Jeffrey Schott v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00446-CR

NO. 03-11-00447-CR

NO. 03-11-00448-CR

Jeffrey Schott, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NOS. D-1-DC-10-300946, D-1-DC-10-300947, & D-1-DC-11-904015

THE HONORABLE DAVID CRAIN, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted Jeffrey Schott of the felony offenses of burglary of a habitation,

credit card abuse, and unauthorized use of a vehicle. See Tex. Penal Code Ann. §§ 30.02(a)(1), (3),

31.07(a), 32.31(b)(1)(A) (West 2011). The jury assessed his punishment at confinement for 11 years

in the Institutional Division of the Texas Department of Criminal Justice on the burglary charge, six

months in a state jail facility on the credit card abuse charge, and six months in a state jail facility

on the unauthorized use of a vehicle charge. See id. §§ 12.33, 30.02(c)(2), 31.07(b), 32.31(d) (West

2011), 12.35 (West Supp. 2012). The jury recommended that both state jail sentences be suspended

and that Schott be placed on community supervision for those two offenses. See Tex. Code Crim.

Proc. Ann. art. 42.12, § 4 (West Supp. 2012). Schott appeals his convictions, raising two points of

error. We affirm the judgments of the trial court.

BACKGROUND

Schott, a former Marine, dated Teri Arnold, a clinical social worker at a local Austin

school, for approximately nine months. Their romantic relationship ended in January 2010. One

morning in early May, five months after they broke up, Arnold opened her apartment door to leave

for work and encountered Schott brandishing what was she believed to be a gun. Schott pushed

Arnold back into her apartment, telling her to get back and not say anything, and locked the door

behind him. Arnold testified that she felt threatened by the gun. She described Schott as “visibly

amped up,” angry, and irrational; his demeanor scared her. Schott took Arnold’s purse from her,

removed her cell phone and car keys, and put them in his pocket. Arnold lunged for the door in an

attempt to escape, but Schott grabbed her arm pulling her back.

Schott told Arnold that he wanted answers about their relationship. He then pushed

her back into her bedroom where he again expressed that he wanted to talk. Arnold feared that

Schott had taken her to the bedroom to do something “drastic” like kill her. She convinced Schott

to move into the living room to talk. Schott sat on the couch next to Arnold, placing the gun on an

end table next to where he was seated. He sat with Arnold on the couch, questioning her about their

relationship and why it failed. He appeared sad and, at times, cried. Arnold worried that Schott

might hurt her and then himself. At one point, Schott calmed down so Arnold asked him to put the

gun away. He eventually complied, putting the gun in his backpack propped up against the end table,

out of immediate sight but within reach.

About an hour and a half after Schott arrived at her apartment, Arnold’s coworker

called her cell phone to check on her because she had not shown up for work. When Arnold’s phone

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rang, Schott took the phone out of his pocket. He recognized the caller but did not answer. Instead,

he sent a text message from the phone, pretending to be Arnold, informing the coworker that Arnold

would not be in that day. Schott also sent an email from Arnold’s laptop using her email account

conveying the same message.

After the call, Schott and Arnold continued sitting on the couch talking for several

more hours. Although Schott appeared calmer and at one point allowed Arnold to get a drink of

water from the kitchen, Arnold testified that she never felt comfortable with the situation. As the

afternoon progressed, Schott began talking about how he was going to get out of the situation. He

indicated that he might leave the country. During that portion of the conversation, Schott told

Arnold that the gun was an air gun. Although Arnold did not know what an air gun was and was

uncertain that Schott was telling the truth, this information gave her hope that she could get out of

the situation safely.

