Case Information

*1 PD-0758-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/1/2015 11:57:53 AM Accepted 7/1/2015 3:49:55 PM IN THE COURT OF'CRIMINAL APPEALS OF TEXAS ABEL ACOSTA CLERK DEWAN MORGAN, $

APPELLEE $ $ No. PD-0758-15

V $ $

THE STATE OF TEXAS, $ APPELLANT $ STATE'S PETITION FOR DISCRETIONARY REVIE\il FROM TI{E SECOND DISTRICT OF TEXAS AT FORT WORTH IN CAUSE NUMBER 02.I4.00231-CR AND

FROM TI{E zITTHJUDICIAL DISTRICT COURT DENTON COI-INTY, TEXAS IN CAUSE NUMBER F-2013-I7O4.C PAUL JOHNSON Criminal District Attorney Denton County, Texas CATHERINE LUFT Assistant Criminal District Attomey Chief, Appellate Division YAEL ZBOLON Assistant Criminal District Attorney 1450 East McKinney, Suite 300 Denton, Texas 76209 State Bar No.

(e40) 34e-2600 FAX (e40) 34e-260r yael. zbolon@dentoncounty .com

IDENTITY OF PARTIES AND COUNSEL DE\ryAN MORGAN Appellee

STANLEY GOOD\ryIN 303 North Carroll Boulevard Suite 234

Denton, Texas 76201 APPELLATE COI.INSEL DEREK ADAME East McKinney Street Suite 102

Denton, Texas 76209 TRIAL COUNSEL THE STATE OF TEXAS Appellant

PAUL JOHNSON Criminal District Attorney CATHERINE LUFT Assistant Criminal District Attorney Chief, Appellate Division YAEL ZBOLON Assistant Criminal District Attorney State Bar No. 24077065 East McKinney Denton, Texas (940) 34e-2600 FAX (940) 34e-27sr yael. zbolon@dentoncounty. com APPELLATE COTINSEL MICHAEL GRAVES LINDSEY SHEGUIT Assistant Criminal District Attorneys TRIAL COUNSEL *3 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL I INDEX OF AUTHORITIES IV-V STATEMENT REGARDING ORAL ARGUMENT ^[1] STATEMENT OF TT{E CASE... 2 STATEMENT OF PROCEDURAL HISTORY 2 a J QUESTIONS PRESENTED FOR REVIEW l. In burglary of habitation cases, must trial and appellate courts utilize property law to determine who qualifies as "owner" habitation as defined by the Penal Code? J 2. To qualiff as "entry without effective consent owner" how much time must elapse after victim revokes consent for her live-in boyfriend to enter her home his forcible entry to be deemed burglary?.............. ...,......... 3 a J

ARGUMENT GROLIND ONE 5

In burglary habitation cases, must courts utilize

property law to determine who qualiltes as "owner" defined by the Penal Code?..... .......... 5 Trial appellate courts should not be required to reference property law to determine the meaning criminal statute. ....... 6 Furthermore, the Second Court Appeals applied property law principles improperly. .....,..... ....,............... By disregarding the Penal Code's definition, Second Court improperly broke away from precedent.............. ..................9 ll *4 The Second Court Appeals improperly applied sufficiency standard acting as thirteenth juror. ..... ^[1] I

GROUND TWO .. 13

To quali$r "entry without effective consent owner" how much time must elapse after victim revokes consent for her live-in boyfriend to enter her home his forcible entry to l3 be deemed burglary?.......... Revoking effective consent: how much time enough? 13 Dominguez misconstrued: what does it mean that

"possession must be determined immediately prior to not duríng break-in"? The Second Court of Appeals vs. The Fourth Court of Appeals: which standard applies determine who has possession?.....,.... l6 t7 Applied properly, Domínguez standard should govern. r8 PRAYER FOR RELIEF t9 CE,RTIFICATE OF COMPLIANCE t9 CERTIFICATE OF SERVICE APPENDICES: Judgment Conviction

B Morgan v. State, No. 02-14-00231-CR, 2015 Tex. LEXIS 541I (Tex.

App.-Fort Worth }i4ay 28,2015, pet. hled)

C 49 Tex. Jur. Landlord Tenant $ (2014) (Tenancy atwill)

D 49 Tex. Jur. Landlord Tenant $ (2014) (Tenancy at sufferance)

lll *5 INDEX OF AUTHORITIES Statutes, Codes, and Rules 5,7

Tex. Penal Code Ann. $ 1.07(a)(35X4) (West Supp.2014) 5,17 Tex. Penal Code Ann. $ 1.07(a)(39) (West Supp. 2014) Tex. Penal Code Ann. $ 30.02(a)(1) (West 201l) 5 Tex. Penal Code Ann. $ 30.02(a)(2) (West 2011) 5 Tex. Prop. Code Ann. $ 92.001 (West 2014) 7 Tex. Prop. Code Ann. $ 92.009 (West 2014) 8 t4 Tex. R. App. P. 41.3 Cases

