*1 718 give alone, then,
sense that
it ‘fails to
of
lant’s conduct
and
the court
ordinary intelligence fair notice that his must examine whether that conduct was
contemplated
clearly prohibited by
conduct is forbidden
the statute.
statute,’
Harriss,
United States v.
347 U.S.
cause, appellant
this
instructed
In
[,
808,
(1954),
612 74 S.Ct.
98 L.Ed.
and
989]
give
his
his son a raise in
subordinates
encourages arbitrary
because it
and erratic
salary
daughter
promotion
and his
and
Papachristou,
arrests and convictions.”
fact,
raise.
In
when confronted with the
officials
Texas.
Boykin
See
(Tex.Crim.App.1992).
stances is not sufficient. Parent v. (Tex.Crim.App.1981). That is, reviewing court must look at *2 Zakes, Houston, appellants.
Tom Holmes, Jr., Atty., B. Dist. John Peters, Roger Brigitte A. Haseman and Houston, Attys., Asst. Dist. Robert Hut- tash, Austin, Atty., State’s for the State. OPINION ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW BAIRD, Judge.
Appellants were convicted of criminal trespass. Tex.Penal Ann. 30.05. Code Appeals Langston The Court of reversed. granted We [14th Dist.] petition discretionary review State’s Appeals to determine whether the Court of correctly held the evidence was insufficient support appellants’ convictions.1 We will affirm.
I.
Karen Jones was the director of Clinic, facility West a medical which performed lawful abortions. On the date alleged large of the offense a number protestors arrived at the clinic and several way Appellants forced their into the clinic. never entered the clinic. security guard,
The clinic testified that painted he line across the drive- granted following grounds 1.We private for review: easement utilized public owner is Appeals 1. The Fourteenth Court of erred Appeals failing 3.The Fourteenth Court of erred sufficiency in to examine the that, case, holding trespass charge evidence in in a criminal that was actu- ally given jury. private property prevail owner could not "greater The Fourteenth Court of erred that the owner had a that, case, holding in a than way clinic, distinguish guilt/innocence entrance to the between public’s required the clinic’s phase to find that Karen property.2 attorney The clinic’s deter- Jones “owned” mined the location of the line. The Court of held: Appellants never *3 property crossed the line. satisfy In order to the third element ... Between property the street and the line trespass statute, of the criminal the state drainage is a paved driveway ditch and a proving appellants has the burden of that leading to the clinic. Several witnesses property and remained on of an- entered property believed the was an easement. other. The here sets forth [information] However, testimony there was no as to the property whose it was that type of easement or held title to the who allegedly trespassing. lants were property. Jones testified the clinic had property was described as “owned care, management and control over the finding “greater A Karen Jones.” allegation The instant arose in Karen Jones is appellants proper- when failed to leave this support sufficient not conviction un ty- here. der [information] alleged appellants: The informations that pet.); no. [1st Dist.] on or 1989 did ... about NOVEMBER 1.07(a)(4), (24). Tex.Penal Code Ann. unlawfully, intentionally
then and there proven The State has that Karen and, knowingly receiving enter after Jones, director, proper as clinic “owned” depart, notice to remain ON PROPERTY owned JONES, ty [property] Appel line. by KAREN outside hereafter styled Complainant, public lants were arrested on a easement. without the ef- Complainant.4 appellants fective consent of the There is were 2. The 3. Jones JONES: JONES: It looks twenty-five seventy-two feet .-.. and in from the A. between the point, yellow. A. painted into the concrete at that clinic loca- tion? “Property Line”. is not dants ... were on the street side—if the evi- Q. Q. dence showed that Q. Q. Is that a thick Q. describe it for the members of the line? to me as to that where the according A. Based on the ty and that is the information that was Yes, And, And, ... security guard ... ... how there’s a—a—a stencil in there that initially Yes, It comes out here [******] [******] [******] at the north entrance. is there a delineation of what am not correct Officer, to the records. building, feet, we do have did clinic I testified like a being and then you survey is line runs on the—on the— testified: yellow of the West they and then comes down there parking know as follows: goes were on the street property yellow line or could a line the— thirty-two where to and the lot private proper- across another these well, type line drawn line— drawn jury? put Clinic? line at that Defen- public inches is given well, says you or 5. The Jones: Jones: We—the clinic—mow the JONES: If supplied. Unless otherwise beyond a dant, yellow by your ter then yellow line. Jones trol or down the charged. hereafter effective consent of the main on control, management. possession than the defendant. Q. Do whether lawful or have been on the clinic side of the Isn’t that true? Therefore, “Possession” "Owner" means a about the 4th and, jury charge provided: property, possession and there Yes, [appellant], later testified: line you management ****** verdict after weeds, styled they we do. reasonable yellow up also have if receiving were on you believe from the evidence intentionally to Schumacher Street? means actual find the and cleans the trash day in Harris indicated, line, then, not, Complainant, care, custody doubt that Complainant, you the other side of the or a November, 1989, the area outside the notice to property!?] defendant County, who KAREN all greater right to they grass, care, custody, knowingly emphasis without the has title to depart, the defen- would not guilty and con- out of it. and cuts JONES, will did en- re- on as is where, here, designated inside the line true as was agent Viewing might line of the clinic. that it not con fact instructed the evidence in the most favorable vict without such elements be verdict, trier of reasonable doubt. See beyond rational fact true beyond could not have found Boozer v. a reason- appellants able doubt that entered or re- Crim.App.1984).
