Michael Miller THOMPSON, Appellant, v. The STATE of Texas, Appellee.
No. 09-98-343 CR.
Court of Appeals of Texas, Beaumont.
March 22, 2000.
915 S.W.2d 915
The State‘s motion to dismiss for want of jurisdiction is granted. The appeal is dismissed.
Tom Maness, Crim. Dist. Atty., John B. Ross, Asst. Crim. Dist. Atty., Beaumont, for State.
OPINION
WALKER, Chief Justice.
Michael Miller Thompson, pastor of the Spindletop Unitarian Church, was charged by information with the misdemeanor of- fense of Criminal Trespass by “intention- ally and knowingly remain[ing] on the property of another, namely, DENNIS ROZELL, without the effective consent of DENNIS ROZELL, and the said defen- dant had received notice to depart but failed to do so[.]” A jury found Thompson guilty of said offense and punishment was assessed by the trial court at ninety (90) days in the Jefferson County Jail and a fine of $200. The trial court suspended imposition of both incarceration and fine and placed Thompson on community su- pervision for a period of six months. Thompson brings forward seven appellate issues for our consideration.
We begin with issues three and seven as they complain of the lack of legal- ly sufficient evidence to support the con- viction. The evidence before us includes the transcription of verbal testimony con- tained in the reporter‘s record as well as two video tapes depicting the events lead- ing up to the arrest of Thompson. The video tapes depict the events in question from two separate and distinct perspec- tives. Specifically, issue three contends:
The court erred in denying appellant‘s motion for instructed verdict for insuffi- cient evidence: The evidence was insuf- ficient that Rev. Thompson remained on property of Dennis Rozell without effec- tive consent and received notice to de- part but failed to do so.
The trial court‘s written instructions to the jury contained several definitions of key terms. We reproduce the ones set out under paragraph 2 as follows:
By the term “notice,” as used herein, is meant oral or written communication by the owner or someone with apparent authority to act for the owner.
By the term “enter” or “entry,” is meant intrusion of the entire body.
By the term “effective consent,” is meant assent in fact, whether express or apparent, and includes consent by a per- son legally authorized to act for the owner.
The term “owner” means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the defendant.
By the term “possession” is meant actual care, custody, control, or manage- ment of the property.
Mr. Thompson contends that he did not
receive sufficient notice to depart. Testi-
mony of Detective W.C. Tatum of the
Beaumont Police Department indicated
that he was in attendance at the church
where the seminar was taking place mere-
ly as a spectator. Tatum testified that he
first noticed Thompson when Thompson
began to disrupt the meeting. This was
apparently during certain remarks being
made by the speaker at the podium, Den-
nis Rozell, the pastor of Highland Avenue
Baptist Church. Thompson, who was sit-
ting very close to the podium, began to
make loud comments apparently in re-
sponse to statements being made by Ro-
zell. At a certain point after Thompson
had again made an audible remark, Rozell
informed him that if he interrupted again
he would be removed from the church.
Thompson immediately replied with, “I‘d
like to see you try.” Rozell then turned to
security personnel and stated, “I would
like for him to be removed.” At that
point, Detective Tatum, being in plain
The video tape depictions of the events indicate that Detective Tatum approached Thompson from behind, leaned over Thompson‘s shoulder, began speaking to Thompson with Thompson responding ver- bally. Thompson then appears to gather up various papers and a tape recorder and place these items into a briefcase. Thomp- son, in a seated position, begins to bend at the waist in order to stand up. He hesi- tates momentarily, straightens back up in a seated position, crosses his legs and then looks up at Tatum who is standing in front of him. Tatum leans forward and reaches out and touches Thompson on his elbow as if to assist him in standing up. Thompson appears to make no attempt to stand up under his own power. Thompson is then physically pulled off of the bench into a kneeling position by Tatum and other uni- formed security personnel. Thompson ap- pears to make no attempt to stand. Secu- rity personnel then grasp Thompson‘s arms and legs and carry him, face down, up the aisle of the church. It is at this point that both tapes end.
In addition to the visual depiction of the events, Detective Tatum‘s testimony de- scribed the events in the following manner:
Q.[State‘s Attorney] Okay. And were you the first individual to approach Re- verend Thompson?
A. Yes, sir.
Q. Okay. What—describe that contact at that time.
A. Well, I explained to him that he‘d been asked to leave; and he was going to have to leave. He refused to leave.
Q. What did he say—what was the first thing he said back to you, if you can recall?
A. That he didn‘t have to leave. It was a public—public place and he had a right to be there and he wasn‘t going to leave.
