Opinion
NO. PD-1296-13
03-19-2014
DROMICO ANDREE WASHINGTON, Appellant v. THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
BELL COUNTY
Per curiam .
OPINION
Appellant was charged with burglary of a habitation. The trial court denied his request for a jury charge on criminal trespass. A jury convicted Appellant of burglary and assessed punishment at 15 years in prison.
On appeal, Appellant argued that the trial court erred in denying his requested jury instruction on criminal trespass. The Court of Appeals agreed, finding that trespass was a lesser-included offense of burglary in this case. Washington v. State, No. 03-11-00428-CR, 2013 Tex. App. LEXIS 10903 (Tex. App. - Austin August 29, 2013) (not designated for publication).
The State has filed a petition for discretionary review arguing that trespass is not a lesser-included offense of burglary. In State v. Meru, 414 S.W.3d 159 (2013), this Court held that, as a general rule, criminal trespass will not be a lesser-included offense of burglary of a habitation because trespass requires proof of greater intrusion than burglary. However, trespass may qualify as a lesser-included offense if "the indictment alleges facts that include the full-body entry into the habitation by the defendant." Id.
The Court of Appeals did not have the benefit of Meru when it issued its opinion. Accordingly, we grant the State's petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the that court in light of Meru. DO NOT PUBLISH