Heller v. State
347 S.W.3d 902
Tex. App.2011Background
- Appellant Natasha Heller was charged with misdemeanor criminal trespass under Tex. Penal Code § 30.05.
- At trial, the court instructed the jury on a lesser-included offense, attempted criminal trespass, over Heller's objection.
- The jury convicted the lesser offense and imposed a $500 fine.
- The information alleged entry into a habitation; evidence showed Heller knocked, attempted entry through a window, and entered without consent.
- Heller moved for an instructed verdict; the trial court denied and gave the lesser-included offense instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jury should have been instructed on attempted criminal trespass | Heller contends the lesser offense instruction was improper. | State argues attempted criminal trespass is a valid lesser offense under art. 37.09(4). | Overruled; affirmed judgment. |
Key Cases Cited
- Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993) (first prong determines lesser-included status by proof within the charged offense)
- Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981) (second prong considers evidence of lesser offense guilt)
- Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (prong analysis is a legal question based on charging and proof)
- Gonzales v. State, 532 S.W.2d 343 (Tex. Crim. App. 1976) (discusses limitations when culpable mental state differs in attempted offenses)
- Strong v. State, 87 S.W.3d 206 (Tex. App.-Dallas 2002) (attempt statute may not apply where target offense lacks culpable mental state)
- Reed v. State, 762 S.W.2d 640 (Tex. App.-Texarkana 1988) (volitional refusal to leave language arises under § 30.05(a)(2))
- Holloway v. State, 583 S.W.2d 376 (Tex. Crim. App. 1979) ( Penal Code § 6.02 requires culpable mental state for proscribed conduct)
- West v. State, 567 S.W.2d 515 (Tex. Crim. App. 1978) (confirms culpable mental state requirement in § 6.02)
- Salazar v. State, 284 S.W.3d 874 (Tex. Crim. App. 2009) (habitation notice supports entry-forbidden presumption)
- Jones v. State, 170 S.W.3d 772 (Tex. App.-Waco 2005) (recognizes attempted criminal trespass as a potential lesser offense)
- Johnson v. State, 773 S.W.2d 721 (Tex. App.-Houston [1st Dist.] 1989) (indicates attempted criminal trespass may be lesser offense of burglary)