Joe Salazar v. The State of Texas--Appeal from 251st District Court of Potter CountyAnnotate this Case
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
SEPTEMBER 24, 2009
JOE CHRISTIAN SALAZAR,
THE STATE OF TEXAS,
FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;
NO. 55,146-C; ; HON. ANA ESTEVEZ, PRESIDING
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Joe Christian Salazar was convicted of burglary of a building. He appealed that
conviction by contending he should have received an instruction on the lesser offense of
criminal trespass. We affirmed the judgment by holding that criminal trespass was not a
lesser-included offense of burglary of a habitation as pled in this indictment1 because the
latter failed to include facts that would give notice that entry was forbidden. The Court of
Appellant was indicted for burglary of a habitation.
Criminal Appeals reversed and remanded the matter to us by holding that a habitation
implicitly gives notice that entry is forbidden. Salazar v. State, 284 S.W.3d 874, 880 (Tex.
Crim. App. 2009). We, therefore, now consider whether the second prong of the lesserincluded offense analysis was satisfied. It requires us to determine whether there appears
evidence of record permitting a rational jury to reasonably conclude that if appellant is
guilty of anything, it is only of criminal trespass. See Rousseau v. State, 855 S.W.2d 666,
672-73 (Tex. Crim. App. 1993) (holding that a party is entitled to an instruction on a lesserincluded offense if 1) the lesser offense is included in the proof necessary to establish the
greater offense, and 2) some evidence exists that would permit a jury to rationally find that
if appellant is guilty, he is guilty only of the lesser offense).
A person commits criminal trespass if he enters or remains on property without
effective consent and he had notice that the entry was forbidden or he received notice to
depart but failed to do so. TEX . PENAL CODE ANN . §30.05(a) (Vernon Supp. 2008). If there
is more than a scintilla of evidence from any source that raises the issue that appellant is
guilty only of criminal trespass, then appellant was entitled to the instruction. Forest v.
State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). However, the evidence alluded to
must affirmatively negate the element present in the greater offense but absent in the
lesser. Morris v. State, No. 07-99-0498-CR, 2000 Tex. App. LEXIS 7181 at *5 n.1 (Tex.
App.–Amarillo October 25, 2000, pet. ref’d) (not designated for publication). It is not
enough to simply rely upon the State’s failure to prove the particular element. Moreover,
if the defendant presents evidence that he committed no offense, then the instruction may
not be required. Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).
Here, evidence of record illustrates that police responded to an anonymous report
of a possible burglary at a residence in Amarillo. An Hispanic man purportedly was
observed going in a window of a vacant house. Later, an individual was seen coming out
of the back door of the residence by an officer investigating the call. That individual ran
away when the officer identified himself and told him to stop. Approximately seven to ten
minutes later, officers saw appellant walking within blocks of the crime scene, believed him
to be the suspect they sought, and apprehended him. At that point, appellant allegedly
“denied being inside the residence.”
The State indicted appellant for burglary, that is, for entering the abode with the
intent to commit theft. Appellant’s defense at trial was founded upon misidentification. He
endeavored to show that the color of the clothing worn by the suspect seen coming out of
the house did not match that of appellant, that he ran from the officers when found walking
on the street because he had outstanding traffic tickets, and that he was not in the
Upon reviewing the record before us, we conclude that the evidence, depending
upon who the jurors believed and how they resolved credibility issues, could have
supported either a verdict of guilty for the crime charged (burglary) or an acquittal founded
upon misidentification. None appears of record permitting a rational jury to reasonably
conclude that if appellant committed any offense while inside the house it was simply the
crime of criminal trespass.2 Given this, we cannot say that the second element mandated
by Rousseau was and is satisfied.
Accordingly, the judgment of the trial court remains affirmed.
Do not publish.
W e also found no evidence upon which a rational jury could reasonably conclude that appellant had
any reason to be in the house other than to com m it a theft. See De Vaughn v. State, 239 S.W .3d 351, 356
(Tex. App.–San Antonio 2007, pet. ref’d) (holding that there was no evidence that the defendant who threw
a plant through a window and reached inside had any intent but to steal).