*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 405 U.S. at 92 S.Ct. conduct, potential illegality appellant of his appellant Both the and the court of proceeded promotions with the and raises appeals present hypothetical several situa spite consequences. When one of persuade tions to us of the unconstitution objected resigned, his subordinates ap ality point of the statute. Each to situa pellant promoted carry someone who would offspring tions employ where are in the of promotions out the appellant’s of children. officeholder, a sole and both then rhetori clearly These actions are violative of the cally ask whether the refusal to act with Nothing statute. in the Court regard compensation, promotion, reas opinion, or appellant’s otherwise indicates signment may or even dismissal be consid fact, prohibited. conduct is not In ered ap criminal conduct. The court of analysis appeals entire the court opin peals held that because the statute is potentially troubling ion is based on other vague as to whether a sole officeholder is aspects of the statute. prevented taking any from action re with Accordingly, Nepotism hold we the state gard relative, employment to the statute, 5996a, 1(c),supra, article section legislature must not have intended re applied unconstitutional when to so- However, sult. legislature did not ex called “sole officeholders.” As there are empt these individuals from such conduct. points no other of error for the court of 1(a) 1(c) Rather sections of article address, appeals the court of 5996a, supra, specifically which refers to reversed, judgment and the of the trial “officer,” command different result. The court is affirmed. import clear legislative action is to prohibit nepotism by acts of all elected

officials Texas. Boykin See (Tex.Crim.App.1992). 818 S.W.2d 782 potential problems Whatever be, may with the statute questions these helpful analysis. are not to our When de termining whether a state statute is consti vagueness grounds, tutional on where no Maynard Susanne LANGSTON constitutionally protected right is con Sjodin, and Sheerie Renee cerned, reviewing court “need Appellants, scrutinize the statute to determine whether impermissibly vague applied it is Texas, Appellee. STATE challenging party’s specific conduct.” By num v. 885-91, Nos. 886-91. Crim.App.1989); Briggs v. of Criminal Court (Tex.Crim.App.1987); Vil En Banc. Estates, lage supra; United of Hoffman Powell, States v. U.S. S.Ct. June (1975). 46 L.Ed.2d 228 may The fact it be applied unconstitutional as in other circum

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.

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. 61 L.Ed.2d 560 ceiving depart. However, notice to the State, (1979); Butler v. 769 S.W.2d State, having pled the property was owned case, (Tex.Cr.App.1989). In the instant Jones, by Karen assumed the burden of the Court of was asked to deter State, v. proving allegation. the Chavez In any juror mine whether rational could have 843 S.W.2d 586 (Tex.Cr.App.1992), we held: found Karen Jones: ... law is well settled that unnec [O]ur property, possession ... title to the ha[d] essarily specific allegations of this kind property greater right of the ... or a merely surplusage, are not but must be possession [appel- than proven to sustain conviction. Whetstone .... lant] State, v. (Tex.Crim. 1.07(a)(24).7 Tex.Penal Ann. Code § App.1990); McWilliams v. 873-874 (Tex.Crim.App. When viewed in the most fa 1990), verdict, and cases cited Certainly therein. vorable to the we hold that no provides part: 6. § 30.05 a conviction under here.” [information] (a) Langston person that A 812 S.W.2d at 408. For commits an offense if he enters building proposition, or remains on or in a the Court of relied another without effective consent and he: (2) depart received notice to but failed to court Dist.] The Palmer [1st do so. stated: finding “greater right posses- disagree ... A of a Appeals' 7. We with the Court of hold- ing ‘greater right support posses- sion” is not a conviction "[a] sufficient statute, support sion’ in Karen Jones is not sufficient to under the criminal find, juror rational beyond could a reason- offense if a “remains on doubt, that Karen Jones owned able consent,” another without ... effective There was no to: evidence as “receiving depart;” after notice to accord- who property; was the title holder of the id., (b)(2)(A), ing to means oral or “notice easement; who holds the the boundaries of owner written communication easement; and, type of easement what apparent authority someone with to act for exists, assuming does lie with- the owner [.]”1 in an easement.8 The evidence estab- adjacent lishes that lies to the my judgment, given evidentiary In patients clinic and that the clinic’s cross the opinion facts recited in the of the court of parking to enter and exit the clinic case, in this the area where facts, lot. On these we conclude evi- “to peace lants were when told officers dence does not show that Jones had “a pas- impeding leave or face arrest greater proper- sageway,” Langston supra, ty appellants. than Because the State as- is, “on the side of the street unnecessary proving sumed the burden of line,” yellow majority opinion, at n. ownership the State must another;” certainly “property how- penalty prove. bear for its failure to so *5 ever, prove beyond the State did not a Accordingly, judgments of the Court reasonable doubt that it was then and there are affirmed. “property of [Karen Jones].” McCORMICK, P.J., and WHITE and In the context of the kind of criminal MALONEY, JJ., concur in the result. appellants the State claims com- MEYERS, J., participating. not here, phrase mitted statutory embraces

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, 764 S.W.2d at 334. e.g., Westv. S.W.2d at 516 above, alleged appellants As noted the State denouncing (Tex.Cr.App.1978) the extent of —to remained on There- Jones. a as error” omit “fundamental prov- fore the State has assumed the burden of "intentionally knowingly," Holloway ted State, ing ownership. Accordingly, the definition of (Tex.Cr.App.1979) —and 1.07(24) applicable. "owner” under was § later, course, in, appeals e.g., courts of Johnson v. S.W.2d at 556 "gov- 8. Therefore we do not decide whether a 1984); App. [1st] - Houston by private property ernment easement utilized (Tex.App. at 335 [1st] - Houston (State’s public property.” ground is owner PDR; cause, 1988), Lang and in the instant See, 1, supra.) error two. fn. at 408 ston Houston [1st] notes, Commentary 1. As the Practice when the such "circum- Since one cannot "intend" prohibiting trespass, former statute criminal ar- surrounding stances conduct” as "knowl- his . 1377(c), C.C.P.1925, ticle as amended in edge,” always require to find "inten- incorporated was into “new” Penal Code in tionally" trespass may as an element 1973, legislators neglected prescribe culpa- place impossible prosecution. burden on the state; 6.02(b) observing ble mental while emphasis throughout opin- All here and (c) "impart requirement that at least reck- indicated. ion is mine unless otherwise proven,” given lessness be for reasons the com- suggest knowing mentators instead “at least a word,” usage In common “of’ is "function culpable required mental state should be before connotations; general many and in a sense has already the criminal law intrudes into an area having possessive particular in one sense it indicates "a remedy.” a civil relationship;” "belonging pertaining to Court, ...;” apparently particularly recep- posses- connected with as "the being precise analysis. Dictionary tive to all that in its sor." Webster’s New International real appellants on which were lo-

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