Allen, Teresa Jean v. The State of Texas--Appeal from Co Crim Ct at Law No 7 of Harris County

Affirmed and Opinion filed _____________, 2002

Affirmed and Memorandum Opinion filed May 1, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00355 -CR

____________

TERESA JEAN ALLEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 7

   Harris County, Texas

Trial Court Cause No. 1099165

 

M E M O R A N D U M O P I N I O N

A jury found appellant guilty of misdemeanor criminal trespass and assessed punishment at 30 days confinement, probated for one year, and a fine of $100. Appellant asserts the evidence was both legally and factually insufficient, and the trial court erred in denying her request for a jury instruction. We affirm.

Legal and Factual Sufficiency

Appellant contends the evidence is legally and factually insufficient to support her conviction for criminal trespass. We apply the usual standards of review. See Reyes v. State, 84 S.W.3d 633, 636 (Tex. Crim. App. 2002) (legal sufficiency); King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000) (factual sufficiency).

In early October 2001, appellant, a member of the Local Advisory Board of KPFT radio station,[1] arrived at the station to observe on-air fund raising efforts. When Mary Gardner[2] answered the door, appellant identified herself by name, stated she was a member of the local advisory board, and explained she would be monitoring the volunteers at the phone bank. Mary Gardner informed her husband Rick Gardner[3] and Molly O Brien Ganter[4] of appellant s presence. Shortly thereafter, Mrs. Gardner and Mrs. Ganter returned to find appellant had left.

Several minutes later, witnesses heard Ganter cry out for help. Appellant was attempting to re-enter the station by pushing her way through Ganter, who was holding the door closed. The struggle ended when appellant shoved the door open and fell on top of Ganter. As a result of the uproar, Mrs. Gardner called the police. Appellant remained in the lobby, sitting on a step until the police arrived. When asked why she refused to leave, appellant replied she had a right to be there.

Upon arrival of the police, Mr. Gardner, aware that appellant was a member of the local advisory board, advised the officers that he was in control of and had responsibility for the station.[5] He also told the officers he wanted appellant to leave the station. When an officer explained to appellant that she had to leave, she refused. After a brief investigation, appellant was arrested.

A person commits criminal trespass if 1) she enters or remains in a building of another without effective consent and 2) she received notice to depart but failed to do so. Tex. Pen. Code 30.05(a)(2). Because appellant refused to leave the premises upon Mr. Gardner s request, we need not decide whether appellant s initial entry or subsequent re-entry by force constituted criminal trespass.

Appellant s sole challenge to the evidence is that she believed in good faith that (as a member of the local advisory board) she had a right to enter and remain at the station, and thus lacked the requisite intent for criminal trespass. She relies on Gornick v. State, in which the Texarkana court held the trespass statute does not criminalize acts that are undertaken in good faith as the proper exercise of ownership under a claimed right. 947 S.W.2d 678, 680 (Tex. App. Texarkana 1997, no pet.). For three reasons we disagree.

First, appellant does not assert an ownership right. In Gornick, the appellant entered the property under the authority of a deed he obtained pursuant to a disputed sale. See 947 S.W.2d at 681. Here, no evidence indicated members of the local advisory board had a possessory interest or other right to exercise control over the station s building.

Second, this court has held that a person having no possessory interest, but with a bona fide claim of access to property, must assert that claim in civil proceedings; it is not an excuse to a trespass prosecution. See Gollinger v. State, 834 S.W.2d 553, 555 56 (Tex. App. Houston [14th Dist.] 1992, no pet.) (affirming trespass conviction of labor representative who claimed a right to be on premises pursuant to collective bargaining agreement and invitation).

Third, a defendant s accidental or mistaken entry onto the property of another is criminal trespass when the defendant intentionally, knowingly, or recklessly refuses to leave after receiving notice to depart from the owner. See id. at 556. Here, it is undisputed appellant was told to depart the premises and thereafter refused.

Mr. Gardner, a 30-year volunteer at the station, was both running the control booth and serving as the on-air personality at the time of the offense. He requested that appellant leave the premises, which she refused. Under these circumstances, the jury could determine that Mr. Gardner had a greater right to the property than appellant and the authority to request that appellant leave. See Vanderburg v. State, 874 S.W.2d 683, 684 (Tex. Crim. App. 1994) (holding that a bailiff had a greater right of possession of a hallway in a public building outside of a courtroom). Accordingly, we find the evidence legally and factually sufficient to support appellant s conviction.

Jury Instruction

Appellant additionally contends the court erred in denying appellant s request for the following jury instruction: If a person is acting under a bona fide claim of right, albeit ill-founded, he is not guilty of criminal trespass. Generally, if evidence raises the issue of a defensive theory, it must be included in the court s charge. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). However, for reasons previously mentioned, appellant s evidence did not raise a valid defensive theory. We find the trial court did not err in denying appellant s request.

The judgment is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed May 1, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Edelman.

Do Not Publish Tex R. App. P. 47.2(b).

[1] KPFT is an affiliate of Pacifica Foundation which is governed by the Pacifica National Board. The local advisory board reports to and advises the national board.

[2] Mary Gardner was a station volunteer and wife of complainant Rick Gardner.

[3] Rick Gardner had been a volunteer at KPFT for about 30 years. For the last nine years he served as a deejay and host of the current show.

[4] Mrs. O Brien Ganter is the wife of Garland Ganter, the general manager at the radio station.

[5] KPFT is a public radio station and a number of employees who handle the day-to-day business of the station are volunteers like Mr. Gardner. However, the station did employ eight paid employees including a General Manager, but none of the paid employees were present at the station at this particular time.