Q. Okay. Was he correct about that?
A. No, sir.
Q. What did you tell him?
A. I explained to him that if the preacher asked him to leave that he didn‘t have a choice, that he had to leave or he was trespassing, one or the other.
Q. Do you recall what he said at that point, or what he did at that point?
A. Said he wasn‘t going to leave. I told him he was under arrest for tres- passing.
Q. And what happened next?
A. He started gathering up his brief- case and tape recorder and some other things, got them ready but then when he got—got them all ready, sat back down and said he wasn‘t going to leave.
Q. Okay. Did he start to get up?
A. Started to, yes, sir.
Q. And then what did he do?
A. Sat back down.
Q. What happened next?
A. I got him by the arm, and he was going to have to leave.
Q. And after that what happened? How did it—did he say anything—
A. Well, he dropped down to his knees and I was going to have to carry him out but some other officers were right be- hind me and they helped me carry him out.
A challenge to the trial court‘s
ruling on a motion for instructed or direct-
ed verdict is treated as a challenge to the
legal sufficiency of the evidence. See Cook
v. State, 858 S.W.2d 467, 470 (Tex.Crim.
App.1993) (citing Madden v. State, 799
S.W.2d 683 (Tex.Crim.App.1990)). In re-
viewing the legal sufficiency of the evi-
dence to support a conviction, our task is
to consider all of the record evidence and
reasonable inferences therefrom in the
light most favorable to the jury‘s finding
and to determine whether, based on that
Based upon the record evidence before
us, especially the testimony of Detective
Tatum, we find that Thompson was pro-
vided with sufficient notice to depart, pro-
vided an opportunity to depart, and inten-
tionally refused to depart. The evidence
indicates that Detective Tatum was “some-
one with apparent authority to act for the
owner” as provided for in the definition of
“notice.” See
Issue seven mistakenly argues
that the information alleged Rozell as the
“owner” of the property in question and
that there is no evidence to support owner-
ship in Rozell. As set out above, the infor-
mation alleged that Thompson remained
“on the property of another, namely Den-
nis Rozell, ...” (emphasis added).
Appellate issue one complains of
a number of instances of allegedly improp-
er jury arguments on the part of the State.
To be proper, jury argument must encom-
pass summation of evidence presented at
trial, reasonable deductions drawn from
said evidence, answers to opposing coun-
sel‘s argument, or plea for law enforce-
ment. Lagrone v. State, 942 S.W.2d 602,
619 (Tex.Crim.App.1997). However, be-
fore a defendant will be permitted to com-
plain on appeal about an erroneous jury
argument, he will have to show he objected
and pursued his objection to an adverse
ruling. McFarland v. State, 989 S.W.2d
749, 751 (Tex.Crim.App.1999). In Arriola
v. State, 969 S.W.2d 42, 44 (Tex.App.—
Beaumont 1998, pet. ref‘d), we observed
that the Court of Criminal Appeals warned
of the dangers of slavish adherence to the
order in which a defendant presents his
objection, request for instruction to disre-
gard, and motion for mistrial. See Fuller
v. State, 827 S.W.2d 919, 926 (Tex.Crim.
App.1992). However, we can find no case
in which either the motion to disregard or
the motion for mistrial was not raised by
trial counsel and the reviewing court found
no procedural default. Put another way,
while a sustained objection may be implied
if the trial court instructs the jury to disre-
gard a remark by the State during argu-
ment, the defendant must still request a
motion for mistrial and have that denied to
preserve the issue for appellate review.
Likewise, a defendant must give the trial
The instant record indicates each of the allegedly improper remarks by the State, if erroneous, would have been curable by a timely and specific instruction to the jury to disregard. Of the various remarks com- plained of at trial and set out in Thomp- son‘s brief, all objections save one were sustained by the trial court. Thereafter, in only two instances did trial counsel fol- low up with a request to have the jury disregard the remark. In these two in- stances, Thompson received all of the re- lief he requested from the trial court. No error is apparent. In the remaining in- stances, trial counsel either went no fur- ther following the trial court‘s sustaining of the objection, or immediately moved for a mistrial following the sustaining of the objection. Because the error, if any, was curable, failure to request an instruction to disregard waived examination of the issue for appellate purposes. McGinn, 961 S.W.2d at 165. The one overruled objec- tion, that the prosecutor referred to evi- dence not in the record, was properly over- ruled in the trial court because Thompson did admit evidence that Rozell inaccurately quoted Thompson‘s sermon. As Thomp- son either received all relief that was re- quested and that he was entitled to, or waived review of any alleged error, we overrule issue one.
