Tyrell Darnell Smith v. State
06-14-00102-CR
| Tex. App. | Apr 6, 2015Background
- Appellant Tyrell Smith was tried and convicted for burglary of a building; jury assessed 24 months in state jail and a $10,000 fine.
- At trial Smith initially elected to proceed pro se; appointed counsel acted as shadow counsel and then trial counsel when Smith was absent.
- Neighbors observed a gold/bronze Buick near a rarely-used rental cottage, found tools and appliances in the yard, and saw a man (later identified as Smith) walk from nearby woods to the vehicle and drive off.
- No one observed Smith inside the cottage; no usable fingerprints or footprints were found inside or around the cottage; doors/windows appeared closed and unlocked.
- Trial counsel requested a jury instruction on the lesser-included offense of criminal trespass (arguing Smith was only around the driveway/land and not in the building); the trial court denied the request.
- On appeal the State argues trespass is not a lesser-included offense of burglary and, even if considered, the evidence did not support Smith being guilty only of trespass; the State also relies on Meru regarding the statutory definition of "enter."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether criminal trespass is a proper lesser-included offense to burglary | Smith: evidence showed he was only on the surrounding land/driveway, not inside the building, so trespass should be charged | State: trespass to property is not a lesser-included offense of burglary because "building" excludes surrounding land and elements differ; no evidence he was only guilty of trespass | Trial court properly denied; conviction affirmed (no reversible error) |
| Whether any evidence supports submission of criminal trespass as lesser-included | Smith (on appeal): evidence fails to prove intent to commit theft so trespass is possible | State: record contains no evidence placing Smith in the building or showing he was guilty only of trespass; Aguilar & other cases require some evidence he acted only as trespasser | No sufficient evidence to warrant the instruction; denial upheld |
| Effect of statutory/indictment language on lesser-included trespass | Smith: not argued on this point at trial | State: under Meru, use of generic term "enter" in burglary indictment distinguishes burglary’s lesser entry requirement from trespass’s whole-body entry, precluding trespass as lesser-included | Meru controls; trespass cannot be included when indictment uses generic "enter," supporting denial |
| Applicability of precedents allowing trespass instruction when defendant had non-theft reason to enter | Smith: cites Day, Goad, Mitchell — where evidence suggested innocent purpose for entry | State: those cases required evidence showing entry for non-criminal purpose; here there is no evidence of being inside or innocent purpose | Precedents inapplicable; lack of evidence of innocent purpose means instruction not required |
Key Cases Cited
- Aguilar v. State, 682 S.W.2d 556 (Tex. Crim. App. 1985) (lesser-included instruction requires some evidence defendant was guilty only of the lesser offense)
- Day v. State, 532 S.W.2d 302 (Tex. Crim. App. 1976) (lesser-included trespass appropriate when evidence shows entry for innocent purpose)
- Goad v. State, 334 S.W.3d 443 (Tex. Crim. App. 2011) (lesser-included analysis focuses on whether evidence raises fact issue supporting only the lesser offense)
- Mitchell v. State, 807 S.W.2d 740 (Tex. Crim. App. 1991) (instruction on lesser offense warranted where defendant’s testimony provided noncriminal explanation for entry)
- State v. Meru, 414 S.W.3d 159 (Tex. Crim. App. 2013) (statutory definitions and indictment language matter: generic "enter" in burglary indictment can preclude criminal trespass as lesser-included because trespass requires whole-body entry)
- Johnson v. State, 665 S.W.2d 554 (Tex. App. — Houston [1st Dist.] 1984, no pet.) (building excludes surrounding property; trespass to property not lesser-included to burglary)
- Black v. State, 183 S.W.3d 925 (Tex. App. [14th Dist.] 2006, pet. ref’d) (same: trespass to property is not a lesser-included offense of burglary)