Alexander v. State

753 S.W.zd390 (Tex. Crim. App. 1988) 5 Carrasco-Flores v. State

No.08-13-00231-CR,2015 Tex. App. LEXIS (Tex. App.-El Paso }l4lay 14,2015, no pet.) t0,13,14 Dewberry v. State t2

4 S.W.3d (Tex. Crim. App. 1999) Dominguez v. State

355 S.W.3d 918 (Tex. App.-Fort Worth 2011, pet. ref d).,....... 13,14,15, l6 Freemqn v. State S.W.2d597 (Tex. Crim. 1986) .........,....17

1V *6 Garza v. State 344 S.W.3d 409 (Tex. Crim. App. 20ll) ...............5 Gregg v. State

881 S.W.2d946 (Tex. App.-Corpus Christi, 1994, pet. refd)....................10, 13 Hooper v. State ll,l2 214 S.W.3d 9 (Tex. Crim. App. 2007) Hudson v. State

799 S.W.2d3l4 (Tex. App.-Houston [14th Dist.] t990, pet. ref d) 10, 13 Jackson v. Virgínia ll, 12 443 U.S. 307 , 99 S. Cr. 2781, 6r L. Ed. 2d 560 (1979) Laster v. State 275 S.W.3Í5I2 (Tex. Crim.4pp.2009) .............12 Mack v. State

928 S.W.zd219 (Tex. App.-Austin 1996, pet. refld)..........;... 7,10,13,17 Morgan v. State

No.02-14-00231-CR,2015 Tex. App. LEXIS 54ll

(Tex. App.-Fort Worth'l|l.Iay 28,2015, pet. filed) passim Ramirez v. State

429 S.W.3d 686 (Tex. App.-San Antonio 2014, pet ref d) 17 Stanley v. State

631 S.W.2d751 (Tex. Crim. 1982) 9 Other Authorities

49 Tex. Jur. Landlord Tenant $ 13 (2014), 8 8,9 Tex. Jur. Landlord Tenant $ 14 (2014) Herbert Hovenkamp & Sheldon F. Kurtz, 8,9

Principles Property Law Thompson'West,6th ed. v *7 IN THE COURT OF CRIMINAL APPEALS OF TEXAS DE\ryAN MORGAN, $

APPELLEE $ $ No. PD-0758-15

V $ $

THE STATE OF TEXAS, $

APPELLANT $

STATE'S PETITION FOR DISCRETIONARY REVIEW TO TI{E HONORABLE COURT OF CRIMINAL APPEALS:

Comes now the State, by through its Assistant District Attorney, and respectfully urges this Court grant discretionary review above named cause.

STATEMENT REGARDING ORAL ARGUMENT Because issues presented this case-(l) whether courts should utilize property law determining whether a person "owner" habitation as defined Penal Code; (2) how much time must elapse after consent to enter habitation is revoked subsequent entry qualiff burglary-have not been addressed by this Court, State believes oral argument would be helpful to courts State Texas and parties. The State therefore requests oral argument.

I *8 STATEMENT OF THE CASE As their relationship progressed, Regina Raglin invited her boyfriend, Appellee, to live with her at her apartment. V/hile she gave him key, she never added him her lease, and she alone paid the rent (3 R.R. at 29-30; State's Exhibits 20-21). Appellee only contributed financially paying some groceries, cleaning supplies, and the electric bill (3 R.R. at 29-30).

The morning offense couple argued (3 R.R. at 4l). Fearing Appellee, who had assaulted her before, Regina invited male friend to come over evening after work (3 R.R. at 40-43). V/hen Appellee came home, he saw Regina's friend parking lot and two exchanged words (3 R.R. at 43-44) Regina quickly locked deadbolt that could only be unlocked from within (3 R.R.

at 43-45,63). Realizing his key useless; Appellee pounded on the door, rang doorbell, yelled, shattered kitchen window, ultimately kicked down door, with deadbolt still in place (3 R.R. at.46-47; State's Exhibits 7-8, l8).

Regina was on the phone with 9-1-1, but quickly retreated her bedroom (3 R.R.

at 50). Appellee grabbed, punched, scratched, bit, choked Regina until police arrived (3 R.R. at 48;4 R.R. at 46,51,63,67-68; State's Exhibits 12-17, 19)

STATEMENT OF HISTORY A j.tty found Appellee guilty of burglary habitation sentenced him years jail (6 R.R. af 5; C.R. 25). See Appendix [Judgment of *9 Conviction]. Appellee appealed Second Court of Appeals at Fort Worth claiming evidence insufficient to support his conviction. On May 2015, in a published decision, Second Court of Appeals reversed the burglary of habitation conviction, affirmed lesser included assault conviition, Appendix B lMorgan v remanded for new punishment proceedings. ^See State, No. 02-14-00231-CR, 2015 Tex. LEXIS 54ll (Tex. App.-Fort Worth lr4ay 28,2015, pet. filed)1. The State did not file motion for rehearing.

