How does abandoning the habitation allegation affect a criminal trespass case in Texas?
This question has been addressed in 2 Texas court opinions:
Westyn Gregory Whetstone v. The State of Texas
COA07 — February 5, 2026
In Whetstone v. State, a defendant was convicted of criminal trespass, but the written judgment erroneously labeled the offense as a Class A misdemeanor involving a 'habitation' despite the State having abandoned that specific allegation at trial. The Seventh Court of Appeals analyzed the record under Texas Rule of Appellate Procedure 43.2(b), which allows appellate courts to reform judgments to 'speak the truth' when they have the necessary information to do so. The court held that because the jury charge and sentencing only reflected a Class B offense, the written judgment contained a clerical error that must be reformed to reflect the actual adjudication.
Litigation Takeaway
“Never rely solely on the 'four corners' of a criminal judgment in custody litigation; clerical errors can incorrectly escalate a minor offense into a 'habitation' crime that triggers heightened scrutiny under the Texas Family Code. Always audit the underlying jury charge and trial records to ensure your client's criminal history is accurately represented and seek a reformation or judgment nunc pro tunc if errors are discovered.”
Westyn Gregory Whetstone v. The State of Texas
COA07 — February 5, 2026
In Whetstone v. State, a defendant was convicted of Class B misdemeanor criminal trespass, but the trial court's written judgment incorrectly recorded the offense as a more serious Class A misdemeanor involving a habitation. On appeal, the Seventh Court of Appeals performed an independent review of the record and found that the State had explicitly abandoned the higher charge before the jury was instructed. Applying Texas Rule of Appellate Procedure 43.2(b), the court analyzed the discrepancy as a clerical error and held that it had a mandatory duty to reform the judgment to 'make the record speak the truth.' The court modified the judgment to reflect the correct statute and offense degree, ensuring the defendant's criminal history accurately reflected the actual adjudication.
Litigation Takeaway
“Always verify the underlying record of a criminal conviction used in family law litigation; clerical errors can 'inflate' a minor offense into a serious crime, potentially unfairly biasing a judge's decision regarding child custody or parental fitness.”