No. 05-08-00399-CR
Opinion filed April 30, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-01259-KN.
Before Chief Justice THOMAS and Justices MOSELEY and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
The jury convicted Steven Silmon of burglary of a habitation, found the enhancement paragraph true, and assessed a sixty-year sentence. In one issue, appellant complains the trial court should have submitted a jury instruction on the lesser included offense of criminal trespass. We affirm the trial court's judgment.
Background
Appellant and the complainant previously lived together. Originally, appellant had helped the complainant around her house. Later, they had a brief romantic relationship. Eventually, the romantic relationship turned bad and the complainant asked appellant to leave. He left, but about two weeks later, he appeared at her house with a woman. When the complainant would not let him in, appellant pushed open the back door. The door knocked the complainant down. While she was on the floor, appellant kicked her in the face and chest. He took her automobile keys and asked her for money. The complainant called appellant's mother and, eventually, the police. After the police left, appellant returned to the house. SHOULD THE TRIAL COURT HAVE SUBMITTED THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS TO THE JURY?
In one point of error, appellant argues the trial court erred in not submitting a jury instruction on the lesser included offense of criminal trespass. The State responds that no evidence exists to show if appellant was guilty, he was only guilty of criminal trespass. 1. Standard of Review
When reviewing jury charge error, we first determine if error actually exists in the jury charge and, second, if we find error, did it harm appellant. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). "If appellant [objected], we reverse if we find any actual harm, regardless of the degree." Anderson v. State, 11 S.W.3d 369, 374 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). In assessing actual harm, we must examine the harm "in light of the entire jury charge; the state of the evidence, including the contested issues and weight of probative evidence; the argument of counsel; and any other relevant information revealed by the record of the trial as a whole." Frost v. State, 25 S.W.3d 395, 400 (Tex.App.-Austin 2000, no pet.) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g)). If appellant does not object to the jury charge at trial, the record must show he suffered actual "egregious harm." See Almanza, 686 S.W.2d at 171. For charge error to result in egregious harm, it must "affect `the very basis of the case,' `deprive the defendant of a valuable right,' or `vitally affect a defensive theory.'" Ngo, 175 S.W.3d at 750 (citation omitted). To establish egregious harm, it is not essential to show direct evidence of harm. See Stokes v. State, 74 S.W.3d 48, 50 (Tex.App.-Texarkana 2002, pet. ref'd). In evaluating whether appellant was harmed, "the record must show that a defendant has suffered actual, rather than merely theoretical, harm." Ngo, 175 S.W.3d at 750. Neither appellant nor the State bears the burden to show harm. Warner v. State, 245 S.W.3d 458, 464 (Tex.Crim.App. 2008). 2. Applicable Law
We follow a two-pronged test to determine if the trial court should have given a jury charge on a lesser included offense. Hall v. State, 225 S.W.3d 524, 535-36 (Tex.Crim.App. 2007); see De Vaughan v. State, 239 S.W.3d 351, 355 (Tex.App.-San Antonio 2007, pet. ref'd). We first determine if the proof necessary to establish the charged offense includes the lesser offense. Hall, 225 S.W.3d at 535-36. If it does, we then review the evidence to determine that if appellant is guilty, he is guilty only of the lesser offense. Id. at 536. A person commits burglary of a habitation if, without the effective consent of the owner, a person enters a habitation with the intent to commit assault or commits assault. Tex. Penal Code Ann. § 30.02 (a) (1), (3) (Vernon 2003). Trespass may be a lesser included offense of burglary of a habitation. See Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App. 1991). Trespass requires that (1) a person, knowingly, intentionally, or recklessly, enters or remains on property, without the effective consent of another and (2) had notice that entry was forbidden, or received notice to depart, but failed to do so. Tex. Penal Code Ann. § 30.05(a) (Vernon Supp. 2008). 3. The Evidence a. The Complainant
The complainant testified that she suffered from lung disease, liver disease, hypertension, and had suffered two strokes and a heart attack. Appellant helped her around the house and was welcome in her house, but she never gave him a key to her house. She described how their relationship began as friendship, but after ten months they became more than friends. Appellant lived with the complainant off and on. But, their relationship did not last long because he would bring "his female friends" to her house. She told him he was no longer welcome in her home and "to move around." After that, she lived with relatives, but would go back to the house from time to time. Early one morning while she was staying at her house, appellant knocked on the door, but she did not answer his knock. So he came to her bedroom window and asked her to open the door. When she did not answer him, appellant tried to kick in the front door but it did not "give." She tried to call Ruth Scales, appellant's mother, so Scales could come and "deal with" him. Scales did not answer the telephone, so the complainant left a message saying she was going to call the police because appellant was going from door-to-door at her home, kicking each door. As she heard the doors giving, she tried to brace the doors by putting chairs up against them. In her haste and confusion, instead of locking the back bedroom door, she unlocked it. When appellant kicked the door it gave way, hitting the complainant and knocking her to the floor. Appellant then began kicking her chest and face. A young woman was with appellant. The young woman was in a bad state and asking for drugs. Appellant was cursing at both women and calling them names. He demanded the keys to the complainant's vehicle. Appellant pulled the telephones out of the wall before he left, so it took the complainant some time to call the police. After the police left, the complainant was talking on the telephone to Scales when appellant came back to her house. On cross-examination, appellant questioned the complainant about her illnesses and her depression. Although the complainant admitted she took medication for depression, she denied that