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 burglary”
How later courts described this case
- 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 burglary”
- indicating that article 37.09 did not differ materially from predecessor statute in that both versions allowed conviction for lesser offenses even though elements of lesser offenses were not recited in charging instrument
- “the elements of criminal trespass, including ‘notice,’ could be established by proof of the same facts necessary to prove the offense of burglary”
- “it is difficult to imagine a situation where a person would recklessly enter a building or habitation and commit or attempt to commit a felony or theft”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Hall v. State, 2007 Tex. Crim. App. LEXIS 625 (2007)
532 S.W.2d 302, 305-06 (Tex. Crim. App. 1975), abrogated on other grounds, Hall v. State, 225 S.W.3d 524, 527-31 (Tex. Crim.
Disapproved in part by Hall, Aaron Junior (2007)
We disapprove the statements in the opinion on rehearing in Day
The opinion
DOUGLAS, Judge
(dissenting opinion on State’s Motion for Rehearing).
In addition to the reasons set out in the dissenting opinions on original submission, appellant’s testimony does not show a criminal trespass. According to the testimony of appellant, he went into the building rightfully in the early morning hours to call officers to report a burglary. After the entry, he committed the crime of theft. No crime of criminal trespass was alleged and no such crime was proved by appellant’s testimony.
The court did not err in refusing to submit a charge on a lesser included offense.