mained on of Karen Jones.... Id. at elected to 588. Because State Langston, prosecute appellant “unnecessarily on an specific ownership allegation,” the issue of II. However, germane to the instant case. The State contends the Court of ownership because is not an element of the *4 failing in sufficiency erred to review the of trespass, offense of criminal we need not light the evidence in of the general applicability address its to holding the evidence was not sufficient trespass holding today cases. Because our was prove property to the Jones. specific, is case we need not decide wheth- See, 1, supra. fn. er, case, trespass private in a criminal property prevail upon owner could not Appeals The Court of set forth the ele- finding greater right that the owner had a 1) trespass ments of criminal as follows: Therefore, possession to than person, 2) consent, 3) without effective en- ground the State’s third for review is dis- ters property any or remains on the missed. another, 4) building of knowingly or inten- 5)
tionally
recklessly,
when he had notice
III.
entry
that
Langston,
was forbidden.
812
proceed
State,
We now
to the State’s first
v.
(citing
S.W.2d at 408
Johnson
665
grounds
and second
In
554,
review.
review
(Tex.App.
S.W.2d
[1st
— Houston
ing
sufficiency
1984,
the
of the
to sus
pet.))
and Tex.Penal
Code
Dist.]
conviction,
appellant’s
appellate
tain
the
Ann.
30.05.6
§
court must determine whether a rational
Initially
ownership
we note that
trier of
all
the
fact could have found
of
not trespass.
element of criminal
beyond
essential elements of the offense
requires
30.05
only that
the actor
re
§
Virginia,
v.
Jackson
reasonable
doubt.
property
mained on
another after
re
of
307,
2781,
443 U.S.
99 S.Ct.
CLINTON, Judge, concurring.
“real
another,”
being
“of”
“owning”
in the
such
used
sense
real
here,
pertinent
As
to the facts
Y.T.C.A.
Code,
30.05(a)(2)
Penal
penal
makes it a
There is no evidence that
§
state, i.e.,
legislature
operative
opted
every culpable
chose "another" as the
“in
mental
word,
"owner,”
burglary
recklessly.”
tentionally, knowingly,
Day
not
is used in
as
or
v.
State,
(Tex.Cr.
and theft statutes. Tex.Penal Code Ann. sec.
n.
532 S.W.2d
306 and
107(4),
30.-02-.05;
(24);
submission).
secs.
and sec. 31.03
App.1975) (opinion
original
on
(Vernon 1974).
by
pattern
That became the
to be used
this
Palmer,
Court,
cated at the time “property of Karen Jones,” in the “belonging senses of to”
“possessed by” her.
Indeed, overwhelming weight of the shows that the real another,” “property of other than Karen Jones. The court of characterized as “a easement
maintained city between the clinics’ adjacent and an Lang street.” ston, supra, clearly at 407. Thus it is the
property of another other than Karen
Jones and the clinic.3
Accordingly, join I judgment Court.
Judy LINDLEY, Appellant, Texas, Appellee. The STATE of No. 12-88-00063-CR. Court of
Tyler. Aug. 1990. Rehearing Denied Oct.
Discretionary Review Granted
Jan. (2d Ed.1944) 1689[17]; easement, Langston, see also supra, Websters New at (1979) Collegiate Dictionary In the lat- "property 789[6]. will not serve in law to convert "owning:" possess; ter sense it connotes "to "property of another" to of Karen Jones” or appurtenance; have or hold as "property of the clinic." to, rightful natural, legal have title whether my opinion phrase "property While in house, prerogative,” as to own a a title or Web- may implicate statutory another" defini- International, (em- supra, ster’s New at 1795[2] "owner,” tion of even so neither Karen Jones phasis original); property: "to have or hold as nor the clinic had title to the real possess," Collegiate, supra, Websters New possession greater of the real nor a 813[1], possession to it than personnel they appellant 3. That from fact of the matter is the West Abortion had gratuitously statutory requisites Clinic for which she was director none of the “owner,” attributed to an "occasionally grass, "right” any mowed the cut weeds and and thus no nature in or area,” cleared trash out of the ditch in this to the real