Mitchell v. State, 807 S.W.2d 740 (Tex. Crim. App. 1991). · Go Syfert
Search
Mitchell v. State, 807 S.W.2d 740 (Tex. Crim. App. 1991). Cases Citing This Book View Copy Cite
G Cite
cited 2× by 2 distinct cases, last quoted 2011 · …appellant testified that he did not intend to commit theft on the complainant's property. at p. 742 ✓
68 citation events (30 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 36 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Goad, Joshua Lee
Tex. Crim. App. · 2011 · quote attribution · 1 verbatim quote · confidence high
appellant testified that he did not intend to commit theft on the complainant's property.
discussed Cited as authority (verbatim quote) Goad, Joshua Lee
Tex. Crim. App. · 2011 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
appellant testified that he did not intend to commit theft on the complainant's property.
discussed Cited as authority (rule) Ebong, Iniubong (2×)
Tex. App. · 2015 · confidence medium
App. 1988) 13 Mitchell v. State, 807 S.W.2d. 740, 742 (Tex. Crim.
discussed Cited as authority (rule) Piland, James Earl v. State
Tex. App. · 2015 · confidence medium
"If the absence of the lesser-included offense instruction left the jury only with the options either to convict the defendant of the charged offense or tc acquit him ' fas the case at bar], a finding of harm is essentially automatic because the jury was denied the opportunity to con vict the defendant of the lesser offense." Iofton, 6 S.W.Sd at 800; see also: Hi&chell v. State, 807 S.W.2d 740, 742 (Tx.Crim.App. 1991); Jiminez, supra, at 299 (citing Saunder v. State, 913 S.W.2d 564, 571 (Tx.App.-Corpus Christi, 1994).
discussed Cited as authority (rule) Everett Wilson v. State (2×)
Tex. App. · 2014 · confidence medium
This is not a case where an appellant testified he did not intend to commit theft upon entry, Mitchell v. State, 807 S.W.2d 740, 742 (Tex. Crim.
discussed Cited as authority (rule) Goad, Joshua Lee
Tex. Crim. App. · 2011 · confidence medium
A trial court determines whether a lesser offense is a valid, rational alternative to the charged offense by examining the evidence tending to support the lesser offense in the context of all the evidence that has been presented S.W.2d at 442; Mitchell v. State, 807 S.W.2d 740, 742 (Tex. Crim.
examined Cited as authority (rule) Goad, Joshua Lee (3×)
Tex. Crim. App. · 2011 · signal: cf. · confidence medium
Cf. Waddell v. State, 918 S.W.2d 91, 94 (Tex.App.-Austin 1996, no pet.) (holding that testimony about defendant's statement that he was looking for his sister’s cat, combined with the defendant's sister's testimony that she sent him to look for her cat, rationally supported an inference that he lacked intent to commit theft). .See, e.g., Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App.1991) ("Appellant testified that he did not intend to commit theft on the complainant’s property."); Moreno v. State, 702 S.W.2d 636, 640 (Tex.Crim.App.1986) (appellant testified that he entered neighbor…
cited Cited as authority (rule) Salazar, Joe Christian
Tex. Crim. App. · 2009 · confidence medium
Mitchell v. State , 807 S.W.2d 740, 742, n.3 (Tex. Cr.
discussed Cited as authority (rule) Salazar v. State (2×)
Tex. Crim. App. · 2009 · confidence medium
We have not addressed Moreno's discussion of habitation. [8] PENAL CODE § 30.05(a). [9] PENAL CODE § 30.05(b)(2). [10] Mitchell v. State, 807 S.W.2d 740, 742, n. 3 (Tex.Cr.App.1991). [11] PENAL CODE § 30.01(2). [12] PENAL CODE § 30.01(1). [13] Id. [14] Blankenship v. State, 780 S.W.2d 198, 209-10 (Tex.Cr.App.1989) ("The determination whether a burglarized place is a `building' or `habitation' will be overturned on appeal only if the appellant can show that no reasonable trier of fact could have found the place to have been a habitation under the criteria above."). [15] Id.
discussed Cited as authority (rule) Salazar, Joe Christian
Tex. Crim. App. · 2009 · confidence medium
According to the Penal Code, a “building” is defined as “any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.”11 Buildings are typically commercial properties or government offices or 8 P EN AL C O D E § 30.05(a). 9 P EN AL C O D E § 30.05(b)(2). 10 Mitchell v. State, 807 S.W.2d 740, 742, n.3 (Tex. Cr.
cited Cited as authority (rule) Adam George Resa v. State
Tex. App. · 2006 · confidence medium
Mitchell v. State , 807 S.W.2d 740, 742 (Tex. Crim.
cited Cited as authority (rule) Adam George Resa v. State
Tex. App. · 2006 · confidence medium
Mitchell v. State, 807 S.W.2d 740, 742 (Tex. Crim.
cited Cited as authority (rule) Vance Galvin Allen v. State
Tex. App. · 2005 · confidence medium
Mitchell v. State , 807 S.W.2d 740, 742 (Tex. Crim.
examined Cited as authority (rule) Campbell v. State (4×)
Tex. App. · 2004 · confidence medium
E.g., Saunders v. State, 913 S.W.2d 564, 571 (Tex.Crim.App.1995) (citing Beck v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980)) (danger is that the jury will convict of some offense, ie., the greater offense, only because of no alternative); Ross v. State, 861 S.W.2d 870, 877 (Tex.Crim.App.1992); Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App.1991); also Jiminez v. State, 953 S.W.2d 293, 299-300 (Tex.App.Austin 1997, pet. ref'd).
