Paul Lewis Owens v. The State of Texas--Appeal from County Court at Law of Smith County

NO. 12-02-00087-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

PAUL LEWIS OWENS,

 
APPEAL FROM THE

APPELLANT

 

V.

 
COUNTY COURT AT LAW #1

THE STATE OF TEXAS,

APPELLEE

 
SMITH COUNTY, TEXASMEMORANDUM OPINION

Paul Lewis Owens ("Appellant") was convicted of criminal trespass after a jury trial. The trial court sentenced him to 120 days of confinement in the Smith County Jail. Appellant contends on appeal that the evidence was legally and factually insufficient to support the conviction. We affirm.

 

Background

Appellant was frequently at the Royal Crest Apartments where his friend, Ms. Terry Coble ("Coble"), lived. Their relationship involved a number of loud disputes, and on June 2, 2001, after an especially loud, public argument between Appellant and Coble, the apartment manager instructed that Appellant be forbidden to re-enter the property of the Royal Crest Apartments. A Smith County Deputy Sheriff, Michael Lunsford ("Lunsford"), who lived at the apartment complex, and a Tyler Police Officer called to the scene told Appellant that he was not to come back on the property of the Royal Crest Apartments.

On September 16, 2001, Coble's neighbor noticed Coble's car in the parking lot of the Royal Crest Apartments with the driver's side door open, and her keys and purse on the floor of the car. Appellant's truck was parked next to Coble's car. Concerned about Coble, the neighbor notified the apartment manager who asked Lunsford to check on Coble. After he examined the car and noticed Appellant's truck, Lunsford, who was aware of the couple's numerous heated arguments, went to Coble's apartment to check on her. When no one answered Coble's door after Lunsford's extended knocking and calling for Coble, Lunsford grew increasingly concerned about Coble's welfare. He called the Tyler Police Department, who dispatched two officers. Together they entered the apartment, continuing to identify themselves as peace officers and calling for Coble. In response, Coble came out of a bedroom. The female police officer escorted her from the apartment to verify that she was safe. The police also stated they were concerned that a person who had been ordered from the property may be on the property and asked Coble if they could check the apartment. Coble gave permission to search the apartment and the officers found Appellant in the bedroom. Appellant acknowledged that he knew he was forbidden to be on the property, and was arrested for criminal trespass.

 

Legal Sufficiency

In reviewing a legal sufficiency question, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Whitaker v. State, 977 S.W.2d 595, 598 (Tex. Crim. App. 1998); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995). The trier of fact, here, the jury, is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). The jury is entitled to draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App.-Corpus Christi 1988, pet. ref'd). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). The evidence is measured for sufficiency by looking at the indictment as incorporated in the court's charge to the jury. Fisher v. State, 887 S.W.2d 49, 53 (Tex. Crim. App. 1994)(op. on reh'g).

The offense of criminal trespass, as it relates to this case, is defined as follows:

 

(a) A person commits an offense if he enters or remains on property, including an aircraft, of another without effective consent or he enters and remains in the building of another without effective consent and he:

had notice that entry was forbidden;

. . . .

(b) For purposes of this section:

. . . .

(2) "Notice" means:

oral or written communication by the owner or someone with apparent authority to act for the owner;

. . . .

 

Tex. Pen. Code Ann. 30.05 (a)(1), (b)(2)(A) (West 2002). Thus, the elements of the offense of criminal trespass are "(1) a person, (2) without effective consent, (3) enters or remains on the property or in a building of another, (4) knowingly, intentionally, or recklessly, (5) when he had notice that entry was forbidden or received notice to depart and failed to do so." Bader v. State, 15 S.W.3d 599, 606 (Tex. App.-Austin 2000, pet. ref'd). Significant to our analysis is that "ownership is not an element of criminal trespass. Section 30.05 requires only that the actor remained on property of another after receiving notice to depart." Langston v. State, 855 S.W.2d 718, 721 (Tex. Crim. App. 1993)(emphasis in original).

The information charging Appellant with criminal trespass alleged, in pertinent part, that on the 16th day of September 2001, the Appellant "did, then and there intentionally and knowingly enter property of another, namely MICHAEL LUNSFORD, without the effective consent of MICHAEL LUNSFORD the said owner, and the said defendant had notice that the entry was forbidden."

At trial, both the apartment manager and Lunsford testified that, on June 2, 2001, Appellant was given oral notice that he was forbidden to come onto the property of the apartment complex, which ban included the parking lot, the public areas, and the individual apartments. The apartment manager testified that the Royal Crest Apartments was private property, that she was the manager of the property, and as such, she had control over the property. Further, she delegated authority to Lunsford to exclude people from the property, which she referred to as "warning" people off the property. She also testified that Appellant, as a non-resident, had no rights to use or enjoy the property. Further, she testified that, by virtue of the lease signed by the residents, her authority overrides the authority of a lessee to invite someone barred from the apartment complex. The apartment manager also testified that she had explained to Coble that Coble could not permit Appellant to come onto the property or into her apartment.

