TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00620-CR

Dylan Hunter Cloyd, Appellant

v. 

The State of Texas, Appellee

FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY

NO. 19-0805-K26, THE HONORABLE DONNA GAYLE KING, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

 Appellant Dylan Hunter Cloyd was convicted by jury of burglary of a habitation

and sentenced to five years’ confinement and a $2,500.00 fine. See Tex. Penal Code 

§ 30.02(c)(2). In one issue, appellant contends that the trial court erred in refusing to charge the 

jury on the lesser-included offense of criminal trespass. We will affirm the trial court’s judgment 

of conviction. 

BACKGROUND

 Appellant was charged with burglary of a habitation after he forced his way into a 

neighbor’s home. The indictment alleged in two paragraphs that appellant intentionally and 

knowingly entered a habitation without effective consent of the owner and attempted to commit 

or committed assault and theft. 
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At trial, appellant’s former neighbor, Christlyne, who was a high-school senior at 

the time of the incident, testified that she was babysitting her infant nephew and had put him 

down for a nap when she heard a knock at the door. At the door was a food delivery driver with 

a food order for appellant. Christlyne told the driver that the order was not for her but was for 

the neighbor.

A short while later, appellant knocked at the door, appearing “flustered” and 

“angry.” When Christlyne “cracked” the door open, appellant immediately asked, “Where’s my 

fucking food?” After telling appellant five or six times that she didn’t have his food, Christlyne

attempted to close the door, but appellant pushed the door open, causing Christlyne to fall into 

the dining-room table, which she testified hurt her side and rib cage.

Once inside, appellant continued to angrily demand his food, “terrifying”

Christlyne. Because appellant was closer to the stairs leading up to the room where her nephew

was sleeping than she was, Christlyne told the appellant to, “Check the fridge,” as a distraction, 

ran up the stairs, locked herself in a room with her nephew, and called 911. After police arrived, 

Christlyne returned downstairs to find a broken glass bottle on the kitchen floor, an open door,

and an incomplete pack of Modelo beer that had been placed on the dining room table.

At the charging conference, the trial court denied appellant’s request that it charge 

the jury on the lesser-included offenses of criminal trespass and misdemeanor assault.

The jury found appellant guilty of burglary of a habitation and, following a 

hearing on punishment, sentenced him to five years’ confinement. This appeal followed.
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DISCUSSION

 In his sole issue on appeal, appellant argues that the trial court erred in denying 

his request for a jury instruction on the lesser-included offense of criminal trespass. 

 A defendant is entitled to an instruction on a lesser-included offense if it is 

“established by proof of the same or less than all the facts required to prove the offense 

charged[.]” Tex. Code Crim. Proc. art. 37.09(1); Ortiz v. State, 623 S.W.3d 804, 806 (Tex. 

Crim. App. 2021). To determine whether a lesser-included offense should be included in the 

charge, courts apply a two-part test. Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim. App. 

2012). “The first step asks whether the lesser-included offense is included within the proof 

necessary to establish the offense charged.” Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 

2011). This requires a comparison of “the statutory elements of the alleged lesser offense and 

the statutory elements and any descriptive averments in the indictment.” Ritcherson v. State, 

568 S.W.3d 667, 670–71 (Tex. Crim. App. 2018). “If this threshold is met, the court must then 

consider whether the evidence shows that if the Appellant is guilty, he is guilty only of the lesser 

offense.” Cavazos, 382 S.W.3d at 382. The first step of the analysis is a question of law that 

does not depend on the evidence presented at trial. State v. Meru, 414 S.W.3d 159, 162 (Tex. 

Crim. App. 2013). 

In State v. Meru, the Court of Criminal Appeals held that criminal trespass will

generally not be a lesser-included offense of burglary because the statutory definition of “entry” 

for the offense of criminal trespass requires proof of greater intrusion than the definition of 

“entry” for burglary of a habitation. Id. at 163–64. “In other words, a burglary can be complete 

upon only a partial intrusion onto the property, whereas the lesser offense would require a greater 

intrusion.” Id. at 163. 
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Whether “criminal trespass is a lesser-included offense of burglary turns on the

indictment’s specific allegations”; “criminal trespass would qualify as a lesser-included offense 

if the indictment alleges facts that include the full-body entry into the habitation by the 

defendant.” Id. at 164; see DeLeon v. State, 583 S.W.3d 693, 700 (Tex. App.—Austin 2018, pet. 

ref’d). Here, appellant’s indictment alleges that the appellant “intentionally and knowingly 

enter[ed] a habitation without the effective consent of...the owner,” without alleging any 

additional facts that, if proven, would show appellant entered the habitation with his entire body. 

Since the indictment does not allege facts including full-body entry, the proof necessary for the 

burglary offense as charged does not require proof of all the elements of criminal trespass, and

appellant fails to meet the first prong of the lesser-included offense analysis. See Meru, 

414 S.W.3d at 164.

Because the first prong was not met, the trial court did not err in denying 

appellant’s request for a lesser-included instruction on criminal trespass. Consequently, we

need not consider whether, based on the evidence at trial, a rational jury could find that appellant

is guilty only of the lesser offense. See id. (“Because this first prong is not met, we need not 

proceed to the second prong.”); see also Tex. R. App. P. 47.1. 

We therefore overrule appellant’s sole issue.

CONCLUSION

 Having overruled appellant’s sole issue, we affirm the trial court’s judgment 

of conviction. 
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__________________________________________

Rosa Lopez Theofanis, Justice

Before Chief Justice Byrne, Justices Triana and Theofanis

Affirmed

Filed: April 28, 2023

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