After extensive discussions about Schott’s plans, the two were in the kitchen when

Schott suddenly picked Arnold up, carried her to the bedroom, and dropped her on the bed. Arnold

noticed that Schott had duct tape in his hands. Since she did not have any duct tape in her apartment,

she assumed Schott had brought it with him. She said that Schott explained to her that he had to tie

her up so he could get away before she called the police. Arnold struggled with Schott and began

to cry. Schott climbed on top of her, held her down, and wound duct tape around her wrists. Arnold

complained to Schott that the tape was tight, hurting her, and pleaded with him to stop. Apparently

changing his mind, Schott stopped trying to bind her, and removed the tape from her wrists.

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They returned to the couch in the living room where Schott continued to discuss his

plans. At one point, while Arnold remained sitting on the couch, Schott moved to the floor to use

her laptop where she could not see the screen. He told Arnold to leave the room. She complied and

went to her bedroom. Several minutes later, Schott told Arnold she could return to the living room.

When she did, Schott was preparing his things to leave and expressed his intent to duct tape her

again. Arnold pleaded with him not to, but Schott forced her back to the bedroom. Before he could

start taping her up, however, Arnold’s cell phone rang. When Schott pulled the phone from his

pocket, he remarked to Arnold that the Austin Police Department was calling. He abandoned his

plan to bind her, collected his things with a panicked look, and left.

Arnold followed Schott to the living room and watched him leave the apartment. She

waited until she was sure he was gone, then retrieved her purse and spare car key. Because Schott

had taken her cell phone, she planned to drive to the leasing office in her apartment complex to call

the police. However, when she went outside she could not find her car. Overwhelmed, Arnold

began crying and ran to the leasing office where she called the police. When the police arrived, they

asked to see her ID. At that point, Arnold discovered that her credit cards were missing from her

wallet. Communications with the credit card company revealed that one of the cards had been used

while Schott was in her apartment—without Arnold’s knowledge or permission.

Based on purchases made with Arnold’s credit cards, law enforcement officials

tracked Schott to the airport in Houston and apprehended him in the security screening area. Schott

had boarding passes for two flights: a flight from Houston to San Francisco and a second flight from

San Francisco to Taiwan. Inside his backpack, he had two credit cards issued to Arnold and two

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international travel books. Arnold’s car was recovered from the airport parking lot. Arnold testified

that they had not discussed him taking her car at any point during their conversations, nor had she

given him permission to do so.

They jury found Schott guilty of burglary of a habitation, credit card abuse, and

unauthorized use of a vehicle. After hearing evidence about the complicated, and sometimes violent,

nature of the relationship between Schott and Arnold, the jury assessed Schott’s punishment at 11

years’ imprisonment for the burglary of a habitation offense and six months confinement in a state

jail for the other two offenses. The jury recommended that the state jail sentences be suspended and

Schott be placed on community supervision. The trial court sentenced Schott in accordance with the

jury’s verdicts. This appeal followed.

DISCUSSION

On appeal, Schott complains that the trial court erred in restricting the length of

defense counsel’s voir dire and in denying his request for an instruction on the offense of criminal

trespass in the jury charge. We affirm the judgments of conviction.

Time Limit on Voir Dire

In his first point of error, Schott asserts that the trial court improperly limited his voir

dire to 45 minutes. He contends that this restriction prevented him from sufficiently exploring the

panelist’s views on issues relevant to the case.

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Length of Voir Dire

Initially, we note that Schott’s complaint appears to be based on a misreading of the

record. While he complains that the trial court limited his voir dire to 45 minutes, the record reflects

that defense counsel actually questioned the venire for approximately one hour and 45 minutes.

Defense counsel began his voir dire at approximately 4:07 p.m. The trial court

informed defense counsel when he had used “an hour and 3 minutes.” Defense counsel continued

questioning the panel for about another half hour. At that point, the State asked to approach the

bench. At the bench conference, the State objected to the length of defense counsel’s voir dire

questioning. The trial court remarked that defense counsel had been questioning the panel for

“almost an hour and a half.” Counsel requested additional time. When the court indicated it would

allow five more minutes, counsel responded, “And I’m going to ask for another ten.” The court

replied, “Okay. Do what you’ve got to do.”

