ALVIN HUGHESFROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

    
COURT OF APPEALS
    
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00391-CR
 
ALVIN HUGHESFROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES STEWART, ROWE AND OVARD
OPINION BY JUSTICE STEWART
APRIL 7, 1989
        Alvin Hughes appeals a conviction for burglary of a habitation with intent to commit theft. The jury assessed punishment at life confinement. In a single point of error, appellant contends that the trial court committed reversible error in denying a requested instruction on the lesser included offense of criminal trespass. We disagree. Accordingly, we affirm.
        Hollis Polk testified that on November 29, 1987, at approximately 6:30 p.m., he left for church, noticing a yellow car parked near his house. He returned at approximately 8:00 p.m. that evening, and as he approached his house, he noticed that his front door was ajar about ten inches, although he had locked the top and bottom locks when he had left. Polk turned and walked back towards his truck; then he saw appellant come out of his house. Polk went on to his truck, got out his shotgun and chased appellant, but lost him. A neighbor called the police, and Polk gave the officer a description of the person he had chased from his house. The police testified that they found the suspect about one and one-half blocks from Polk's house, walking toward the house in the direction of the yellow car Polk had seen earlier. When apprehended, appellant appeared nervous and was perspiring, although the night was cold. Polk testified that within 15 minutes, the police had captured appellant and that Polk identified appellant as the person that had left his house.
        Polk further testified that he had not given appellant or anyone else permission to enter his house. Also, he had never seen appellant before the night in question. Further, Polk stated that nothing was missing from his house, but the curtains had been pulled back and a few things had been moved around. The State introduced a tire tool that had been recovered from the front seat of the yellow car when that car was impounded. The tire tool had paint chips on one end that appeared to be from the door facings of Polk's front door. An officer testified that he had observed Polk's door and noticed scratches and imprints that matched the tire tool. He further testified that Polk and another witness had observed appellant run to the car and get rid of the tire tool before he fled.
        At the conclusion of trial, appellant requested the court to instruct the jury on the lesser included offense of criminal trespass, and he contends that the trial court's denial of his request constitutes reversible error. A charge on a lesser included offense is required if the evidence meets the test enunciated in Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981). That test provides that the defendant must show that: "(1) the proof necessary to establish the lesser included offense is included within the proof necessary to establish the offense charged; and (2) the record reflects some evidence that demonstrates that the defendant, if guilty, is guilty of only the lesser included offense . . ." Dominguez v. State, 722 S.W.2d 179, 182 (Tex. App.--Houston [14th Dist.] 1986, no pet.)(citing Royster, 622 S.W.2d at 442). Criminal trespass may be a lesser included offense of burglary of a habitation. Moreno v. State, 702 S.W.2d 636 (Tex. Crim. App. 1986)(citing Day v. State, 532 S.W.2d 302 (Tex. Crim. App. 1976). The necessity of a charge on a lesser included offense must be determined on a case by case basis. Moreno, 702 S.W.2d at 640. Further, as stated in Moreno, "[i]n determining this question all of the evidence at the trial, whether produced by the State or the defendant, must be considered. If evidence from any source raises the issue and a jury charge on the issue is properly requested, the issue must be submitted to the jury." Id.
        The difference between the offenses of burglary and criminal trespass is that burglary requires the additional element of intent to commit a felony or theft. Criminal trespass requires the person to enter or remain on property of another without effective consent and to have notice that the entry was forbidden or receive notice to depart but fail to do so. TEX. PENAL CODE ANN. § 30.05 (Vernon 1989). We agree that the first prong of the Royster test has been met in this case.
        Appellant argues that the second prong has also been met because the jury could infer he had no intent to commit theft from the fact that no property was taken from Polk's house. Consequently, he maintains there is some evidence that if he is guilty, he is only guilty of criminal trespass. We agree that, if the state failed to show an intent to commit theft, appellant was entitled to the charge on criminal trespass. Lewis v. State, 715 S.W.2d 655, 656 (Tex. Crim. App. 1986). However, the intent to commit theft is inferable from the circumstances of the case. Id. at 657. The State need not prove that anything was taken in order to prove intent to commit theft. Id. (citing Garcia v. State, 571 S.W.2d 896, 899 (Tex. Crim. App. 1978)). Further, an entry made in the nighttime and without consent is a significant factor in determining criminal intent because it tends to indicate a surreptitious purpose associated with criminality. LaPoint v. State, 750 S.W.2d 180, 193 (Tex. Crim. App. 1988). Cf. Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982)(entry made at night without consent presumed made with intent to commit theft). The LaPoint court also pointed to that appellant's connection with burglary tools, his demeanor when apprehended and the lack of plausible motive for entry other than to commit theft as factors bearing on the intent determination. 750 S.W.2d at 193.
        In this case, the burglary occurred at night, without the owner's consent. An officer testified that two persons saw appellant throw a tire tool into the yellow car that was parked near the burglarized home, and a tire tool with paint chips on it that matched the complainant's door facing was found in that car. When apprehended, appellant appeared nervous and was perspiring, although the night was cold. Appellant did not present any evidence at trial. There is no evidence that appellant entered the house for a purpose other than to commit theft. Intent may be inferred from all circumstances of the case. No evidence was presented at trial that suggested that appellant, if guilty, was guilty only of the lesser included offense. Dominguez, 722 S.W.2d at 182.
        A jury charge on the lesser included offense is not warranted unless both parts of the Royster test are satisfied. Id. Because the second part, which requires proof that appellant, if guilty, is guilty only of the lesser included offense, was not satisfied, appellant's point is overruled.
        The judgment of the trial court is affirmed.
 
 
ANNETTE STEWART
JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00391.1/F
 
 
File Date[01-02-89]
File Name[880391]