cited Cited as authority (rule) Oiler, Robert Gene A/K/A Chris Edward Enke v. State
Tex. App. · 2000 · confidence medium
Id .; Mitchell v. State , 807 S.W.2d 740, 742 (Tex. Crim.
cited Cited as authority (rule) Smetana v. State
Tex. App. · 1999 · confidence medium
Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Cr.App.1991).
discussed Cited as authority (rule) Graham v. State (2×)
Tex. App. · 1997 · confidence medium
E.g., Moreno v. State, [ 702 S.W.2d 636, 641 (Tex.Crim.App.1986)]; Gibson v. State, 726 S.W.2d 129, 133 (Tex.Cr.App.1987); Hayes v. State, 728 S.W.2d 804, 810 (Tex.Cr.App.1987); Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Cr.App.1991).
cited Cited as authority (rule) Jones v. State
Tex. App. · 1996 · confidence medium
Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App.1991).
discussed Cited as authority (rule) Saunders v. State (2×)
Tex. Crim. App. · 1995 · confidence medium
E.g., Moreno v. State, supra at 641; Gibson v. State, 726 S.W.2d 129, 133 (Tex.Cr.App.1987); Hayes v. State, 728 S.W.2d 804, 810 (Tex.Cr.App.1987); Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Cr.App.1991). 3 In each of these cases we essentially recognized that “some” ham occurs because the jury was not permitted to fulfill its role as factfinder to resolve the factual dispute whether the defendant committed the greater or lesser offense.
cited Cited as authority (rule) Hernandez v. State
Tex. App. · 1995 · confidence medium
Mitchell v. State, 807 S.W.2d 740, 741 (Tex.Crim.App.1991).
cited Cited as authority (rule) Jones v. State
Tex. App. · 1994 · confidence medium
Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App.1991).
cited Cited as authority (rule) Pritchett v. State
Tex. App. · 1994 · confidence medium
Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App.1991).
cited Cited as authority (rule) Sledge v. State
Tex. App. · 1993 · confidence medium
Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App.1991).
discussed Cited as authority (rule) Williams v. State (2×)
Tex. Crim. App. · 1993 · signal: cf. · confidence medium
Cf. Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App.1991). .Cf.
cited Cited as authority (rule) Westbrook v. State
Tex. App. · 1993 · confidence medium
Mitchell v. State, 807 S.W.2d 740, 741 (Tex.Crim.App.1991); see Tex.Code Crim.PROC.Ann. art. 37.09 (Vernon 1981).
cited Cited as authority (rule) Sims v. State
Tex. App. · 1992 · confidence medium
Mitchell v. State, 807 S.W.2d 740, 741 (Tex.Crim.App.1991) (citing Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981)).
cited Cited "see" Kalif Williams v. State
Tex. App. · 2004 · signal: see · confidence high
See Mitchell v. State , 807 S.W.2d 740, 742 (Tex.Crim.App. 1991).
cited Cited "see" Hayward v. State
Tex. App. · 2003 · signal: see · confidence high
See Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.
discussed Cited "see" Hayward, Shantee D. v. State (2×)
Tex. App. · 2003 · signal: see · confidence high
See Mitchell v. State , 807 S.W.2d 740, 742 (Tex. Crim .
cited Cited "see" Morris Louis Lofton v. State
Tex. App. · 1999 · signal: see · confidence high
See Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App.1991), Jiminez, 953 S.W.2d at 299 (citing Saunders, 913 S.W.2d at 571 ).
cited Cited "see" Jiminez v. State
Tex. App. · 1997 · signal: see · confidence high
Saunders v. State, 913 S.W.2d 564, 571 (Tex.Crim.App.1995); see Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App.1991); Hayes v. State, 728 S.W.2d 804, 810 (Tex.Crim.App.1987).
cited Cited "see" Jesse Alonzo, III v. State
Tex. App. · 1993 · signal: see · confidence high
See Mitchell v. State , 807 S.W.2d 740, 741 (Tex. Crim.
discussed Cited "see" Asif Zubair Chaudhry v. State (2×)
Tex. App. · 1992 · signal: see · confidence high
See Mitchell v. State , 807 S.W.2d 740, 741 (Tex. Crim.
discussed Cited "see, e.g." Ferrel v. State (2×)
Tex. App. · 2000 · signal: see, e.g. · confidence medium
See, e.g., Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App. 1991); Hayes v. State, 728 S.W.2d 804, 810 (Tex.Crim.App.1987); Gibson v. State, 726 S.W.2d 129, 133 (Tex.Crim.App.1987); Moreno v. State, 702 S.W.2d 636, 641 (Tex.Crim.
discussed Cited "see, e.g." Jones v. State (2×)
Tex. App. · 1997 · signal: see, e.g. · confidence medium
See, e.g., Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App.1991); Hayes v. State, 728 S.W.2d 804, 810 (Tex.Crim.App.1987); Gibson v. State, 726 S.W.2d 129, 133 (Tex.Crim.App.1987); Moreno v. State, 702 S.W.2d 636, 641 (Tex.Crim.App.1986).
cited Cited "see, e.g." Porter v. State
Tex. App. · 1994 · signal: see also · confidence medium
See also Mitchell v. State, 807 S.W.2d 740, 742 (Tex.Crim.App.1991).
Retrieving the full opinion text from the archive…
Terry MITCHELL, Appellant,
v.
the STATE of Texas, Appellee
264-90.
Court of Criminal Appeals of Texas.
May 1, 1991.
807 S.W.2d 740
Floyd W. Freed, III, Houston, for appellant., John B. Holmes, Jr., Dist. Atty., J. Harvey Hudson, Susan Baetz, Asst. Dist. At-tys., Houston, and Robert Huttash, State’s Atty., Austin, for the State.
Maloney, McCormick, White.
Cited by 56 opinions  |  Published

