Comment

As with burglary, there is no explicit mental state in the criminal trespass statute. Previously, the Committee recommended attaching a mental state to entry (e.g., “The defendant intentionally, knowingly, or recklessly entered a place.”). It did so based on West v. State, 567 S.W.2d 515 (Tex. Crim. App. 1978), a panel opinion that addressed unassigned “fundamental error in the jury charge” in the interest of justice under a repealed statute. Neither West nor its sister cases, Thompson v. State, 574 S.W.2d 103 (Tex. Crim. App. 1978) and West v. State, 572 S.W.2d 712 (Tex. Crim. App. 1978), have been cited for the elements of trespass in a majority opinion from that court since 1979. Holloway v. State, 583 S.W.2d 376, 376–77 (Tex. Crim. App. 1979). Ultimately, the Committee chose to leave this mental state in the instruction with the deletion of “reckless,” which does not apply to conduct. Tex. Penal Code § 6.03(c). The Committee opted, however, not to add an explicit mental state to the lack of consent. The statute effectively satisfies the equivalent of recklessness or knowledge regarding lack of consent by requiring the actor to have notice entry was forbidden or to receive notice to depart. The retention of a mental state attached to entry ensures that only those who were aware of their physical surroundings and should have been aware of the lack of consent are culpable. So construed, trespass continues to be available as a lesser included offense of burglary to the extent permitted by State v. Meru, 414 S.W.3d 159 (Tex. Crim. App. 2013). See CPJC 30.10.