Peter Andrew ARNOLD, Appellant, v. The STATE of Texas, Appellee.
No. 689-93.
Court of Criminal Appeals of Texas, En Banc.
Dec. 15, 1993.
867 S.W.2d 378
Peter Andrew Arnold, pro se. John B. Holmes, Jr., Dist. Atty., Timothy G. Taft and Chuck Rosenthal, Asst. Dist. Attys., Houston, Robert Huttash, State‘s Atty., Austin, for State.
BAIRD, Judge.
Appellant was convicted of criminal trespass.
I.
The Court of Appeals set forth the elements of trespass and noted that under
At appellant‘s trial, Mr. Cestero testified that he is a Deputy United States Marshal and the supervisor of the enforcement operation section of the marshal‘s office in Houston. He testified that the Marshal Service is responsible for security at the courthouse, and that appellant did not have [Cestero‘s] consent to be in the courthouse that day. No testimony was presented that Mr. Cestero owned the federal courthouse.
The fact that Mr. Cestero may have had a greater right to possession of the building than appellant is not sufficient to satisfy the criminal trespass statute, which
requires that the act occurred on property of another. [Citation omitted.]1
Arnold v. State, No. 01-91-1141-CR, 1993 WL 93451, *1, *2 (Tex.App.-Houston [1st Dist.] April 1, 1993).
II.
In the similar case of Langston v. State, 812 S.W.2d 406 (Tex. App. - Houston [14th Dist.] 1991), the defendant was charged by information with trespassing on property “owned by” the complainant. The Court of Appeals reversed, holding evidence of a greater right to possession was not sufficient to support the conviction. Id., 812 S.W.2d at 408. We began our review of that decision by noting
We then rejected the holding of the Court of Appeals that a greater right of possession was not sufficient to prove ownership. Rather, we noted that the definition of owner under
Accordingly, the State‘s petition for discretionary review is granted, the judgment of the Court of Appeals is vacated and the case remanded to that Court for further proceedings consistent with this opinion.
CLINTON, Judge, dissenting.
The majority continues to disregard the true connotation of the core statutory term in the definition of the offense of criminal trespass set out in
The former statutes and earlier cases “obviously presuppose that the ‘property of another’ contemplates ‘ownership’ in the sense of ‘belonging to,’ ‘possessed by’ or ‘held by’ some person other than the alleged trespasser who is bereft of any such ‘ownership.‘” Kinsey v. State, 861 S.W.2d 383, at 385-386 (Tex.Cr.App.1993) (Clinton, J., concurring).
The present statutory phrase embraces “only ‘real property of another,’ ‘of’ being used in the sense of ‘owning’ such real property.” Langston & Sjodin, 855 S.W.2d 718, at 722 (Tex.Cr.App.1993) (Clinton, J., concurring) (emphasis in original); Kinsey v. State, 861 S.W.2d 383, at 385 (Tex.Cr.App.1993) (Clinton, J., concurring) (information may be reasonably and fairly read to allege that appellee remained on the property of “Norman Whitlock (‘another‘), the owner thereof“).
As thus used in the criminal trespass statute the Legislature understood it was protecting the “property of another” whose “ownership” and concomitant rights are exclusive against intruders who have no right of possession whatsoever. Vanderburg v. State, 843 S.W.2d 286, at 288-289 (Tex. App. - Houston [1st] 1992). Joint ownership can be a defense to criminal trespass because the defendant who enters his jointly owned property does not enter “property of another,” that is, “a person other than the [defendant].” Palmer v. State, 764 S.W.2d 332, at 334 (Tex.App. - Houston [1st] 1988), and cases cited, no PDR. Therefore, a finding of “greater right of possession” is not sufficient to support a “conviction for criminal trespass.” E.g., State v. Staley, 814 S.W.2d 534, at 535 (Tex.App. - Houston [1st] 1991), PDR refused; Langston v. State, 812 S.W.2d 406, at 408 (Tex.App. - Houston [14th] 1991), af-
Because the majority is laying groundwork for considerable confusion, if not much mischief, I must dissent.
MILLER and MEYERS, JJ., join.