Jackson Jr., Richard v. The State of Texas--Appeal from County Court at Law of Waller County

Affirmed and Memorandum Opinion filed May 5, 2005

 Affirmed and Memorandum Opinion filed May 5, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-00945-CR

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RICHARD JACKSON, JR., Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law

Waller County, Texas

Trial Court Cause No. CC03 214

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

Richard Jackson, Jr. appeals a conviction for criminal trespass[1] on the grounds that the trial court erred by: (1) ordering appellant=s wife to testify against him after she invoked the spousal privilege against testifying; (2) denying a directed verdict for appellant; and (3) sustaining the State=s objection that community property could not be argued in closing. We affirm.

Background

Upon appellant=s release from prison, his wife picked him up and took him to her apartment. The couple had separated before appellant entered prison, and appellant had never lived in the apartment. A subsequent argument between appellant and his wife prompted an unknown person to call the police. When the officer arrived there, he observed that the wife was crying and her purse was on the floor with the contents scattered about. The wife did not respond to the officer=s question whether she had been assaulted, but stated that she wanted appellant to leave. Although appellant initially refused, the officer eventually persuaded him to do so, after which he was arrested.

Testimonial Privilege

Appellant=s first issue contends that the trial court erred by ordering appellant=s wife to testify in the case after she claimed spousal privilege. In a criminal case, the spouse of an accused generally has a privilege not to be called as a witness for the state. Tex. R. Evid. 504(b)(1).[2] However, this privilege does not apply in any proceeding in which the accused is charged with a crime against his (or her) spouse. Tex. Code Crim. Proc. Ann. art. 38.10 (Vernon 2005); Tex. R. Evid. 504(b)(4)(A). This exception eliminates the spousal testimonial privilege for prosecutions in which the testifying spouse is the alleged victim of the crime by the accused. Tex. R. Evid. 504 cmt.

Appellant contends that the foregoing exception does not apply in this case because the charged offense of criminal trespass is an offense against property, not against a person. However, appellant cites no authority supporting such a narrow interpretation of Acrime against the person=s spouse@ as meaning only crimes against the person of a spouse. In addition, because rule 504(a)(4)(C) uses the phrase, Acrime against the person of the spouse,@ we must construe Acrime against the spouse@ as having a broader meaning so as to give effect to the phrase Athe person of@ and not render it redundant.[3] Moreover, the bill analysis for the House Committee Report on Senate Bill 128, which added article 38.10 to the Code of Criminal Procedure, states as background for the proposal, that victims of domestic violence are often the only witnesses to the violence and, if given a choice whether to testify, may be coerced by the abuser into not doing so.[4]

In this case, appellant was charged with a criminal trespass[5] of his wife=s residence, which he had never inhabited, following a heated altercation between them. We conclude that this offense comes within both the language of rule 504(b)(4)(A) and the policy it seeks to promote. Accordingly, appellant=s first issue does not demonstrate that appellant=s wife had a privilege not to testify in this case[6] and is overruled.

Directed Verdict

Appellant=s second issue challenges the trial court=s denial of his motion for directed verdict on the ground that the apartment his wife leased during their marriage was community property for which appellant had a joint right of possession and control absent a written agreement or order. Therefore, appellant contends that his wife=s apartment was not Aa building of another@ for purposes of the definition of criminal trespass. See Tex. Pen. Code Ann. ' 30.05 (Vernon Supp. 2004) (emphasis added).

Ownership is not an element of the offense of criminal trespass,[7] and proof of ownership is a greater burden than is required to prove Aof another.@ State v. Kinsey, 861 S.W.2d 383, 385 (Tex. Crim. App. 1993). Although the law is unsettled as to what exactly distinguishes the two concepts, it logically follows that evidence which is sufficient to prove ownership is more than adequate to prove Aof another.@ The definition of an Aowner@ includes a person who has a greater right of possession than the actor. Tex. Pen. Code Ann. ' 1.07(35) (Vernon Supp. 2004B2005). Where a married couple has separated and one spouse has established a new residence away from that which the couple shared, then that spouse has a greater right of possession to that new residence than the other spouse and, thus, a right to refuse consent for the other spouse to enter those premises, despite their marital status still being in effect. See Stanley v. State, 631 S.W.2d 751, 753 (Tex. Crim. App. 1982).

In this case, after appellant and his wife had separated, she leased the apartment solely in her name, lived in it for over two years, and paid the rent. Appellant had never lived at, or even visited, the apartment before the day of the offense or paid rent for it. Under these circumstances, appellant=s second issue fails to demonstrate that his wife did not have a greater right of possession to the apartment than appellant, such that his failure to depart after receiving her notice to do so did not constitute criminal trespass. Therefore, appellant=s second issue is overruled.

Jury Argument

Appellant=s third issue challenges the trial court=s refusal to allow closing argument on his right of access to the apartment based on the marital and community property relationship between the parties. For the reasons set forth in the preceding section, appellant=s wife had a greater right to possession of the apartment regardless of any community property interest he might have had in it. Therefore, any argument that a community property interest was relevant in the jury=s decision would have been an incorrect statement of the law and contrary to the court=s charge, and the trial court did not err in denying appellant=s request to so argue.[8] Accordingly, appellant=s third issue is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed May 5, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

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

[1] A jury convicted appellant, and the trial court sentenced him to 65 days in county jail.

[2] To whatever extent, if any, the confidential communication privilege set forth in Texas Rule of Evidence 504(a) applies in a criminal case, appellant does not appear to rely on it and has not identified any specific communication that would meet the definition of a confidential communication under rule 504(a)(1). Therefore, we confine our review to the rule 504(b) privilege.

[3] See, e.g., Badgett v. State, 42 S.W.3d 136, 139 (Tex. Crim. App. 2001) (reciting that statutes are to be construed, if at all possible, to give effect to all parts so that none are construed as void or redundant).

[4] See House Comm. on Criminal Jurisprudence, Bill Analysis, Tex. S.B. 128, 74th Leg., R.S. (1995).

[5] A person commits this offense if he enters or remains on the building or property of another without effective consent and he had notice that entry was forbidden or was told to depart and refused to do so. Tex. Pen. Code Ann. ' 30.05 (Vernon Supp. 2004).

[6] We therefore do not address whether the wife=s objection to testifying was sufficient to invoke any such privilege.

[7] Langston v. State, 855 S.W.2d 718, 721 (Tex. Crim. App. 1993).

[8] See, e.g., Burke v. State, 652 S.W.2d 788, 790 (Tex. Crim. App. 1983) (noting that an argument containing a statement of the law contrary to the court=s charge is error).