Lunsford detailed his June 2 meeting with Appellant banning him from all of the Royal Crest Apartments complex, including Coble's apartment. Lunsford testified that, on September 16, when he and the two Tyler police officers went to Coble's apartment and found Appellant in the bedroom, Appellant admitted he understood that he was not supposed to be there because he had been banned from the property.

Jeffrey Callaway, a Tyler Police Officer, testified that, before arresting Appellant for criminal trespass on September 16, 2001, he checked the police computer for the entry made on June 2, 2001 by the previous officer when Appellant had been banned from the apartment complex and verified the officer had previously given Appellant the warning.

An apartment manager has a superior right to the property against a non-tenant. Further, an apartment manager can delegate to security personnel or other agents the authority to exclude people from the property. State v. Jackson, 849 S.W.2d 444, 446 (Tex. App.-San Antonio 1993, no pet.); see also Restatement (Second) of Agency 17, 26, 69 (1958).

The evidence established every allegation of the information except that Officer Lunsford was "the said owner" of the Royal Crest Apartments. The issue is whether that allegation in the information, that Lunsford was "the said owner," was a material allegation. There is no evidence that Lunsford was the owner of the Royal Crest Apartments; indeed, the evidence established that a corporation owned the property and that Lunsford was furnished an apartment in exchange for providing security at the apartment complex. Therefore, Lunsford's alleged actual ownership was not established by the evidence.

In evaluating whether the allegation that Lunsford was the "owner" of the property is a material allegation, we are guided by the court of criminal appeals which has stated that the State's proof necessary to support a conviction is measured by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). For a given case, such a jury charge would be

 

one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. . . . The standard we formulate today ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted.

 

Id. The court of criminal appeals has further explained that

 

[a] variance between the wording of an indictment and the evidence presented at trial is fatal only if "it is material and prejudices [the defendant's] substantial rights." When reviewing such a variance, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime.

 

Gollihar v. State, 46 S.W.2d 243, 257 (Tex. Crim. App. 2001). The court concluded that "when faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a 'material' variance will render the evidence insufficient." Id.

The allegation that Lunsford was the owner of the property neither deprived Appellant of sufficient information to allow him to prepare an adequate defense at trial nor subjected him to a possible double prosecution for this offense. Consequently, the allegation was not material and the failure to establish that Lunsford was the "owner" of the property was not a material variance.

The uncontroverted evidence establishes that Appellant had been given notice that entry to the Royal Apartments was forbidden, and that Appellant was subsequently found on the property. Therefore, we hold that the evidence is legally sufficient to support the jury finding that Appellant committed the act of criminal trespass. Appellant's issue as to legal sufficiency is overruled.

 

Factual Sufficiency

When reviewing the factual sufficiency of the evidence, we review all of the evidence, but not in the light most favorable to the prosecution. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In conducting our analysis, our duty is to examine the trier of fact's weighing of the evidence. Scott v. State, 934 S.W.2d 396, 398 (Tex. App.-Dallas 1996, no pet.). We consider all the evidence in the record related to an appellant's sufficiency challenge, comparing the weight of the evidence that tends to prove guilt with the evidence that tends to disprove it. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); see also Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). Because we consider all the evidence in conducting a factual sufficiency review, we necessarily consider any reasonable alternative hypothesis raised by the evidence. Richardson v. State, 972 S.W.2d 384, 387 (Tex. App.-Dallas 1998, no pet.). However, the mere existence of a reasonable hypothesis does not render the evidence factually insufficient. Id.

Because the jury is the sole judge of the facts, we must give deference to jury findings. Cain, 958 S.W.2d at 407. However, absolute deference is not the standard. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). The degree of deference we give to jury findings must be proportionate with the facts which we can accurately glean from the trial record. Id. Our factual sufficiency analysis can consider only those few matters bearing on credibility that can be fully determined from the cold appellate record. Id. Unless the appellate record before us reveals that a different result is appropriate, we must defer to the jury's determination concerning what weight to give contradictory testimonial evidence. Id. This is because resolution often turns on an evaluation of credibility and demeanor, and the jury was in attendance when the testimony was delivered. Id. We then accord this evidence appropriate consideration in the context of our overall analysis. Id. at 8-9. A factual sufficiency review encompasses the formulations used in both civil and criminal cases. Id. at 11. This means that the evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. The court of criminal appeals in Johnsonfurther states:

 

[T]he complete and correct standard a reviewing court must follow to conduct a Clewis factual sufficiency review of the elements of a criminal offense asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate taken alone, is greatly outweighed by contrary proof.

 

Id. Applying these guidelines to the evidence, we hold that the evidence was factually sufficient for the jury to find Appellant guilty as charged. Appellant's issue as to factual sufficiency is overruled.

 

Conclusion

There being legally and factually sufficient evidence to support the verdict, the judgment of the trial court is affirmed.

 

SAM GRIFFITH

Justice

 

Opinion delivered June 11, 2003.

Panel consisted of Worthen, C.J., and Griffith, J.

 
(DO NOT PUBLISH)