FILED

April 11, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9508-CR-00237

)

Appellee, )

)

) SHELBY COUNTY

VS. )

) HON. JOSEPH B. DAILEY

THEODORE F. HOWARD, ) JUDGE

)

Appellant. ) (AGGRAVATED BURGLARY)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SHELBY COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

DANIEL FLATT CHARLES W. BURSON

Assistant Public Defender Attorney General & Reporter

201 Poplar - Suite 2-01

Memphis, TN 38103

TONY BRAYTON CLINTON J. MORGAN

Assistant Public Defender Assistant Attorney General

201 Poplar - Suite 2-01 450 James Robertson Parkway

Memphis, TN 38103 Nashville,TN 37243-0493

JOHN W. PIEROTTI

District Attorney General

DAVID HENRY

Assistant District Attorney General

District Attorney General’s Office

201 Poplar Avenue, 3rd Floor

Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
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OPINION

The appellant, Theodore F. Howard, appeals as of right pursuant to Rule

3 of the Tennessee Rules of Appellate Procedure. The Appellant was convicted

of aggravated burglary in the Shelby County Criminal Court. The Appellant was

sentenced by the trial court to serve fifteen (15) years as a Range III Career

Offender. The sole issue the Appellant raises for appeal is whether the trial court

erred in failing to instruct the jury on the lesser offense of burglary. We affirm the

judgment of the trial court.

At about 10:00 a.m. on September 4, 1994, a neighbor to the house

located at 1155 Central Avenue in Memphis heard a loud banging noise. The

neighbor and his wife went to their back door and observed a man, who they later

identified as the Appellant, breaking out a window on the back door of the house

with a brick. The property known as 1155 Central Avenue was then in the

possession of United American Bank due to a foreclosure on the property. The

house on that property had been vacant for approxim ately two months prior to

September 4, 1994. No one other than the bank’s agents had permission to

enter or take any property from 1155 Central Avenue. The neighbors saw the

Appellant enter the house. The neighbors notified the police, and then the wife

and another neighbor waited at the front of the house while her husband, armed

with a shotgun, waited at the back of the house for the police to arrive. 

The Appellant attempted to leave the house with a ceiling fan, but then saw

the neighbor waiting at the back of the house. The Appellant put the fan down

in the doorway of the house. The neighbor waiting in the back told the Appellant
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the police were on their way and to stop, but the Appellant proceeded to go

around the side of the house. The neighbor observed what appeared to be a

shiny weapon in the Appellant’s hand, and he followed the Appellant to the front

of the house. He told the Appellant to put his weapon down and to get down on

the sidewalk. The Appellant complied and was held there by the neighbor until

the police arrived. The police officer who arrived took the Appellant into custody

based upon the information of the witnesses. Appellant gave a statement to the

police, introduced into evidence, in which he admitted breaking into the house,

taking the fan, and being caught and detained by the neighbors until the police

arrived.

I.

The issue Appellant raises for this Court’s review is whether the trial court

committed reversible error by failing to charge the jury with the instruction for the

lesser included offense of burglary. Only when there is some evidence upon

which reasonable minds could convict the defendant of a particular lesser offense

is the court required to instruct regarding that offense. Johnson v. State, 531

S.W.2d 558, 559 (Tenn. 1975); State v. Atkins, 681 S.W.2d 571, 577 (Tenn.

Crim. App. 1984), cert. denied, 470 U.S. 1028 (1985). The practice of so

charging, when there is no evidence to support any lesser included offenses, is

not favored. State v. Mellons, 557 S.W .2d 497, 499 (Tenn. 1977); Whitwell v.

State, 520 S.W .2d 338, 343 (Tenn. 1975). 

Various evidence was presented at trial by the State to prove that the

building was a habitation. First, an employee of the United American Bank, who
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worked in the special asset department handling foreclosures and repossessions,

testified that the house at 1155 Central Avenue was a single-fam ily residence in

a residential area of Memphis. This employee also stated that the property was

not occupied at the time of this burglary. A second witness, a neighbor living

behind the property at 1155 Central Avenue, testified that the house was empty

for approxim ately two months prior to the time of the burglary. Other evidence

as to the nature of the house at 1155 Central was presented in the form of

photographs of the single-family residence. No proof that the house was not

designed as a family residence was offered at trial.

The Appellant contends that because the house at 1155 Central Avenue

was vacant at the time the Appellant entered the house, the trial court erred in its

failure to instruct the jury on burglary. According to Tenn. Code Ann. § 39-14-

403, a person commits aggravated burglary when he or she commits burglary of

a habitation as defined in Tenn. Code Ann. § § 39-14-401 and 39-14-402. A

“habitation” is defined as “ . . . any structure, including buildings, mobile homes,

trailers and tents, which is designed or adapted for the overnight accommodation

of persons . . .” Tenn. Code Ann. § 39-14-401(1)(A). “A person com mits burglary

who, without the effective consent of the property owner enters a building, other

than a habitation (or any portion thereof) not open to the public, with intent to

commit a felony, theft or assault . . . .” Tenn. Code Ann. § 39-14-402(a)(1).

The appellant further argues that at some point after a house is unoccupied

the house ceases to be a habitation. After the legislature rewrote the criminal

code in 1989, there ceased to be any requirement that the structure be occupied

at the time of the burglary in order for the structure to be considered a habitation.
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State v. James Ford, III, No. 02C01-9304-CR-00078, Shelby County (Tenn.

Crim. App., Jackson, filed August 3, 1994), perm. to appeal denied (Tenn. 1995).

In Ford, the defendant was convicted of aggravated burglary of a house which

was vacant. This Court held that the house that was burglarized was obviously

designed for overnight accommodation and was clearly a “habitation.” From all

testimony and other pictorial evidence within the record, the house which was

entered by the Appellant was obviously designed for overnight accommodation

and, therefore, was within the Legislature’s definition of a “habitation.”

As the evidence is clear as to the nature of the habitation which the

Appellant admittedly entered, the issue of the court’s failure to give an

instruction on the lesser offense of burglary is without merit.

We affirm the conviction of the trial court.

____________________________________

THOMAS T. WOODALL, JUDGE

CONCUR:

___________________________________

JOE B. JONES, Presiding Judge

___________________________________

PAUL G. SUMMERS, Judge