Issue two‘s complaint, that the tri- al court‘s written instructions to the jury contained an additional element not con- tained in the information charging Thomp-son with criminal trespass, is entirely with- out merit. The record before us reflects that in the written instructions to the jury, paragraph 1, the abstract definition of the offense in question, does indicate that a person commits criminal trespass if he “enters or remains” on property of anoth- er. The information uses only the word “remain” in alleging how Thompson com- mitted the trespass. However, the written instructions to the jury also include the application paragraph, paragraph 4, which clearly restricts Thompson‘s criminal cul- pability to “intentionally or knowingly re- main” on the property. The word “enters” is completely absent from the application paragraph.
In Ramirez v. State, 967 S.W.2d 919, 922 (Tex.App.—Beaumont 1998, no pet.), we reiterated the law on this issue as follows:
It is the application paragraph of a jury charge which authorizes conviction, and an abstract charge on a theory of law which is not applied to the facts is insufficient to bring that theory before the jury. McFarland v. State, 928 S.W.2d 482, 515 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). An ab- stract statement of the law that goes beyond the allegations in the indictment ordinarily will not present reversible er- ror because ordinarily such expansions on the indictment‘s allegations are effec- tively restricted by the charge‘s applica- tion of the law to the facts, which limits the jury‘s deliberations to the allegations in the indictment supported by evidence.
In the instant case, the application para- graph clearly limits the jury‘s consider- ation to the theory of trespassing (remain- ing) alleged in the information, and not to the more expansive theory (entering) of which Thompson complains. Issue two is overruled.
Issue four attacks the constitu- tionality of the offense of criminal trespass as applied to Thompson because of the alleged restraint on his freedom of speech and expression. At the outset, we must dispel the impression of Thompson that the premises involved was a “public place.” Highland Avenue Baptist Church is clearly private property and therefore considered a “nonpublic forum,” regardless of the de- scription of the event in question. A “non- public forum” is one which neither by tra- dition nor government action has become a forum for public communication. Reed v. State, 762 S.W.2d 640, 643 (Tex.App.— Texarkana 1988, pet. ref‘d) (citing Corneli- us v. NAACP Legal Defense & Education- al Fund, 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)). In other words, Highland Avenue Baptist Church is not “an area which by tradition has been de- voted to public assembly or debate by the general public.” Reed, 762 S.W.2d at 644.
Speech, in a nonpublic forum,
may be restricted so long as the regula-
tions are reasonable and do not attempt to
suppress expression because of public offi-
cials’ opposition to the speaker‘s views.
Gollinger v. State, 834 S.W.2d 553, 556
(Tex.App.—Houston [14th Dist.] 1992, no
pet.). Based upon the evidence contained
in the record before us, the criminal tres-
pass law, as applied to Thompson, was not
used to regulate speech. There is simply
no evidence in the record before us that
Thompson was requested to leave the
premises because of the content of any
message he was there to express. The
purpose of the criminal trespass statute is
to regulate conduct, not speech. Otwell v.
State, 850 S.W.2d 815, 818 (Tex.App.—Fort Worth 1993, pet. ref‘d). Although it
has been recognized that First Amend-
ment protection goes beyond the spoken or
written word, see Texas v. Johnson, 491
U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d
342, 353 (1989), “[t]he Constitution does
not guarantee that those who want to pro-
pagandize their views may do so wherever
and however they please.” Reed, 762
S.W.2d at 643.
In the instant case, the evidence indi-
cates that Thompson was asked to leave
because he continued to interrupt Rozell‘s
presentation. There is no evidence in the
record before us that indicates that
Thompson was asked to leave because of
the content of any “speech” that he would
have presented in some fashion had he
been permitted to remain on the premises.
He was asked to leave because of his
conduct in continuing to interrupt Rozell.
Because of this,
Issue five complains of various
“improper remarks” on the part of the
State during both direct and cross-exami-
nation of Thompson. Contrary to the as-
sertion in his brief, Thompson failed to
properly preserve several of the “improper
remarks” for appellate review. The first
remark called to our attention (“playing
games“) was not even objected to by trial
counsel. Appellate review is therefore
waived.
