Antione Deshan Gentry v. State ( 2007 )

NO. 07-07-0164-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 20, 2007

______________________________



ANTIONE DESHAN GENTRY, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 108^TH DISTRICT COURT OF POTTER COUNTY;

NO. 54,585-E; HON. ABE LOPEZ, PRESIDING

_______________________________

Before CAMPBELL, HANCOCK and PIRTLE, JJ.

ON MOTION TO ABATE

Appellant Antione Deshan Gentry perfected appeal from a judgment finding him guilty of possession of a controlled substance on his plea of guilty. The guilty plea was the result of a plea agreement made after the trial court denied his written pretrial motion to suppress evidence. No written order on the motion appears in the record, nor does the docket sheet reflect denial of the motion. The only evidence in the record of the ruling is the recitation in the trial court's certification of appellant's right to appeal that "matters were raised by written motion filed and ruled on before trial[.]"

Pending before the court is appellant's motion to abate the appeal to permit the trial court to sign a written order reflecting its ruling. Counsel has provided a letter from the trial judge indicating his decision to deny the motion to suppress and directing preparation of a written order by the prosecuting attorney. The letter does not appear in the record.

The failure to obtain a written ruling prior to trial is not fatal to appellant's right to challenge pretrial rulings on written motions in a plea bargained case. See Salinas v. State, No. 04-06-00427-CR, 2007 WL 595121 (Tex.App.-San Antonio February 28, 2007, pet. ref'd). The written order appellant seeks is, in effect, the order being appealed and is a required part of the clerk's record. See Tex. R. App. P. 25.2(a)(2)(A), 34.5(a)(5). We grant appellant's motion, abate the appeal and remand the cause to the trial court for execution of a written order consistent with its ruling on appellant's motion to suppress. The trial court shall cause the order to be included in a supplemental clerk's record to be filed with the Clerk of this Court on or before August 10, 2007.

Per Curiam

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n he arrived on the scene he heard a lot of yelling and proceeded inside the house. He noticed that the door frame was broken and the living room was in shambles. He described appellant as being in a rage and observed him attempting to assault Amy as appellant's two female friends were trying to get between them. Zamora directed appellant to stop and place his hands behind his back. He complied and was handcuffed and escorted to the patrol car.

Appellant was indicted for burglary of a habitation for entering the residence of Jimmy Rojas without his consent and with intent to commit an assault against him. Appellant does not dispute that the evidence established he entered Jimmy's home without consent or that he assaulted him. Rather, he argues he was entitled to an instruction on the lesser-included offense because the evidence did not show he intended to assault Jimmy, but instead established that he traveled to Hereford to see Amy and confront her about being at Jimmy's residence. Thus, he contends the trial court erred in refusing to instruct the jury on the lesser-included offense of criminal trespass. We disagree.

The decision whether to include an instruction on a lesser-included offense requires a two-step analysis. Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Cr.App. 1993), cert. denied, 510 U.S. 919, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993). First, the lesser-included offense must be included within the proof necessary to establish the offense charged, and second, there must be some evidence that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser offense. Id.; see also Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981).

Burglary of a habitation occurs when a person, without the effective consent of the owner, enters a habitation with intent to commit felony, theft, or assault. Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2003). A person commits criminal trespass if he enters or remains on or in property of another without effective consent and had notice that the entry was forbidden or received notice to depart but failed to do so. § 30.05(a). Criminal trespass is a lesser-included offense of burglary. See Day v. State, 532 S.W.2d 302, 306 (Tex.Cr.App. 1975); see also Wyble v. State, 764 S.W.2d 927, 929 (Tex.App.-Amarillo 1989, pet. ref'd). Thus, the first prong of Rousseau is satisfied.

In order to meet the second prong of the Rosseau analysis, there must be some evidence in the record that appellant is only guilty of criminal trespass. Burglary requires intent and intent to commit an act may be inferred from the defendant's conduct and surrounding circumstances. McGee v. State, 923 S.W.2d 605, 608 (Tex.App.-Houston [1st Dist.] 1995, no pet.); see also Dues v. State, 634 S.W.2d 304, 305 (Tex.Cr.App. 1982).

The evidence shows that appellant arrived at Jimmy's residence in an angry state of mind and forced the front door open. Jimmy testified that when appellant entered the house, "he started coming at [him]," made threats, and began punching him. Only after Jimmy ran out of the house did appellant turn his attention toward Amy.

Antonia Hernandez, one of the female friends that accompanied appellant to Hereford on October 5 and who was dating him at the time of trial, testified for appellant. She claimed appellant was not upset during the drive to Hereford and thought they were going there to meet Amy. She also testified that she did not notice Jimmy's door was broken when she entered the residence during the altercation. Officer Zamora testified that when he questioned Antonia about the incident she was cooperative until he asked questions about the damage to Jimmy's front door.

Considering appellant's conduct in forcing open the door to Jimmy's residence and immediately approaching him while making threats, and the circumstances surrounding the relationships between Jimmy and Amy and Amy and appellant, the jury could infer that appellant intended to assault Jimmy. Furthermore, there is no evidence to indicate that appellant was only guilty of the lesser-included offense of criminal trespass. Thus, appellant did not satisfy the second prong of Rosseau and the trial court did not err in refusing to instruct the jury on the lesser-included offense. Appellant's sole issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

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