After an additional 15 minutes passed, the trial court interrupted defense counsel

indicating that “we’re out of time.” The parties approached for another bench conference during

which defense counsel asked for further additional time. The trial court denied the request.1 Defense

1

In his brief, Schott refers to the following remarks made by the trial court:

Well, we started at 4:07 and it’s 4:48 now, and I told you at 4:33 that I’d give

you five more minutes, and actually you’ve had 15. That’s what you said if I gave

you five minutes, you’d ask for 10 more. So you are all out of time.

It is clear from record, however, that the trial court misspoke when giving the time during the bench

conference. From notations in the court reporter’s record, as well as comments from the jurors

during questioning, it is clear that the trial court simply misread the time and the correct time was

5:48, not 4:48, and defense counsel was given additional time at 5:33 rather than 4:33.

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counsel was permitted to make some brief closing remarks thanking the panel. The record reflects

that the venire panel was excused so the court could address challenges for cause and take up

individual questioning at 5:48 p.m.

No Preservation of Error

In order to preserve error, an appellant must show “that he was prevented from asking

particular questions that were proper.” Sells v. State, 121 S.W.3d 748, 756 (Tex. Crim. App. 2003)

(emphasis in original); Dewalt v. State, 307 S.W.3d 437, 457 (Tex. App.—Austin 2010, no pet.).

If an appellant does not actually frame a question to the trial court, nothing is preserved for review.

Caldwell v. State, 818 S.W.2d 790, 794 (Tex. Crim. App. 1991), overruled on other grounds by

Castillo v. State, 913 S.W.2d 529, 534 (Tex. Crim. App. 1995); Dewalt, 307 S.W.3d at 457. An

appellant does not preserve error by informing the trial court of the general subject area from which

he wishes to propound questions. Sells, 121 S.W.3d at 756; Caldwell, 818 S.W.2d at 794; Dewalt,

307 S.W.3d at 457; see Dhillon v. State, 138 S.W.3d 583, 589–90 (Tex. App.—Houston [14th Dist.]

2004, no pet.). “Potentially, a wide range of specific questions—both proper and improper—could

[be] asked within [a proper subject] area.” Caldwell, 818 S.W.2d at 794; Dewalt, 307 S.W.3d at

457. That the trial court generally disapproved of an area of inquiry from which proper questions

could have been formulated is not enough to preserve error because the trial court might have

allowed the proper question had it been submitted for the court’s consideration. Sells, 121 S.W.3d

at 756; Dewalt, 307 S.W.3d at 457.

In this case, the record does not reflect any particular questions that Schott sought to

ask the venire but was prohibited from doing so. Defense counsel merely indicated that: (1) he

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needed to follow up with six jurors about their previously discussed “opinions regarding the

punishment of being in prison,” (2) he wanted to further discuss “issues about defendant not

testifying,” and (3) wanted to follow up with 18 jurors “regarding their opinions on the one witness

rule.” At no point did Schott clearly proffer a question or a complaint encompassing a specific

question, that was relevant to, if not dispositive of, a legitimate defensive challenge for cause. See

Fuller v. State, 363 S.W.3d 583, 588 (Tex. Crim. App. 2012) (objection made to trial court’s ruling

“embraced a complaint that [appellant] was denied the right to ask a question that was ‘proper . . .

for purpose of making [a] . . . challenge for cause’”). Counsel simply narrated general subject areas

he wanted to explore, but failed to inform the trial court of any questions he wanted to ask. He

therefore never obtained a ruling from the trial court on whether the follow-up questions that he had

intended to ask were proper. Because Schott did not show that he was prevented from asking

specific proper questions, he failed to preserve error.