The next portion of the record we
are directed to was the beginning of the
State‘s cross-examination of Thompson.
The State‘s initial question was objected to
by trial counsel. The objection was sus-
tained and trial counsel requested an in-
struction to disregard. The trial court
complied with this request. Trial counsel
did not move for a mistrial at this point.
As was fully discussed in our analysis of
issue one above, because trial counsel
failed to pursue his objection to an adverse
ruling error is not preserved.
Q. Isn‘t it true—isn‘t it true that some of the members of your own congrega- tion aren‘t real happy with the practices of some of these individuals?
....
Q. The individuals that these concerns were addressed at made up a very, very small minority that didn‘t practice their beliefs with the rest of your congrega- tion?
....
Q. Reverend Thompson, are you with these individuals when they practice— when they practice?
Defense counsel did not state a basis for the objection to the first question he ob- jected to the other two questions based on relevance and relative prejudice. In none of the above instances did Thompson re- spond before trial counsel interjected his objection. In each instance the jury was instructed to disregard the question. The reporter‘s record indicates that before the State‘s first witness was called to testify, the trial court gave the following admon- ishment to the jury:
Members of the jury, I‘ve already stated to you when you were sitting— seated out in the area as part of the larger panel, the citizen defendant, Re- verend Thompson, is charged with the offense of trespassing. It will be your responsibility ultimately to decide whether or not Mr. Thompson is found guilty or not guilty of this offense. But that is the offense, and you have been summoned to pass upon that question.
The morale [sic] and ethical and reli- gious questions that might be enter- tained into the offense are not a matter that you‘re supposed to base any deci- sion on. This is not the place where we settle those issues if, indeed, there is a place that it can be settled other than in the hearts of these men and women.
So, I‘m telling you and I‘m directing you, you are not to take into consider- ation these extraneous matters. Your responsibility is to pass upon the inno- cence or guilt of the defendant as it relates to the charge that has been filed against him.
Now, I will grant both the State and the defense some latitude that might touch upon these areas. I do that be- cause every citizen is entitled to his day in court. The State is entitled to its day, and the citizen defendant is entitled to his. But that is the only reason I will let these extraneous matters approach your ears. I‘m directing you to base your judgment upon the evidence that has come from this stand as it relates to the question of the innocence or guilt of the defendant.
Based upon the very explicit admonish- ment set out above and the immediate instruction to disregard the State‘s ques- tions because of their obvious reference to possible religious practices of Thompson or of people with whom he was acquainted, any error attached to said questions was cured. Issue five is overruled.
Thompson‘s final issue, issue
six, contends that the trial court erred in
denying a motion to quash the information
As for the need to detail in the
information the type of notice to depart
given to Thompson, he has provided us
with no authority, and we have found none,
categorically requiring the State to allege
which of the enumerated methods of “no-
tice” set out in
AFFIRMED.
EARL B. STOVER, Justice, concurring.
Without question, this is a problematic case. On the one hand, the Rev. Thomp- son contends that he was set-up. On the other hand, the State contends appellant, in effect, was seeking to make some sort of “statement” through his actions that night. Regrettably, there appears to be some truth to both contentions. Not wanting to be diverted along either of those paths, the sage trial judge admonished the jury to stay focused on the issue at hand—namely whether the State proved appellant com- mitted the offense of trespass. We are not, as the jury was not, called upon to decide the merits of conflicting or compet- ing religious points of view.
We review the legal sufficiency point of
error herein under a well-established stan-
dard of appellate review, which has been
ably set forth in the majority opinion. For
the purpose of my analysis, I emphasize
certain aspects of that standard. As noted
in the majority opinion, all of the evidence
must be examined in the light most favor-
able to the jury‘s verdict. See Jackson v.
Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). As the trier of fact,
the jury is the ultimate authority on the
credibility of witnesses and the weight to
be given to their testimony. See
The record in this case includes not only the witnesses’ testimony at trial, but also two video tapes admitted into evidence and viewed by the jury. The video tapes were made of the meeting that night by two different cameras from different angles. In addition to the audio portion of the meeting, the videos also contain, as de- scribed in the majority opinion, views of the inaudible exchange between Rev. Thompson and Officer Tatum. Thus, the jury had before it the trial testimony of Thompson and Tatum regarding what was said and done during that interchange, as well as the video tape on which the audio portion of their interchange is silent.