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

The appellant was convicted by a jury on an indictment charging burglary of a habitation, V.T.C.A. Penal Code, § 30.02(a)(1), enhanced by a prior felony conviction, V.T. C.A. Penal Code, § 12.42(c). The jury, upon finding the enhancement allegations to be true, assessed punishment at confinement in the Department of Criminal Justice, Institutional Division for a term of twenty (20) years. The Fourteenth Court of Appeals affirmed his conviction in an unpublished opinion. Mitchell v. State, No. C14-89-00534-CR, 1990 WL 4225 (Tex. App. — Houston [14th Dist.] delivered January 18, 1990).

We granted appellant’s petition for discretionary review [1] to determine whether the trial court reversibly erred in denying appellant’s request for a charge on Criminal Trespass, V.T.C.A. Penal Code, § 30.05, as a lesser included offense under the provisions of V.A.C.C.P. art. 37.09. [2]

The record reflects that the appellant was discovered by the complainant at approximately 5:30 a.m. standing in complainant’s attached carport, reaching into an enclosed tool cabinet. The appellant testified in his own defense and stated that a few minutes before he entered onto the complainant’s property, he had been the victim of a theft in which he had been swindled out of ten dollars. The appellant claimed that the thief ran between a convenience store and a gas station, and that he began pursuing him on foot. He saw the alleged thief jump a fence surrounding the complainant’s back yard, and the appellant followed. After entering the complainant’s back yard, the appellant did not see the alleged thief, so he walked towards the complainant’s open garage, where he thought the thief might be hiding. The appellant testified that after entering the complainant’s garage area, he reached for a crowbar in order to defend himself should he find the thief hiding in the darkness.

In determining whether a charge on a lesser included offense is required, we established in the case of Royster v. State, 622 S.W.2d 442, 446 (Tex.Cr.App.1975), a two step analysis. “First, the lesser included offense must be included within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense.” Id; see also Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Cr.App.1985).

[*742] The first prong of Royster is satisfied. Under the facts of this case, the offense of criminal trespass is a lesser included offense of burglary. See Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975) (analyzing the elements of burglary and criminal trespass). The second prong of Royster, whether there was some evidence that, if guilty, the appellant was guilty of only the lesser included offense of criminal trespass, is also satisfied.

Appellant testified that he did not intend to commit theft of the complainant’s property. He also testified on cross-examination that he did not have permission from any property owner to run through their yards, including the fenced yard of the complainant. [3] If the facts adduced at trial raise the lesser included offense and a charge is properly requested, then a charge on the issue must be given. Day, supra, at 306. A defendant’s testimony alone may be sufficient to raise the issue of the lesser included offense. Id. In this ease, the testimony of the appellant raised the issue of the lesser included offense of criminal trespass. The trial court erred by refusing to submit the requested charge on criminal trespass.

This Court’s holding in Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984), stated that “[i]f the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of the defendant,’ which means no more than that there must be some harm to the accused from the error.” Id; see also Hayes v. State, 728 S.W.2d 804, 808-10 (Tex.Cr.App.1987); Moreno v. State, 702 S.W.2d 636, 641 (Tex.Cr.App.1986). The appellant was clearly harmed in this ease because the jury was not allowed to consider the lesser included offense of criminal trespass in conjunction with the charge of burglary of a habitation. The trial court should have sustained the defendant’s objection to the charge and included in its charge instruction on the lesser included offense of criminal trespass.

Appellant’s ground for review is sustained. The judgment of the court of appeals is reversed and the case is remanded to the trial court.

McCORMICK, P.J., and WHITE, J., concur in the result.
1

. Tex.R.App.P. 200(c)(3).

2

. Article 37.09, V.A.C.C.P., provides:

An offense is a lesser included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;
(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
(4) it consists of an attempt to commit the offense charged or an otherwise included offense.
3

. The criminal trespass statute, V.T.C.A. Penal Code, § 30.05 specifies that fencing is notice that entry is forbidden.