she suffered from paranoia or heard voices. Next, appellant asked how the complainant felt about Angela Armstrong. He implied that the complainant resented appellant's and Armstrong's romantic involvement after appellant's and the complainant's relationship ended. The complainant denied that their relationship upset her. Appellant and Armstrong had been "running together" for some time and Armstrong "was working for him." The complainant denied she felt "used" by appellant Rather, she testified that appellant not only helped her around her house, he relieved her of watching out for Armstrong, "who was working the streets." Once appellant "came into the picture," he could keep her safe. In attempting to answer appellant's questions about the telephone calls to appellant's mother, the complainant explained that her telephone calls went to an answering machine until she left a message that she was going to call the police. That last message prompted appellant's mother to return her telephone calls. As the complainant was talking to appellant's mother, appellant came through her back door. b. Kevin Williams
Kevin Williams, a Dallas Police Officer, testified he worked patrol from midnight to eight o'clock in the morning. On the night in question, he responded to a burglary call near the end of his shift. When he arrived at the complainant's home, she was crying, fearful, and in pain. The back door was damaged and someone had broken into the house, assaulted the owner, and taken property. The complainant refused medical attention at that time but said she might seek medical attention later. c. Michelle Bates
Michelle Bates testified that she had lived next door to the complainant since 2006. Bates was aware of the complainant's health problems and her medications. Bates had never seen her be so "out of it" that she was unaware of what was going on. Nor had Bates ever seen the complainant act paranoid. Rather, the complainant would sit outside, watch the neighborhood, and call Bates if she saw anything amiss. Bates knew and recognized appellant. Bates testified the complainant told Bates that she had not allowed appellant in her house in 2006 or 2007. d. Ruth Scales
Scales, appellant's mother, testified that she met the complainant when the complainant and her son began dating-at least, they were sleeping in the same bed. Later, she worked for the complainant as a home health aide. Appellant and the complainant were very affectionate with each other and the complainant had told Scales that she loved appellant. Scales and the complainant became friends and frequently talked to each other on the telephone. Scales remembered the telephone conversation when the complainant was screaming, crying, and saying appellant brought a woman to her house. But, according to Scales, the complainant never mentioned appellant kicking in the door or kicking her. Because of the complainant's crying and screaming, Scales thought the complainant had mental problems. On cross-examination, Scales explained she liked the complainant, and thought very highly of her and her family. However, the complainant called Scales frequently to complain that appellant had brought other women to her house. She called so frequently that Scales could not remember when the complainant called Scales and told her to come pick appellant up, but she never mentioned that she would call the police. When pressed for the beginning and ending dates of appellant's relationship with the complainant, Scales could not remember, but she thought it lasted about two-to-three years. Scales believed that the complainant was a liar. For example, the complainant told Scales that she was pregnant when she was not. Also, the complainant said her son wanted her to press charges against appellant, but she was going to drop them-she lied "about the whole situation." However, Scales denied being upset because the complainant pressed charges against her son. On redirect examination, Scales explained that Angela Armstrong and appellant began a romantic relationship in January 2007. They were living together in Armstrong's house. Scales believed that the complainant was upset over Armstrong's and appellant's relationship because the complainant appeared angry and would cry. Scales maintained that if the complainant said otherwise, she was lying f. Michelle Bates
After Scales testified, the State recalled Bates. The trial court held a hearing on appellant's motion in limine. After both the State and appellant questioned Bates, the trial court found Bates's testimony relevant and admissible with certain stipulations. Bates testified that when she first met appellant, she viewed his relationship with the complainant as a friendship. Later, things began to change and she became suspicious about what was happening between appellant and the complainant. Bates began to hear the complainant screaming inside her home. Appellant would come to the complainant's house and tap on her window and beat on her door, but the complainant would not let him in the house. The complainant began to appear with bruises on her face and body and she was withdrawn. Bates could hear appellant calling the complainant names, like "bitch," "liar," and "crazy." At one point, Bates took the complainant to Kemp, Texas to get her out of this situation. But, eventually, they came back to Dallas and the complainant moved in with Bates's family. Most of the time, the complainant would not return to her house. Appellant, however, continued to try to get the complainant to let him into her house by throwing rocks at her window or beating on her door. Bates had known the complainant since Bates was five years old. Bates never knew the complainant to be a liar and Bates trusted her. On cross-examination, appellant established that Bates had never seen appellant hit the complainant and Bates did not know for sure that appellant caused any of the complainant's bruises. Bates admitted that she knew the complainant was bipolar and took medicine for it. 4. Application of Law to the Facts
The evidence shows that after the complainant refused to admit appellant, he broke into the complainant's home, beat and kicked her, and forcibly took her car keys. Appellant's evident intent in forcing entry was to commit assault and he did assault the complainant. We determine that no evidence exists in the record to show that if guilty, appellant was only guilty of the lesser included offense of criminal trespass. See Hall, 225 S.W.3d at 536. Thus, appellant has not shown that the jury charge given was erroneous. See Ngo, 175 S.W.3d at 743. Accordingly, we overrule appellant's sole issue. We affirm the trial court's judgment.