I am satisfied that body language, such as that contained in the video tape ex- change between Rev. Thompson and Ta- tum, is recognizable as a non-verbal means of communication and may be considered by the jury in an evaluation of the credibil- ity of witnesses. As Justice Bleil noted in his concurring opinion in Skidmore v. State, 838 S.W.2d 748, 757 (Tex. App.— Texarkana 1992, pet. ref‘d), “It has been posited that ten percent of spoken commu- nication is by the words we say, thirty percent by the sounds we make and sixty percent by body language, or nonverbal communication. See STEPHEN R. COVEY, THE SEVEN HABITS OF HIGHLY EFFECTIVE PEOPLE 241 (1989).”
By his presence that night, Rev. Thomp- son accepted the general invitation to at- tend the seminar. He indicated he had received a written hand-out of the eve- ning‘s program in which a question and answer session was listed as part of the meeting. Although he acknowledged re- ceipt of the written material, he took ex- ception to what he perceived to be Rev. Rozell‘s oral alteration of the rules to re- quire that the questions be in writing. Rozell testified that the meeting “was not a public debate“; however, written ques- tions were allowed, and pencils and paper were provided for that purpose. Pam Saur, one of appellant‘s church members, confirmed that Rev. Rozell explained the “ground rules” of the meeting. Notwith- standing the clarity of the instructions, Rev. Thompson interrupted the seminar when he took exception to the fact that Rev. Rozell referred to him as “Mr. Thompson” rather than “Reverend Thompson.” Shortly thereafter, Rev. Thompson again interrupted Rozell‘s re- marks by audibly challenging one of Ro- zell‘s statements.
Once Rozell asked that Thompson be removed from the meeting, Tatum moved from his position at the back of the room and up the aisle to where Thompson was seated. The jury viewed on video tape the inaudible interchange between Rev. Thompson and Tatum and, as we know from the guilty verdict, must have conclud- ed that Rev. Thompson was on notice to depart, but refused to do so. Such a con- clusion could have been based on Thomp- son‘s action, after Tatum spoke to him, in gathering up his belongings as if to leave, and then his action a moment later in making no attempt to stand when the offi- cer appeared to attempt to assist him in getting up. His conduct, as viewed on the video tape, supports the conclusion that he had been asked to leave, declined the op- portunity to do so, and instead chose to stand on principle.
To quote an old maxim, Rev. Thomp-
son‘s “actions speak louder than words.”
From Thompson‘s testimony and his ac-
tions, as recorded on video tape, the jury
could have concluded he knew he had been
As noted above, credibility of the wit- nesses is a matter for the fact finder, be it judge or jury. Similar to the use of video tapes in DWI arrests, probable cause stops, and shoplifting and robbery of- fenses, the video tapes in the instant case aided the jury in the determination of guilt or innocence. The video tapes clearly de- pict the demeanor and body language of Rev. Thompson during his attendance at the seminar. In addition to the video tapes, the members of the jury had before them the testimony of Thompson, Rozell, and Tatum. The jury was free to inter- pret the verbal, as well as non-verbal com- munication accordingly.
I believe Rev. Thompson was seeking to make a statement through his conduct; he paid a significant price for his “statement” by virtue of his having been arrested and convicted of a criminal offense. In my opinion, appellant has achieved exactly what he embarked upon when he attended the seminar. His demeanor, as recorded on video tape, along with the testimony of various witnesses at trial, reveals his in- tended course of conduct. Admittedly in this country, we need people who will stand up for a principle; however, in mak- ing such a stand, a person must be able to accept the consequences.1
Rev. Thompson was not denied admis- sion to the meeting, but, as a result of his actions therein, he was removed from the premises. In my view, a rational trier of fact could have found the essential ele-ments of the offense of trespass beyond a reasonable doubt. After considering the evidence—presented in both verbal and non-verbal form, the jury could have con- cluded that appellant had notice he had been asked to leave the premises, and he refused to do so. I am satisfied that the evidence was legally sufficient to support the conviction, and I concur in affirmance of the conviction.
DON BURGESS, Justice, dissenting.
I respectfully dissent. For our purposes and as set forth in the application para- graph of the jury charge, the elements of criminal trespass are:
- intentionally or knowingly remain on the property of another
- without the effective consent of that person
- after receiving notice to depart, and
- failing to depart.
The issue before this court is the suffi- ciency of the evidence on the notice to depart requirement. Often times, what appear to be complex cases, become quite simple ones when viewed in context. I begin my review with testimony from De- tective Tatum, describing a conversation with Reverend Rozell.
