Waddell, 918 S.W.2d at 94.  

