### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 21

- 00 620

- 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
App ellant 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 tri al court erre d 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 af ter he forced his way i nt o a neighbor’ s home

. T he indict ment alleged in two paragraphs that appellant intentionally and knowingly entered a habitation without effective consent of the owner and attempt ed t o commit
or committ ed assaul t and theft

.2 At trial, appellant ’ s former n eigh bor , Christlyn e , who was a high

- school senior at
the time of the incident , testified that s he was babysitting her infant nephe w and had put him down for a nap when she heard a kn o ck at the door. At the door was a food delivery driver with

a food order for appellant

. Christlyn e 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 “ flus ter ed ” and

“ angry
. ” When Christlyn e “ cracked ” the door open, appellant i mmediately as ked , “ Where ’ s my fucking food? ” After telling appellant five or six times that she didn ’ t have his food , Christlyn e attempted to close the door , b ut appel lant push ed th e do or open , causing Christlyn e to fall into
the dining

- room table , which she testified hurt her side and rib cag e
. Once inside, a ppellant continued to angrily demand his food , “ terrifying ” Christlyn e
. B ecause appellant was closer to the stairs lea ding up to t h e room where her nep hew was sleeping than she was , Christlyn e told the app ellant to , “ C heck the fridge , ” as a distraction, ran up the stairs , locked herself in a room with her nephew , and called 911

. A fter police arrived, Christlyn e returne d downs tairs to find a broken glass bottle on the kitchen floor , an open door,
and a n inc omplete pa ck of M odelo beer that had been placed on the dining room table

. A t the charging conference, the trial court denied a ppellant ’ s request that it charge the jury o n the l e ss er - included offe nses o f criminal trespass and misdemean or ass aul t

. The jury fou nd ap pellant g uilty of bur glary of a habitation and, follo w ing a hearing on punishment, sentenced him to five y ears ’ confinement. This appeal fol lowed.3 DISCU SSION
In his sole issue on appeal , appell ant argues that the trial cour t erred in denyin g his request for a jury instruction on the lesser -included offense of criminal trespass.
A defendant is entitled to an instruction on a lesser

- in cluded offense if i t is

“ esta blish ed by proof of the same or less than all the facts required to prove the o ffense charg e d[.] ” 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 -include d offe nse sh ould be in clud e d in the charge, courts apply a two

- part test. Cavazos v. State , 382 S.W.3d 377, 382 (Tex. Crim. App. 2012)

. “T he first step asks whether the lesser

- included offense is included within the proof necessary to establish the offens e charged .” Sweed v. State , 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). This requires a comparison o f “ the statut ory 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 (T ex . Crim. App. 2018 )

. “I f this threshold is met, the co urt must then
consid er whether th e 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 ste p of the a nalysis is a question of law that does not dep end on the evidence presented at trial

. State v. Me ru , 414 S.W.3d 159, 162 (Tex. Crim. App. 2013).
In State v. Mer u , the Cour t of C riminal A ppeals h eld that criminal trespas s will generally not be a lesser -included offense of burgl ary because the statutory definition of “ entry ”
for the offense of criminal trespas s requ ires proof of greater intrusion than the definition of

“ entry ” for burglary of a habitation

. Id . at 163– 64 . “ In other words, a burg lary can be complete upon only a partial intrusion onto the property, whereas the lesser offense would require a greater
in trusion.” Id

. at 163.4 W hether “ criminal trespass is a lesser

- included offense of burglary turns on the
indictment ’ s specific all egations” ; “ criminal trespass would qualify as a lesser

- included offense
if

the indictment alleges facts that i n clude the full

- body entry into t h e habitation by the
defendant.” Id

. at 164; see DeLeon v. State , 583 S.W.3d 693, 700 (Tex. App. —A ustin 201 8 , pet.
ref ’d). Here, appellant ’s indictment alleges that the appellant “intentionally and knowingly enter[ed] a ha b itation without the effective consent of...the owner,” without all eging an y additional facts that , if proven, would show appella nt entered the habitation with his entire body.
S ince the indictment does not allege facts including full

- body entry , the proof necessary for t he burglar y offense as charged does not require proof of all the elements of criminal trespas s, and appellant fails t o meet t he first prong of the lesser

- included offense analysi s. See Mer u , 414 S.W.3d at 164.
Because the first prong was not met, the tria l court did not err in den ying appellant ’s re quest for a lesser -included instructio n on criminal trespas s
. Consequently, we need not con s ider whether , based on the evidence at trial, a rati onal jury could find that appellant
is guilty only of the lesser o ffense. 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 so le issue.

CONCLUSION
Havin g overr uled app ellant ’s sole issue , w e aff ir

m the trial court ’ s judgment
of conviction.5 ___________________ _____ _

______________ ___ Rosa Lopez Theofanis , Justi ce Befor e Chief Justice Byrne , Justices Triana an d Theofanis
Affirmed
Filed: April 28, 2023
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