[PROSECUTOR]: Okay. Without tell- ing us exactly what was said, what was your understanding from talking to him as to what would be your law enforce- ment role while you were there?
[WITNESS]: Well I don‘t know if it were specifically intended for me but it was mentioned that he was afraid that there would be a disruption.
[PROSECUTOR]: Okay. Can you tell the Court anything more than that about—without—can you be more pre- cise?
[WITNESS]: Well, he stated that if there—if there was a disruption that he could not quell that he would ask the person to leave and if they would not leave, he would ask that they be re- moved.
Clearly Reverend Rozell had a correct understanding of what was required under the criminal trespass statute: the person would be asked to leave and if they did not, then they would be removed. So, what was the sequence of events? Again the testimony; first, Reverend Rozell, on direct examination:
[WITNESS]: I told him if he interrupts again he would be removed from the church.
[PROSECUTOR]: Okay. What hap- pened after that?
[WITNESS]: His response was “I‘d like to see you try.”
[PROSECUTOR]: And then what hap- pened?
[WITNESS]: I asked for the—well, I didn‘t really ask—I just said, “I would like for him to be removed.”
[PROSECUTOR]: Okay. And at that point did the law enforcement respond?
[WITNESS]: Yes.
Next, Reverend Rozell, on cross-examina- tion:
[DEFENSE COUNSEL]: And you nev- er used the words please leave or leave, did you?
[WITNESS]: No, I did not.
[DEFENSE COUNSEL]: You never told Reverend Thompson directly to de- part, did you?
[WITNESS]: No, sir, I did not.
Then, Detective Tatum‘s recollection of Reverend Rozell‘s remarks:
[PROSECUTOR]: Okay. And did Re- verend Rozell say anything at that point that you could hear?
[WITNESS]: Reverend Rozell asked him to leave.
[PROSECUTOR]: Okay. Do you re- member his words?
[WITNESS]: I think he asked that he be removed.
Finally, Reverend Thompson‘s account of Reverend Rozell‘s remarks:
[DEFENSE COUNSEL]: Now, what did Reverend Rozell say in response to that?
[WITNESS]: When I said, “I don‘t know where you got that, but you didn‘t get it from me.” He said, “Another interruption and you‘ll be removed.”
....
[DEFENSE COUNSEL]: What did you say in response?
[WITNESS]: I said, “I‘d like to see you try.”
....
[DEFENSE COUNSEL]: Now, did Re- verend Rozell ever ask you directly to leave?
[WITNESS]: I was not asked politely or in any other fashion to leave.
[DEFENSE COUNSEL]: You respect the church property?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: I mean, would you have left if it had been clear to you to leave?
[DEFENDANT]: If I had been asked in a polite manner, I probably would have left.
[DEFENSE COUNSEL]: Well, just asked—how about if you were just asked—whether it‘s polite or not, but asked in a clear and definite manner to leave?
[DEFENDANT]: Again, I probably would have left.
[DEFENSE COUNSEL]: Now, when he said, “I‘d like to see him removed,” what happened next?
[DEFENDANT]: He just gestured with his hand and said, “I‘d like to see him removed.” He did not ask me to leave, and so I‘m sitting there waiting to see what happens next. I—at that point I really did not know if he was serious.
....
[PROSECUTOR]: Reverend, I really skipped over the most important part of this trial. When Officer Tatum came up to you—when you first heard Reverend Rozell—
[DEFENSE COUNSEL]: Objection, beyond the scope of redirect, Your Hon- or.
THE COURT: Overruled.
[PROSECUTOR]: When you first heard Reverend Rozell say, “If you interrupt me again, you‘ll be removed,” or some- thing to that effect, did you hear him?
[DEFENDANT]: Yes, I heard him.
[PROSECUTOR]: Did you understand him?
[DEFENDANT]: I wasn‘t sure exactly what he meant.
[PROSECUTOR]: Pass the witness.
Again, simplicity at its finest. The pros- ecutor recognized “the most important part of this trial” had to do with Reverend Rozell‘s comments about removal. Clear- ly, Reverend Rozell never asked Reverend Thompson to leave nor gave Reverend Thompson any notice to depart. Upon the interruption by Reverend Thompson, Re- verend Rozell summarily ordered Rever- end Thompson removed. Therefore, the conviction cannot be upheld on any pur- ported notice to depart to Reverend Thompson by Reverend Rozell.