Prolonged Voir Dire

Moreover, even if error had been preserved, we could not conclude on this record that

the trial court abused its discretion in failing to grant Schott additional time. The trial court has

discretion to impose reasonable limits on the length of voir dire. Caldwell, 818 S.W.2d at 793. No

bright-line rule identifies what amount of time allowed for voir dire is too short. Wappler v. State,

183 S.W.3d 765, 773 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). A reasonable time

limitation for one case may not be reasonable for another case; thus, each case must be examined on

its own facts. Ratliff v. State, 690 S.W.2d 597, 601 (Tex. Crim. App. 1985); Wappler, 183 S.W.3d

at 773. The trial court’s decision to limit voir dire is reviewed for an abuse of discretion. Barajas

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v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). Absent an abuse of discretion, we will not

reverse the trial court’s refusal to allow defense counsel additional time to question the venire panel.

McCarter v. State, 837 S.W.2d 117, 119 (Tex. Crim. App. 1992); Smiley v. State, 129 S.W.3d 690,

696 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

When a defendant complains that he was not allowed to question the venire

collectively, he demonstrates that the court’s limitation of voir dire was an abuse of discretion by

showing: (1) counsel did not attempt to prolong the voir dire; and (2) counsel was prohibited from

asking proper voir dire questions. McCarter, 837 S.W.2d at 119. When a defendant’s voir dire

examination was terminated as he attempted to question venire members individually, the appellant

must also show that a panelist whom counsel was prohibited from questioning actually served on

the jury. Id.; Ratliff, 690 S.W.2d at 600. Here, Schott’s voir dire was terminated while his counsel

was asking questions of the panel collectively.

In deciding whether counsel attempted to prolong voir dire, we review the record to

see if the questions counsel posed were “irrelevant, immaterial or unnecessarily repetitious.” Ratliff,

690 S.W.2d at 599; Tamez v. State, 27 S.W.3d 668, 672 (Tex. App.—Waco 2000, pet. ref’d).

Counsel has a duty to reasonably budget his time. See Barrett v. State, 516 S.W.2d 181, 182 (Tex.

Crim. App. 1974); Tamez, 27 S.W.3d at 672. Counsel attempts to prolong voir dire where he asks

repetitious questions. See Ratliff, 690 S.W.2d at 599. Though counsel may not be precluded from

repeating questions asked by the court and prosecutor, he can be precluded where the prospective

juror has clearly, unequivocally, and without reservation stated his position. McCarter, 837 S.W.2d

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at 120–21. Further, a trial judge may prohibit questions that substantially repeat others posed by the

same party. Id. at 120.

Here, the record contains sufficient information to support the conclusion that counsel

did in fact attempt to prolong voir dire. At the beginning of his voir dire, counsel used

approximately four percent of his time providing his personal information to the venire panel.2

While a brief introduction is appropriate, the detailed information about family, hobbies, and

childhood experiences that counsel provided went beyond a brief introduction. More importantly,

counsel spent approximately 20 percent of his time questioning each juror of the venire, including

those beyond the potential strike zone, about the employment of the juror’s parents. These questions

concerning parental employment were irrelevant and immaterial. Furthermore, after the trial court

warned counsel that he had already used an hour, counsel asked questions covering topics already

addressed by the State: feelings and opinions regarding guns and violence and the State’s burden

of proof. In fact, after spending approximately six percent of his time discussing the State’s burden

of proof with the panel, counsel later returned to the topic by propounding a hypothetical. The

questions relating to the hypothetical, which took up an additional 25 percent of his time, were

repetitious of the State’s voir dire as well as counsel’s own voir dire.

The record reflects that defense counsel questioned the venire for approximately one

hour and 45 minutes—an hour more than the limitation Schott complains of on appeal. Further, the

2

The record reflects that the State’s voir dire covered approximately 61 pages of the record,

while defense counsel’s voir dire covered approximately 95 pages. The percentages discussed are

calculated based on the number of pages counsel devoted to the topic in relation to the number of

pages of counsel’s entire voir dire.

