Opinion issued October 27, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00195-CR
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JUAN SALAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1458018
MEMORANDUM OPINION
A jury convicted appellant, Juan Salas, of burglary of a habitation with
intent to commit assault and assessed punishment at 20 years’ confinement. In his
sole point of error, appellant contends the trial court erred in failing to instruct the
jury on the lesser-included offense of criminal trespass. We affirm.
BACKGROUND
Appellant and Noelia Ruiz lived together for three years. In November 2014,
Ruiz got a new apartment because they had “problems” and she wanted to move
away from appellant. Appellant convinced her to let him move back in with her,
and she gave him another opportunity. Shortly afterward, in January 2015,
appellant “mistreated” Ruiz, and she threw him out of the apartment again.
On February 13, 2015, at 1:00 a.m., appellant called Ruiz saying he wanted
to talk, but Ruiz told him, “There is nothing that I want to talk to you about.”
About fifteen minutes later, Ruiz heard a crash through her apartment window. She
went to investigate and saw appellant running into her bedroom, holding a lug
wrench, and threatening to kill her.
Appellant repeatedly hit her child’s bed with the wrench and told Ruiz he
was going to kill her. Ruiz’s son was scared and curled up in the bed. Ruiz’s
daughter was watching and crying. Appellant dropped the lug wrench, grabbed
Ruiz by her hair, and started hitting her in the face with his fist and slapping her.
He then picked up the lug wrench again and came toward her. He told her, “You’re
going with me because I’m going to kill you and I’m going to take you to Mexico.”
Ruiz was so frightened that she urinated on herself, but she agreed to go with
appellant to try to keep him calm.
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In the parking lot, Ruiz tried to run away, but appellant grabbed her and
knocked out her teeth. Ruiz lost consciousness. She woke up to paramedics
attending to her.
Meanwhile, Sergeant Semein with the Houston Police Department had been
dispatched to the burglary in progress. At an intersection, he saw appellant’s car,
which matched the description of the suspect’s vehicle. When Semein pulled up
behind appellant, appellant accellerated to exceed the speed limit. Appellant also
threw a glass bottle out of his window and drove through two red lights without
stopping, even though Semein had turned on his emergency lights. Eventually,
appellant pulled into a private business parking lot. Semein ordered him out of the
car, then arrested him.
Ruiz was in the passenger seat. She had blood on her lips and face, her lips
were swollen, and she appeared to be in a daze. Semein noticed that appellant had
dried blood on his knuckles. Ruiz was taken to a hospital where she was treated for
the injuries to her head, lips, and mouth.
LESSER-INCLUDED-OFFENSE CHARGE
In his sole point of error, appellant contends the trial court erred in failing to
instruct the jury on criminal trespass as a lesser-included offense of burglary of a
habitation. He argues that the jury was forced to convict him on the higher crime
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as the “only alternative to acquittal,” and, therefore, the trial court’s alleged error
caused him harm.
A. Standard of Review
In determining whether a charge on a lesser-included offense is required, we
apply the two-step analysis set forth in Rousseau v. State, 855 S.W.2d 666, 672
(Tex. Crim. App. 1993); see also Feldman v. State, 71 S.W.3d 738, 750 (Tex.
Crim. App. 2002). Under the first prong of Rousseau, a defendant must establish
that the lesser-included offense is included within the proof necessary to establish
the charged offense. TEX. CODE. CRIM. PROC. ANN. art 37.09 (West 2011);
Feldman, 71 S.W.3d at 750; Rousseau, 855 S.W.2d at 672. Second, the record
must include some evidence that would permit a jury to rationally find that, if
guilty, the defendant is guilty only of the lesser-included offense. Feldman, 71
S.W.3d at 750; Rousseau, 855 S.W.2d at 762.
In the first prong, we compare the elements of the offense, as charged in the
indictment or information, with the elements of the asserted lesser-included
offense. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013); Hall v.
