
    Henderson David PHILLIPS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00759-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    June 9, 2005.
    Discretionary Review Refused Dec. 7, 2005.
    
      R.P. Cornelius, Houston, TX, for Appellant.
    Charles A. Rosenthal, Jr., District Attorney-Hams County, Amanda J. Peters, Assistant District Attorney, Houston, TX, for Appellee.
    
      Panel consists of Justices TAFT, ALCALA, and HIGLEY.
   MEMORANDUM OPINION

ELSA ALCALA, Justice.

Appellant, Henderson David Phillips, pleaded not guilty to the felony of burglary of a habitation. A jury found him guilty, and the trial court, having found true the enhancement allegation of a prior conviction for burglary of a budding, assessed punishment at 20 years in prison. In three points of error, appellant contends that the evidence is legally insufficient to establish entry into the habitation and that the trial court erred by denying appellant’s requested jury charges on the lesser-included offenses of theft and criminal trespass. We affirm.

Background

Early on May 9, 2003, Christian Thompson left his house to attend class at a local university. When he returned to his house at about 10 a.m. that day, he saw appellant inside his back yard, where he was attempting to climb over the fence. The fence had a door that was locked to prevent entry into the back yard. Thompson observed appellant in possession of a floodlight that belonged to Thompson. In addition, a van was parked in front of Thompson’s house, and a vacuum cleaner that belonged to Thompson was next to the van. Thompson asked appellant what he was doing. Appellant replied that he was taking the items at the request of an inspector. But no one else was present near the house. Although a notice was apparent on the door of the house, it was a pool-violation notice. Dissatisfied with appellant’s explanation, Thompson wrote down the license plate number of the van and went inside the house to call for the police. While Thompson was inside the house, appellant left in the van, taking the floodlight with him.

Police officers obtained the license plate information from Thompson, and that information led officers to suspect appellant. Appellant’s photo was placed into a photo spread shown to Thompson, who positively identified appellant as the person at the fence that morning.

At trial, Thompson testified that, when Thompson left his house that- morning, both the vacuum that was near appellant’s van and the floodlight near appellant were inside a utility shed attached to the house. Thompson explained that the shed had a door that was closed, but not locked. Thompson said that the only way to obtain the two items was by entering the shed.

Legal Sufficiency of the Evidence

In his first point of error, appellant contends that the evidence is legally insufficient to establish his conviction for burglary of a habitation. Appellant’s complaint concerns an alleged lack of evidence to establish entry into the habitation.

In assessing legal sufficiency, we determine whether, based on all of the record evidence, viewed in the light most favorable to the verdict, a rational jury could have found the accused guilty of all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but only ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).

To establish that appellant committed burglary of a habitation, the State had to prove that appellant (1) entered a habitation, (2) without the effective consent of the owner, and (3) with intent to commit a theft. See Tex. Pen.Code Ann. § 30.02(a)(1) (Vernon 2003). A person “enters” a habitation if he intrudes any part of his body, or any physical object connected with the body. Tex. Pen.Code Ann. § 30.02(b)(1), (2) (Vernon 2003). Proof of entry may be shown by circumstantial evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex.Crim.App.1976); Boudreaux v. State, 757 S.W.2d 139, 147 (TexApp.-Houston [1st Dist.] 1988, pet. ref d). A structure that is attached to and shares a common wall with a complainant’s house is a habitation for purposes of section 30.02(a). See Johnson v. State, 844 S.W.2d 872, 874 (TexApp.-Amarillo 1992, no pet.) (rejecting contention that garage attached to house did not constitute habitation).

Although no one saw appellant enter or leave the shed, the undisputed evidence shows that Thompson saw appellant inside Thompson’s fenced and locked backyard. Appellant possessed Thompson’s floodlight and left with the light when he departed in the van, although he did not take the vacuum that belonged to Thompson that Thompson saw near the van when he arrived at the house. The floodlight and vacuum had been inside the shed, or pantry room, attached to Thompson’s residence. Neither item could have been removed from the room without entry into the room.

On viewing these circumstances in the light most favorable to the verdict, a jury could rationally have found, beyond a reasonable doubt, that appellant entered the room, which was undisputedly attached to Thompson’s house and, thus, his habitation. See id. We hold that the evidence is legally sufficient to establish that appellant entered Thompson’s habitation.

Accordingly, we overrule point of error one.

Lesser-included Offenses

In his second and third points of error, appellant contends that the trial court erred by denying his request that instructions on the lesser-included offenses of criminal trespass and theft be included in the jury charge.

An offense is a lesser-included offense under the following circumstances: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish commission of the offense; (3) it differs from the offense charged only in that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex.Code Crim. PROC. Ann. art. 37.09 (Vernon 2004).

A two-pronged test determines whether a defendant is entitled to a charge on a lesser-included offense. See Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. (citing article 37.09). The critical elements of the charging instrument, including time, place, identity, and manner and means, are relevant to the inquiry whether one offense includes another for the purposes of lesser-included offense instructions. Id. at 479 (citing Campbell v. State, 149 S.W.3d 149, 155 (Tex.Crim.App.2004)). Second, some evidence must exist in the record that would permit the jury to find, rationally, that the appellant, if guilty, is guilty only of the lesser-ineluded offense. Hayward, 158 S.W.3d at 478.

The evidence must establish the lesser-ineluded offense as a valid, rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App.2000). A charge on the lesser-ineluded offense is not required, however, when the defendant presents no evidence or presents evidence that no offense was committed. Lofton v. State, 45 S.W.3d 649, 652 (Tex.Crim.App.2001). The offenses of theft and criminal trespass can be lesser-ineluded offenses of burglary. See Daniels v. State, 633 S.W.2d 899, 900 (Tex.Crim.App.1982) (trespass as lesser-included offense of burglary); Day v. State, 532 S.W.2d 302, 306 (Tex.Crim.App.1975) (same); Martinez v. State, 635 S.W.2d 629, 634 (Tex.App.-Austin 1982, pet. refd) (theft and criminal trespass as lesser-included offenses of burglary).

Appellant has not satisfied the second prong of the test, which requires that the record show that some evidence would permit the jury to find, rationally, that if appellant is guilty, he is guilty only of the lesser offense. See Hayward, 158 S.W.3d at 478. The undisputed evidence in the record shows that Thompson’s vacuum and floodlight were in the shed attached to his residence when he left for school that morning, that appellant possessed the floodlight when Thompson arrived home, that appellant was inside the locked fence that surrounded Thompson’s back yard, that Thompson’s vacuum was next to appellant’s van, that appellant left the location with Thompson’s floodlight, and that the floodlight and vacuum could only be acquired by entering the shed attached to Thompson’s residence. Neither the State nor appellant presented any evidence showing that, if appellant was guilty, he was guilty only of the lesser-ineluded offenses of theft or trespass. We hold that the trial court did not err by refusing appellant’s request that the jury charge include instruction's for the lesser-ineluded offenses of theft and trespass.

We overrule points of error two and three.

Conclusion

We affirm the judgment of the trial court.  