SYLVIA DIANE WILSON v. THE STATE OF TEXAS--Appeal from County Court at Law of Calhoun County

NUMBER 13-04-090-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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  SYLVIA DIANE WILSON, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

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On appeal from the County Court at Law

of Calhoun County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Sylvia Diane Wilson, was charged by information with intentionally and knowingly entering another's property without the effective consent of the owner and with notice that her entry was forbidden.[1] A jury found Wilson guilty of the offense of criminal trespass as charged in the information and assessed punishment at 120 days confinement in the county jail and a $2,000.00 fine. The trial court has certified that this is not a plea bargain case and that Wilson has the right of appeal. See Tex. R. App. P. 25.2. By one point of error, Wilson complains that the evidence was insufficient to establish (1) the manner and means of committing the act of criminal trespass and (2) that she had notice not to enter the premises. We affirm.

I. Background

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See id. at rule 47.4.

II. Analysis

By her sole point of error, Wilson contends that while the State presented compelling evidence that she refused to vacate the property after receiving notice to do so by those with authority, it chose not to plead that particular manner and means of committing the act of criminal trespass, but rather chose to plead that Wilson intentionally and knowingly entered another's property without effective consent and with notice that the entry was forbidden. See Tex. Pen. Code Ann. ' 30.05(a)(1) & (2) (Vernon Supp. 2004-05) (providing that an individual is prohibited from "enter[ing] or remain[ing] on or in property . . . of another without effective consent . . . and he: (1) had notice that the entry was forbidden; or (2) received notice to depart but failed to do so."). Having chosen to plead unlawful entry, Wilson asserts that the State did not present evidence as to how, when or where Wilson entered the property or that she had notice not to enter the premises. We construe this contention as an evidentiary issue raised by an alleged variance between the information's allegations and the State's proof.

A variance occurs when there is a discrepancy between the allegations in the information and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument. Id. In the present case, however, it is apparent that the State presented evidence to prove the case as charged, that Wilson, having notice that her entry was forbidden, entered the property without the effective consent of the owner.[2] See Tex. Pen. Code Ann. ' 30.05(a)(1) & (2) (Vernon Supp. 2004-05). Thus, we cannot conclude a variance existed between the information's allegations and the State's proof.

Having determined that there was no variance, to the extent Wilson's contention could be construed as a sufficiency challenge to the State's proof of unlawful entry, that argument has been waived. In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. See Tex. R. App. P. 38.1(h). Because Wilson presented no argument or citations to the record or to authority on the sufficiency issue, she has waived error. See id.; Tufele v. State, 130 S.W.3d 267, 271 (Tex. App.BHouston [14th Dist.] 2002, pet. ref'd).

Wilson's sole point of error is overruled.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and

filed this 14th day of July, 2005.

[1]See Tex. Pen. Code Ann. ' 30.05(a)(1) (Vernon Supp. 2004-05).

[2]The record reveals that just prior to dawn on August 26, 2002, Wilson was found at the Dow Chemical Company Plant on a platform approximately eighty feet high, where she had hung a yellow protest banner. The platform was attached to an air separation unit. When law enforcement personnel arrived they discovered Wilson had secured herself to a railing with a chain and flex tubing. This incident followed an extended period of demonstrating and protesting near a main entrance to the plant.

Without objection, eight of the State's fifteen exhibits were offered at trial to prove Wilson had notice that her entry onto the property was forbidden. These exhibits showed fencing, signs, barb wire, and gates in and around the plant property. Testimony from various witnesses established that signs, fences, barb wire, and gates, including a closed and locked maintenance gate near the air separation unit where Wilson was found, surrounded that area and were in place the day Wilson entered the property. See Tex. Pen. Code Ann. ' 30.05(b)(2)(B) & (C) (Vernon Supp. 2004-05) (defining "notice" to include "fencing or other enclosure obviously designed to exclude intruders" and "signs posted on the property . . . reasonably likely to come to the attention of intruders, indicating that entry is forbidden").