Lavonde Jamal Terrell v. State of Texas--Appeal from 232nd District Court of Harris County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-01-00011-CR
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LAVONDE JAMAL TERRELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd Judicial District Court
Harris County, Texas
Trial Court No. 854101
Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Justice Ross
O P I N I O N

In two points of error, Lavonde Terrell appeals his jury conviction for the offense of sexual assault. Terrell was indicted for burglary of a habitation with intent to commit sexual assault, but the jury convicted him of the lesser offense of sexual assault. The court then followed an agreed recommendation as to punishment and sentenced Terrell to ten years' imprisonment.

Terrell contends the evidence was factually insufficient to support his conviction for burglary of a habitation with intent to commit sexual assault. He also contends the trial court erred by refusing his requested instruction to the jury on the lesser offense of criminal trespass.

The victim, who was Terrell's seventeen-year-old former girlfriend, testified that on March 2, 2000, around 9:30 p.m., she went to her bedroom to take a bath and unexpectedly found Terrell in her bedroom. He had entered through a bedroom window. When she entered the room, Terrell grabbed her, closed the door, locked it, and began to strike her in the face with his fist. Terrell threatened her and forced her to take a bath while he watched. He then started striking her again and choked her until she lost consciousness. When she regained consciousness, she noticed her shorts were twisted. The victim testified that when Terrell dozed off, she ran from the room and got her mother. The victim and her mother then saw Terrell exit the bedroom through a window.

 

Terrell's testimony presented a different version of the events. He testified he was invited to the victim's room that evening and was there with her consent. He admits striking, choking, and kicking the victim, but testified they then "made up" and had consensual sex.

Terrell first complains the evidence was factually insufficient to support his conviction for burglary of a habitation with intent to commit sexual assault. However, Terrell was acquitted of this offense and found guilty of the lesser offense of sexual assault. We therefore overrule Terrell's first point of error as moot.

In his second complaint, Terrell contends the trial court committed reversible error because it denied his request to include the lesser offense of criminal trespass in the jury charge. A defendant is entitled to a charge on a lesser offense if (1) the lesser offense is included within the proof necessary to establish the offense charged, and (2) there is some evidence that would permit the jury rationally to find that if the defendant is guilty, the defendant is guilty only of the lesser offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000), cert. denied, ___ U.S. ___, 121 S. Ct. 1407, 149 L. Ed. 2d 349 (2001); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993); Dowden v. State, 758 S.W.2d 264, 268 (Tex. Crim. App. 1988); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. [Panel Op.] 1981) (op. on reh'g).

If a defendant presents evidence that no offense was committed, or presents no evidence, and there is no evidence otherwise showing the defendant is guilty only of a lesser included offense, then a charge on a lesser offense is not required. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985) (quoted in Bignall v. State, 887 S.W.2d 21, 22-24 (Tex. Crim. App. 1994)).

Further, the evidence must establish the lesser included offense as a valid rational alternative to the charged offense. Wesbrook, 29 S.W.3d at 113; Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997). This means the evidence must allow a jury to rationally conclude the appellant was guilty only of the lesser offense. Wesbrook, 29 S.W.3d at 113-14.

The Texas Penal Code defines criminal trespass as:

(a) A person commits an offense if he enters or remains on property, . . . of another without effective consent or he enters or remains in a building of another without effective consent and he:

 

(1) had notice that the entry was forbidden; or

 

(2) received notice to depart but failed to do so.

 

Tex. Pen. Code Ann. 30.05(a) (Vernon Supp. 2002).

Terrell satisfies the first prong of the test. Criminal trespass is within the proof necessary to prove burglary. Aguilar, 682 S.W.2d at 558. Having met the first hurdle, Terrell must still satisfy the second prong. Under the second prong, there must be some evidence that would permit the jury rationally to find that if Terrell is guilty, he is guilty only of the lesser offense. Wesbrook, 29 S.W.3d at 113.

Terrell was charged with burglary of a habitation with intent to commit sexual assault. Although the victim's testimony proves the elements of criminal trespass, her testimony further establishes Terrell could not be guilty of only criminal trespass. According to her testimony, Terrell was present in her bedroom without her consent, and while there he physically and sexually assaulted her.

If Terrell's testimony was believed by the jury, he could not be guilty of the lesser offense of criminal trespass because he was in the house with the victim's consent. Terrell testified he was invited to the house, the victim let him into the house, and she never asked him to leave. His testimony was a complete denial of a trespass. If believed by the jury, it would have constituted a complete defense to the offense charged, as well as the lesser offenses of sexual assault and criminal trespass. Thus, Terrell was not entitled to the requested charge on criminal trespass. This contention of error is overruled.

We affirm the judgment.

 

Donald R. Ross

Justice

 

Date Submitted: December 27, 2001

Date Decided: December 28, 2001

 

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