However, the statute does allow for the notice to depart to be given by someone with apparent authority to act for the own- er. The majority says Detective Tatum fulfills this requirement. Again, an exami- nation of the testimony. First, Detective Tatum, on direct examination:
[PROSECUTOR]: Did you—you said you heard the Reverend Rozell ask him to leave?
[WITNESS]: Yes, sir.
[PROSECUTOR]: In different words. Did you also ask him to leave?
[WITNESS]: Yes, sir.
[PROSECUTOR]: How did you say that?
[WITNESS]: Well, I—I did not ask him to leave. I explained to him that if—if the Reverend Rozell asked him to leave, that he had to leave, that he didn‘t have a choice, that he did not—
[PROSECUTOR]: So, you reiterated—
[WITNESS]: Yes, sir.
[PROSECUTOR]:—what Reverend Ro- zell had said.
Then, Reverend Thompson‘s account of the conversation with Detective Tatum:
[DEFENSE COUNSEL]: Now, are you able to testify what was said between that officer and you as he‘s leaning over your left shoulder?
[DEFENDANT]: Yes. He whispered to me and I whispered in response, but I can‘t testify to you precisely what was said.1
[DEFENSE COUNSEL]: And how can you do that?
[DEFENDANT]: I had my pocket tape recorder sitting on the pew by my side, and it picked it all up.
[DEFENSE COUNSEL]: And do you remember it, as well?
[DEFENDANT]: As well, yes.
[DEFENSE COUNSEL]: What did he say?
[DEFENDANT]: He leaned over and whispered in my ear, “Mr. Thompson, he wants you to leave.”
[DEFENSE COUNSEL]: What did you say in response?
[DEFENDANT]: I said, “This is a pub- lic meeting.”
....
[DEFENSE COUNSEL]: Now, at this point had—did Reverend Rozell say anything else asking you to leave?
[DEFENDANT]: No. He was too busy singing Victory in Jesus.
[DEFENSE COUNSEL]: Is the an- swer no to that?
[DEFENDANT]: The answer is no.
[DEFENSE COUNSEL]: After you said that you were a part of the public, what did the gentleman say after that?
[DEFENDANT]: He said, “He asked you to leave. The main reason is you‘re trespassing.”
[DEFENSE COUNSEL]: And then did he say anything about—
[DEFENDANT]: He said, “He asked you to leave. The main reason is you‘re trespassing, and that‘s not necessary.”
[DEFENSE COUNSEL]: Now, what did you understand when he said, “It‘s not necessary?”
[DEFENDANT]: Now necessary for me to remain in the seminar, to remain to see what would happen next in the seminar.
[DEFENSE COUNSEL]: Now, did you pack up your bags?
[DEFENDANT]: Well, he then said—
[DEFENSE COUNSEL]: Did you pack up your bags?
[DEFENDANT]: Yes, I did.
[DEFENSE COUNSEL]: And I think that was shown on the tape, as well?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: Did you have—what kind of a briefcase did you have?
[DEFENDANT]: A zippered attache’ case.
[DEFENSE COUNSEL]: Did you put your things in your attache’ case?
[DEFENDANT]: Yes, I did.
[DEFENSE COUNSEL]: And they what did you do?
[DEFENDANT]: I waited for further instructions.
[DEFENSE COUNSEL]: Do you re- member on the tape when you sat back down?
[DEFENDANT]: Well, I never stood up.
[DEFENSE COUNSEL]: That‘s—you know, I picked that up yesterday. Of course, you never stood up, did you?
[DEFENDANT]: No.
[DEFENSE COUNSEL]: So, you re- mained seated?
[DEFENDANT]: (Nodding).
[DEFENSE COUNSEL]: And waited for further instructions. Did you cross your legs?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: Why did you do that?
[DEFENDANT]: Reflex. That was a position I had been sitting in previously, and I simply returned to my previous body posture waiting to see what would happen next.
[DEFENSE COUNSEL]: If you had been told to exit this way or that way, would you have done it?
[DEFENDANT]: I think so.
Again, a simplistic analysis of the ex- change between Detective Tatum and Re- verend Thompson reveals that Detective Tatum was only reiterating what Reverend Rozell had said. Although Detective Ta- tum initially said he had also asked Rever- end Thompson to leave, Detective Tatum quickly corrected himself and noted that he did not ask Reverend Thompson to leave, but “explained to him that if—if the Reverend Rozell asked him to leave, that he had to leave, that he didn‘t have a choice.” Thus, the purported notice to depart by Detective Tatum was dependent upon notice to depart given by Reverend Rozell, not by any separate, independent notice by Detective Tatum.