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record demonstrates that counsel prolonged voir dire by asking irrelevant, immaterial, and

unnecessarily repetitious questions. Accordingly, we cannot conclude that the trial court abused its

discretion in denying defense counsel’s second request for additional time. We overrule Schott’s

first point of error.

Lesser-Included-Offense Instruction

In his second point of error, Schott argues that the trial court erred in denying his

request for an instruction in the jury charge on the offense of criminal trespass. He maintains that

the evidence at trial, demonstrating a consensual entry into Arnold’s apartment but subsequent

refusal to leave after receiving notice to depart, supported the submission of such an instruction.

The Two-Part Analysis

Determining whether a defendant is entitled to a lesser-included-offense instruction

requires a two-part analysis. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011); Hall

v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007). We first consider whether the offense

contained in the requested instruction is a lesser-included offense of the charged offense. Rice

v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011); Hall, 225 S.W.3d at 535. If so, we must

decide whether the admitted evidence supports the instruction. Goad, 354 S.W.3d at 446; Rice,

333 S.W.3d at 144.

Lesser-Included Offense Analysis

“An offense is a lesser-included offense if it is established by proof of the same or

less than all the facts required to establish the commission of the offense charged.” See Tex. Code

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Crim. Proc. Ann. art. 37.09(1) (West 2006). The first step of the analysis asks whether the offense

requested is included within the proof necessary to establish the offense charged. Rice, 333 S.W.3d

at 144; Hall, 225 S.W.3d at 531. This is a question of law, and it does not depend on the evidence

to be produced at trial. Rice, 333 S.W.3d at 144; see Hall, 225 S.W.3d at 535 (adopting

the cognate-pleadings approach for this step: “the elements and the facts alleged in the

charging instrument are used to find lesser-included offenses.”). As the Court of Criminal Appeals

has explained:

An offense is a lesser-included offense of another offense . . . if the indictment for the

greater-inclusive offense either: 1) alleges all of the elements of the lesser-included

offense or 2) alleges elements plus facts (including descriptive averments, such as

non-statutory manner and means, that are alleged for purposes of providing notice)

from which all of the elements of the lesser-included offense may be deduced.

Rice, 333 S.W.3d at 144 (citing Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op.

on reh’g)) (footnote omitted); see also Hall, 225 S.W.3d at 535. This functional-equivalence

concept “requires courts to ‘examine the elements of the lesser offense and decide whether they are

functionally the same or less than those required to prove the charged offense.’” McKithan v. State,

324 S.W.3d 582, 588 (Tex. Crim. App. 2010) (quoting Farrakhan v. State, 247 S.W.3d 720, 722–23

(Tex. Crim. App. 2008)).

Criminal trespass can be a lesser-included offense of burglary of a habitation. Goad,

354 S.W.3d at 446. A person commits the offense of criminal trespass if he enters or remains on or

in property of another, including a building, without effective consent, and the person had notice that

the entry was forbidden or received notice to depart but failed to do so. Tex. Penal Code Ann.

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§ 30.05(a) (West 2011). A habitation inherently provides notice that entry is forbidden. Salazar

v. State, 284 S.W.3d 874, 878 (Tex. Crim. App. 2009).

As relevant here, a person commits burglary of a habitation when the person, without

the effective consent of the owner, enters a habitation with the intent to commit theft or an assault;

or enters a habitation and commits or attempts to commit theft or an assault.3 Tex. Penal Code Ann.

§ 30.02(a)(1), (3) (West 2011). The distinction between criminal trespass and burglary of a

habitation as charged here is Schott’s mental state upon entry or his conduct after entry. Burglary

of a habitation requires proof that Schott entered Arnold’s apartment with the intent to commit theft

or an assault, or that he entered her apartment and committed or attempted to commit theft or an

assault. See id. Criminal trespass requires only proof that Schott entered Arnold’s home without

her effective consent and that he had notice his entry was forbidden. See id. § 30.05(a).

