In his first point of error, appellant claims the trial court erred in denying his request for a charge to the jury on the lesser included offense of criminal trespass. Appellant recognizes that the case of Cadieux v. State, 711 S.W.2d 92, 94 (Tex.App. — Austin 1986, pet. denied), which held that criminal trespass is not a lesser included offense of burglary of a motor vehicle, is contrary to his position. Nevertheless, appellant urges the court to interpret "property" as used in the criminal trespass statute to include both real and personal property. We decline to so interpret the offense of criminal trespass.
To date, we find three cases holding that the criminal trespass statute applies only to real property: Williams v. State, 605 S.W.2d 596, (Tex.Crim.App. 1980); Thomas v. State, 919 S.W.2d 810, (Tex.App. — Houston [14th Dist] 1996, pet. ref'd); and, Cadieux v. State, 711 S.W.2d 92, (Tex.App. — Austin 1986, pet. ref'd). In Williams, the appellant contended criminal trespass was a lesser included offense of unauthorized use of a motor vehicle under section 31.07, Texas Penal Code.
See Combs v. State, 652 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.] 1983, no pet.) (holding punishment, which was within statutory limits, was not cruel and unusual even though defendant was eligible for probation and had never been convicted of any felony); Cadieux v. State, 711 S.W.2d 92, 95 (Tex. App.—Austin 1986, pet. ref'd) (concluding no basis from departing from general rule that punishment assessed within statutory limits is not cruel and unusual even though defendant was high school graduate, had honorable military record, and was eligible for probation). With regard to the severity of appellant's sentence in light of the harm caused to the complainant, the evidence showed that the complainant suffered painful second-decree burns to nine percent of his body, including his genitals, buttocks, legs, and elbow, and that he sustained permanent skin discoloration as a result of his burns.
aycheck. Furthermore, appellant had no prior felony convictions or prior probations and was eligible for probation. However, appellant pleaded no contest to the offense of selling Hydrocodone prescriptions for profit and admitted that she had "committed the offense." In January 2007, alone, the clinic made prescription requests for over 200,000 dosage units of Hydrocodone. The scheme was in place for over two years, and appellant worked at the clinic for two and one-half years even though she knew it "was not being run right." Appellant knew that preprinted, presigned prescription forms were being faxed to pharmacies without the clinic having seen those patients. Appellant also testified that she faxed the prescriptions to the pharmacies. Appellant continued to participate in the crime even after she had been indicted. Eligibility for probation does not affect the established rule that a punishment within the statutory range is not cruel and unusual punishment. See Cadieux v. State, 711 S.W.2d 92, 95 (Tex. App.-Austin 1986, pet. ref'd) (finding no basis from departing from general rule that punishment assessed within statutory limits is not cruel and unusual even though appellant was high school graduate, had honorable military record, and was eligible for probation); Combs v. State, 652 S.W.2d 804, 806 (Tex. App.-Houston [1st Dist.] 1983, no pet.) (holding punishment, which was within statutory limits, was not cruel and unusual even though appellant was eligible for probation and had never been convicted of any felony). We conclude that appellant's sentence of four years' incarceration is not grossly disproportionate to the offense of engaging in organized criminal activity. Because we have found the sentence not grossly disproportional, we need not evaluate appellant's sentence under the two remaining Solem factors. See Harris, 204 S.W.3d at 29. We overrule appellant's third issue. INEFFECTIVE ASSISTANCE OF COUNSELFailure to Explain Consequences of Plea
This rule pertains even when evidence in mitigation of punishment is introduced. See, e.g., Bonfanti v. State, 686 S.W.2d 149, 153 (Tex.Crim.App. 1985) (evidence that defendant was first offender, victim suffered no serious bodily injury, and defendant's family would be on welfare if he were confined); Servin v. State, 745 S.W.2d 40, 41 (Tex.App. — Houston [14th Dist.] 1987, no pet.) (evidence that defendant committed no act of violence toward burglary complainant and had no prior convictions); Cadieux v. State, 711 S.W.2d 92, 95 (Tex.App. — Austin 1986, pet. ref'd) (evidence that defendant was high school graduate, had honorable military record, and was eligible for probation); Combs v. State, 652 S.W.2d 804, 806 (Tex.App. — Houston [1st Dist.] 1983, no pet.) (evidence that defendant eligible for probation and if admitted to probation would abide by the terms of probation and would not constitute a continuing threat to society). Because the punishment assessed appellant in each case was within the limits authorized by law, we overrule his point of error and affirm the trial court's judgments.
Cadieux v. State, 711 S.W.2d 92, 95 (Tex.App. — Austin 1986, pet'n ref'd). Thus, the court correctly refused appellant's requested instruction.