Day v. State

OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

On original submission appellant’s conviction was reversed for failure of the trial court to submit a charge on the lesser included offense of criminal trespass. We held that the evidence raised the issue and that under Art. 37.09(1), Y.A.C.C.P., and the facts of this case, criminal trespass was a lesser included offense to the burglary charged.

I

On motion for rehearing the State contends that the evidence does not raise the issue. On this point we remain convinced of the soundness of our opinion on original submission. We perceive the thrust…