The State concedes in its brief, as it did at trial, that criminal trespass is a

lesser-included offense of burglary of a habitation as alleged in the indictment in this case. However,

3

In four alternative paragraphs, the State charged Schott with entering a habitation

without the effective consent of the owner, Teri Arnold:

• and attempting to commit or committing an assault against Teri Arnold;

• with intent to commit assault against Teri Arnold;

• and attempting to commit or committing theft of the keys, credit cards, or phone of

Teri Arnold; or

• with intent to commit assault against Teri Arnold.

See Tex. Penal Code Ann. § 30.02(a)(1), (3) (West 2011) (defining offense of burglary of

a habitation).

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the criminal trespass statute defines two methods of committing criminal trespass: (1) forbidden

entry—entry without consent when the person had notice that entry was forbidden—and (2) refusal

to leave—remaining without consent after the person received notice to depart. See id. Schott’s

argument relates to the refusal to leave method of committing criminal trespass. He asserts that the

evidence at trial demonstrated that he had been a frequent visitor to Arnold’s apartment, at her

invitation, during their dating relationship and argues that this evidence was sufficient for a jury to

conclude that he had her consent to enter her apartment on this occasion. He then contends that

Arnold’s attempt to escape when she lunged for the door constituted evidence that he received notice

to depart. He maintains that this evidence—of consensual entry but remaining after receiving notice

to depart—supported a conclusion that he “overstayed his welcome” which entitled him to an

instruction on criminal trespass.

We disagree. Evidence of consensual entry, with or without his subsequent refusal

to leave, negates the element of entry “without the effective consent of the owner” of burglary of a

habitation. Consequently, we do not find that criminal trespass committed by “overstaying his

welcome”—that is, refusal to leave after receiving notice to depart—constitutes a lesser-included

offense of burglary of a habitation as alleged. Burglary of a habitation does not allege all the

elements of “refusal to leave” criminal trespass. Further, criminal trespass by refusing to leave after

receiving notice to depart is not within the proof necessary to establish burglary of a habitation. The

burglary offense alleges, and requires proof of, entry without the effective consent of Arnold. The

criminal trespass elements of remaining without consent after receiving notice to leave, subsequent

to consensual entry, are not the same as the nonconsensual entry required for burglary nor its

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functional equivalent. The evidence of consensual entry and subsequent failure to depart that Schott

describes does not establish criminal trespass as a valid alternative to burglary of a habitation; rather,

it merely negates the burglary offense.

However, the other method of committing criminal trespass—forbidden entry—is

established by proof of the facts of burglary of a habitation as Schott was charged, less proof of: the

commission or attempted commission of assault, the specific intent to commit assault, the

commission or attempted commission of theft, or the specific intent to commit theft. See, e.g., Goad,

354 S.W.3d at 446. Presumably the State’s concession that criminal trespass is a lesser-included

offense of burglary of a habitation in this case refers to “forbidden entry” criminal trespass. Still,

although conceding the first part of the analysis, the State disputes that the admitted evidence at trial

supported the submission of an instruction on criminal trespass.

Evidence Supporting Submission of Instruction

The second step of the lesser-included-offense analysis determines if there is some

evidence in the record that would permit a jury to rationally find that, if the defendant is guilty,

he is guilty only of the lesser-included offense. Rice, 333 S.W.3d at 145; Guzman v. State,

188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006). The evidence must establish the lesser-included

offense as “a valid, rational alternative to the charged offense.” Rice, 333 S.W.3d at 145 (quoting

Hall, 225 S.W.3d at 536); Segundo v. State, 270 S.W.3d 79, 91 (Tex. Crim. App. 2008). “[T]here

must be some evidence directly germane to the lesser-included offense for the finder of fact to

consider before an instruction on a lesser-included offense is warranted.” Goad, 354 S.W.3d at 446;

Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). We consider all of the evidence

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admitted at trial, not just the evidence presented by the defendant. Goad, 354 S.W.3d at 446;

Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). “‘Anything more than a scintilla

of evidence is sufficient to entitle a defendant to a lesser charge.’” Goad, 354 S.W.3d at 446

(quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). We may not consider “‘[t]he

credibility of the evidence and whether it conflicts with other evidence or is controverted.’” Id. at

446–47 (quoting Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994)).

