Comment

The court of criminal appeals has long held that criminal trespass can be a lesser included offense of burglary of a habitation. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). However, the court has most recently noted that the definition of “entry” in Tex. Penal Code § 30.05(b) makes the showing of only a partial entry by the defendant insufficient for a conviction of criminal trespass. This same partial entry, however, is all that is needed to support a burglary conviction. 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. Because criminal trespass requires proof of greater intrusion than burglary, the divergent definitions of “entry” will generally prohibit criminal trespass from being a lesser included offense of burglary. State v. Meru, 414 S.W.3d 159, 163–64 (Tex. Crim. App. 2013). Criminal trespass would qualify as a lesser included offense if the indictment alleged facts that include the full-body entry into the habitation by the defendant. Meru, 414 S.W.3d at 164; see also Andrus v. State, 495 S.W.3d 300, 308–09 (Tex. App.—Beaumont 2016, no pet.); Smith v. State, 466 S.W.3d 871, 874–75 (Tex. App.—Texarkana 2015, no pet.); Shakesnider v. State, 477 S.W.3d 920, 924–25 (Tex. App.—Houston [14th Dist.] 2015, no pet.).