# Day v. State

> Court of Criminal Appeals of Texas · February 4, 1976 · 532 S.W.2d 302

URL: https://www.frixlaw.com/law-library/cases/9674069

## Case

- **Full name:** William DAY, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** February 4, 1976
- **Citations:** 532 S.W.2d 302
- **Precedential status:** Published
- **Opinion:** Concurrence by Roberts
- **Judges:** Onion, Roberts, Odom, Douglas, Morrison
- **Cited by:** 302 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Hall v. State, 2007 Tex. Crim. App. LEXIS 625 (2007).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9674069

## How later opinions describe it (automated extraction)

- holding that “the offense of criminal trespass is a lesser[-]included offense of all three types of burglary,” and stating generally that “the elements of criminal trespass, including ‘notice,’ could be established by proof of the same facts necessary to prove the offense of b…

## Opinion text

ROBERTS, Judge
(concurring).
I agree with the Court that criminal trespass is a lesser included offense of burglary under the new Penal Code. The main element distinguishing criminal trespass from the burglary alleged and proven here (under Art. 30.02(a)(1), V.T.C.A., Penal Code) is the intent to commit theft. Since this element was not conclusively established, the issue of criminal trespass was raised.
I add this brief concurrence only for the purpose of identifying the area of my disagreement with the dissenters. It is true, as they contend, that the element of theft was conclusively established. Since theft distinguishes burglary under Art. 30.02(a)(3) from criminal trespass, no issue of criminal trespass would be raised if this were a prosecution under 30.02(a)(3).
But the commission of a theft was not pleaded. Appellant was not on notice that he would have to defend against such an allegation. His entire defense was directed at the “intent to commit theft” allegation in the indictment. Under these circumstances, it would be patently unfair to deny him the opportunity of defending against the charge of which the dissenters find him guilty.
Nor is it any answer to say that the intent to commit theft could be presumed from the proof of the theft, since “intent to commit theft” was an issue at trial. Nor is it appropriate to say that the jury resolved the issue of “intent to commit theft” against the appellant. These statements would provide good post hoc rationalizations for the result, but they would miss appellant’s primary contention: that the jury should have been given an opportunity to find appellant guilty of an offense which did not involve “intent to commit theft.”
For the foregoing reasons, I cannot agree with the dissenters’ position. I concur in the opinion of the Court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9674069. Public record. Not legal advice.