We disagree with Schott’s contention that “it is far from unreasonable for a previously

welcomed person to enter a residence through an opened door with an expectation of continued

consent” under the circumstances reflected by the evidence in this case. The evidence reflects that

the last prior consensual entry of Schott into Arnold’s apartment was five months before his intrusion

into the apartment on this occasion. Since that time, the dating relationship between Arnold and

Schott ended. Further, contrary to Schott’s assertion, the record does not reflect that he simply

arrived at Arnold’s door “unexpectedly and sallied inside.” Rather, the evidence demonstrates that

Schott forced his way into the apartment, gun in hand, pushing Arnold back, making her feel

threatened, and placing her in fear. The evidence does not support the conclusion that Shott entered

Arnold’s apartment that morning with her consent but refused to leave after notice to depart.

Furthermore, even if such evidence existed, such evidence would not negate the

theories of the greater offense of burglary of a habitation—the intent to commit assault or theft, or

the commission or attempted commission of assault or theft—to enable a rational jury to conclude

that he was guilty only of the lesser-included offense of criminal trespass. See Stadt v. State,

182 S.W.3d 360, 363 (Tex. Crim. App. 2005) (“‘[I]f sufficient evidence of more than one theory of

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the greater offense is presented to allow the jury to be charged on alternate theories [of the greater

offense], the second prong of the [Rousseau] test is satisfied only if there is evidence which, if

believed, refutes or negates every theory which elevates the offense from the lesser to the greater.’”)

(quoting Arevalo v. State, 970 S.W.2d 547, 549 (Tex. Crim. App. 1998)). In this case, what elevated

the offense from the lesser to the greater was entering the apartment with the intent to commit an

assault or theft, or the commission or attempted commission of an assault or theft after entering

the apartment.

Schott fails to identify any evidence negating the burglary-of-a-habitation element

alleged: the commission or attempted commission of assault, the intent to commit assault, the

commission or attempted commission of theft, or the intent to commit theft. The State argues that

none of the evidence at trial negates the additional burglary element. We agree. Schott did not

testify in his own defense. However, Arnold testified that upon barging into her apartment with a

gun in his hand, Schott indicated that he wanted to talk about their failed relationship. Arguably, this

is some evidence that could negate that Schott entered the apartment with intent to commit either

assault or theft. See Goad, 354 S.W.3d at 448 (citing Schmidt v. State, 278 S.W.3d 353, 364 (Tex.

Crim. App. 2009)) (victim’s testimony about what defendant said to her can be affirmative evidence

of defendant’s lack of intent which supports lesser-included-offense instruction). However, this

evidence does not affirmatively negate or rebut the evidence of the commission or attempted

commission of assault or theft—two alternative theories of the greater offense—and show he is

guilty only of criminal trespass of a habitation. That Schott initiated his nonconsensual entry into

Arnold’s apartment to discuss their failed relationship does not negate or rebut the evidence of his

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assaulting or attempting to assault her or his theft of her property after his forced entry in to

her apartment.

In sum, the record does not contain evidence that would have permitted the jury to

reach a rational conclusion that if guilty, Schott was guilty only of criminal trespass. Consequently,

Schott was not entitled to an instruction on the lesser-included offense of criminal trespass. We

overrule his second point of error.

CONCLUSION

For the above reasons, we affirm the judgments of conviction.

__________________________________________

Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Affirmed

Filed: April 30, 2013

Do Not Publish

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