State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). Texas follows the
“cognate-pleadings approach,” which requires the court to compare the elements of
the offense as alleged in the indictment with the elements of the potential lesser
included offense. See Hall, 225 S.W.3d at 535–36; see also Bowen v. State, 374
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S.W.3d 427, 431 (Tex. Crim. App. 2012). An offense is deemed a lesser-included
offense of another offense if the indictment for the greater-inclusive offense alleges
either: (1) all of the elements of the lesser included offense; or (2) elements plus
facts from which all of the elements of the lesser-included offense may be
deduced. Meru, 414 S.W.3d at 162. This first prong of the Rousseau test is a
question of law and does not consider the evidence adduced at trial. Hall, 225
S.W.3d at 535.
If, in our analysis of the first prong of Rousseau, we determine that the
requested lesser offense qualifies as a lesser-included offense, then we address the
second prong and determine “whether a rational jury could find that, if the
defendant is guilty, he is guilty only of the lesser offense.” Meru, 414 S.W.3d at
162–63. In this second prong of Rousseau, we consider whether the evidence
presented at trial raised a fact issue about whether the defendant was guilty of only
the lesser offense. Id. at 163. If so, then a lesser-included-offense instruction must
be given. Id. But, if our analysis under the first prong of Rousseau shows that the
requested lesser offense does not qualify as a lesser-included offense, we need not
proceed to the second prong. Id. at 164.
B. Analysis
In Meru, the Texas Court of Criminal Appeals held that, as a general rule,
criminal trespass will not be a lesser-included offense of burglary because trespass
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requires proof of a greater intrusion on the complainant’s property than does
burglary. Id. at 163-64. “Entry” for purposes of criminal trespass requires
“intrusion of the entire body,” while “entry” for purposes of burglary requires only
a partial intrusion by any part of the body or physical object connected with the
body. Id. at 163. As a result, trespass qualifies as a lesser-included offense of
burglary only if “the indictment alleges facts that include the full-body entry into
the habitation by the defendant.” Id. at 164. Because the indictment in Meru did
not “allege[] facts that include the full-body entry into the habitation by the
defendant,” criminal trespass was not a lesser-included offense of burglary. Id. 1
Like the indictment in Meru, appellant’s indictment does not allege any
specifics regarding the manner in which he entered the complainant’s home, i.e.,
whether the entry was full or only partial.2 And, under the cognate-pleadings
approach, we may not look to the evidence presented at trial to determine the issue.
1
The court of criminal appeals further noted that “a defendant who committed a
full-body entry and wants the opportunity for an instruction on criminal trespass
can file a motion to quash the indictment for lack of particularity[,]” which “would
force the State to re-file the indictment specifying the type of entry it alleges the
defendant committed and allow either party to later request an instruction on
criminal trespass.” Meru, 414 S.W.3d 159, 164 n.3 (Tex. Crim. App. App. 2013).
Although appellant filed a motion to quash, he did not specifically object to lack
of particularity regarding entry, nor does he complain on appeal about the trial
court’s denial of his motion to quash.
2
The indictment alleges that appellant “did then and there unlawfully with intent to
commit an assault, enter a habitation owned by NOELIA RUIZ, . . . without the
effective consent of the Complainant, namely, without any consent of any kind.”
(Emphasis added). No facts relating to the type of entry are alleged in the
indictment.
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See id. at 162 (stating that first step of Rousseau analysis “is a question of law that
does not depend on the evidence presented at trial”). Thus, we conclude that in
this case, as in Meru, criminal trespass is not a lesser-included offense of burglary.
Having determined that appellant does not meet the first prong of the Rousseau test
for lesser-included offenses, we need not address the second prong, and decline to
do so. See Meru, 414 S.W.3d at 164.
Under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985), we
review a claim of reversible jury charge error by first determining whether there
was an error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim.
App. 2009). Because we have determined that, in this case, criminal trespass is not
a lesser-included offense of burglary, the trial court was not required to include it
in the charge, and its refusal to do so was not error. See id.
We overrule appellant’s sole point of error on appeal.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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Juan Salas v. State
Combined Opinion