Each of these published cases indicate a
clear request or notice to leave and, in
[H]e informed the leader of the group that the sidewalk was private property and asked them to leave. They refused and Elliott threatened to call the police. When they still refused, Elliott called the police. When the police arrived, they explained the law of criminal tres- pass to them and asked them to leave. When they again refused, they were ar- rested....
Gollinger v. State, 834 S.W.2d 553, 557 (Tex.App.—Houston [14th Dist.] 1992, no pet.), provides:
In this case, the appellant himself testi- fied that Franks asked him to leave and he refused. Franks testified that he asked appellant to leave at least three times before telling appellant he was going to call the police. Each time he was asked to leave, appellant responded that he had a right to be there and refused to leave the premises.
In Zarsky v. State, 827 S.W.2d 408, 414 (Tex.App.—Corpus Christi 1992, pet. ref‘d):
On the morning of appellant‘s arrest, Hopkins approached appellant, identi- fied himself and requested that appel- lant leave the property. Hopkins testi- fied that he had the authority to take care of the property; appellant, in his testimony, acknowledged that Hopkins had the authority to ask him to leave....
We find this evidence sufficient to sus- tain the conviction. Appellant was not prosecuted for entering the property. He was prosecuted for remaining on the property after being notified to leave.
In Olaniyi-Oke v. State, 827 S.W.2d 537 (Tex.App.—Houston [1st Dist.] 1992, pet. ref‘d):
[A]ppellant entered the first floor of the Harris County jail and approached the master control center, where Harris County Deputy Gary Davis was on duty.... Appellant handed Davis frag- ments of a Texas driver‘s license. Davis informed appellant that the identifica- tion was unacceptable, and denied appel- lant access to the upper portion of the jail.
Appellant became angry, and Davis asked him to leave the premises. Ap- pellant did not leave, and Davis arrested appellant for the offense of criminal trespass.
In Felker v. State, 819 S.W.2d 636, 637 (Tex.App.—Corpus Christi 1991, no pet.):
Ms. Van Holsbeck called Gene Lorenz, property manager of the International Plaza, the building which housed the office. He told them that Ms. Van Hols- beck had to close the office for lunch, and he asked them to leave and come back at 1:00. He gave them consent to stay in the building between 12:00 and 1:00, but he did not give them consent to stay in Congressman Ortiz’ office during that time period. They still refused to leave the office. A Brownsville police officer, Larry Ferrar, told them that Ms. Van Holsbeck wanted to go to lunch and asked them to leave. He told them that if they did not leave, they would be arrested. They refused to leave and were arrested.
In Moses v. State, 814 S.W.2d 437, 443 (Tex.App.—Austin 1991, pet. ref‘d, untime- ly filed):
LaFayette gave warnings at the front and back doors of the clinic. She asked the people to leave and advised them if they did not leave that they would be trespassing....
Austin Police Lieutenant Stewart tes- tified that appellant was in front of the crowd of persons that was blocking the
doorway. Stewart, at LaFayette‘s re- quest, advised the crowd that they had been warned to leave and not come back, that they were in violation of the criminal trespass statute, and, if they continued to remain on the premises, that they would be subject to arrest.
Incredibly, the concurrence states “the jury could have concluded he knew he had been asked to leave.” This is based upon Thompson‘s body language in the video tape. This conclusion, if made by the jury, is certainly not supported by the evidence. Detective Tatum unequivocally stated he did not ask Thompson to leave.
In summary, Reverend Rozell shortcut the legal requirements of the statute and had Reverend Thompson removed without giving Reverend Thompson notice to de- part. No doubt, some will scream “techni- cality,” but their complaint must be lodged with the legislature. The statute, in my view, does not criminalize mere presence or disruption, it only criminalizes remain- ing on the premises after receiving notice to depart and then failing to do so. Clear- ly, the legislature intended that a potential trespasser be given the opportunity to avoid criminal consequences, by placing the notice requirement in the statute. As outlined above, Reverend Thompson did not receive any notice that unless he de- parted he would be charged with a crimi- nal offense. The only notice he received was that if he interrupted again, he would be removed; this was not sufficient. Therefore, I would reverse the judgment and order an acquittal.