OUESTIONS PRESE NTED FOR REVIEW 1. In burglary habitation cases, must trial appellate courts utilize property law determine who qualifies as "owner" of a habitation as defined by the Penal Code?

2. To qualifo "entry without the effective consent the owner" how much time must elapse after victim revokes consent for her live-in boyfriend enter her home for his forcible entry be deemed burglary?

ARGUMENT Texas trial appellate courts need guidance on two issues not yet addressed by this Court. Such guidance would have broad implications on all burglary of habitation cases in Texas

First, the Second Court Appeals has disregarded precedent establishing three-pronged definition an "owner" Penal Code authoritative guide determining ownership property burglary cases Instead relying on the Penal Code, Second Court turned common law

a J *10 landlord tenant rules for guidance. In so doing, the Second Court established a new precedent trial appellate courts should confer with property law in criminal cases when the Penal Code already aptly defines "owner." Left undisturbed this precedent would cause needless confusion criminal cases. Furthermore, Second Court Appeals misapplied property principles it utilized reaching its opinion and improperly acted thirteenth juror when applying sufficiency standard.

Second, Second Court Appeals Fourth Court of Appeals apply two different standards determine 'who has "possession" habitation in burglary cases, This Court should clari$r which standard should be applied state-wide. Additionally, in cases dealing with live-in boyfriends or girlfriends this Court has yet address how much time must elapse between revocation of consent and entry for subsequent entry be deemed a burglary. Courts have held that when a boyfriend moves out weeks or months before breaking-in and assaulting his (former) girlfriend, enough time had elapsed for consent be effectively revoked. But no case has yet addressed whether consent is effectively revoked minutes before entry.

Furthermore, its holding, Second Court implies fhat victim can never revoke consent her live-in boyfriend enter her apartment when faced with an immediate threat. This an absurd result that warrants review.

GROUND ONE In burglary of habitation cases, must trial and appellate courts utilize property law to determine who qualifies as the "owner" of a habitation as defined by the Penal Code?

Argument person commits burglary a habitation if without the effective consent of the owner the person enters habitation (1) with intent to commit felony, theft, or an assault; (2) commits felony, theft, or assault; (2) or attempts commit a felony, theft, or assault. Tex. Penal Code Ann. $30.02(a)(l),(2) (West 201l). The Penal Code defines "owner" the property, capable giving or revoking consent enter, as one who (1) has title property; (2) has possession the property, whether lawful or not; or (3) has greater right possession the property than actor. Tex. Penal Code Ann. $1.07(a)(35X4) (West Supp. 2014). "Possession" is defined as actual care, custody, control or management. Tex Penal Code Ann. $ 1,07(a)(39) (West Supp. 2014). Thus, under Penal Code, any person who has a greater right actual cate) custody, control, or management property than defendant owner. See Alexander v. State, S.W.2d390,392 (Tex. Crim. App. 1988) In burglary of habitation cases, must courts utilize property law to determine who qualifies "owner" as defined by the Penal Code?

The Penal Code includes an expansive deflrnition of an owner Garza v. State,344 S.W.3d 409,413 (Tex. Crim. 20Il). In its analysis, *12 Second Court Appeals abandoned a straight forward application "owner" as defined by the Penal Code favor an analysis landlord tenant law under common law. The Second Court determined that because Appellee had originally moved into Regina's apartment with her consent, and because his belongings were the apartment, he qualified as a tenant and had equal possessory rights the apartment. Morgan v. State, No. 02-14-0023 l-CR, Tex. App LEXIS 54t1, *6 (Tex. App.-Fort Worth May 2015, pet. filed). Accordingly, court asserted Appellee was co-tenant, and either tenant at will or a tenant sufferance, with right occupy control apartment until his tenancy was termlnated. Id. This analysis begs the question: to determine whether someone an owner under Penal Code, should courts be required to cross-reference with Texas Property Code or common law property principles?

This question remains unanswered this Court.

Triat appellate courts should not be required to reference property law to determine the meaning criminal statute.

Not only will requiring trial courts confer with property law determine who qualifies an "owner" under Penal Code cause undue confusion, Penal Code's definition already provides courts with sufficient guidance to determine who an "owner." Because Penal Code includes among its definitions one who has "possession the property, whether lawful or not" and one who has "greater right possession," Penal Code's definition *13 encompasses cases like this one. Therefore, it would be unnecessary to look further for guidance under property law

Under straight-forward application the Penal Code's definition of owner, Regina had greater right to possession property as she alone paid rent and was recognized under lease as the rightful tenant. See Tex. Penal Code $ 1.07(a)(35X4). She also the owner because she had possession the property before the break-in. Id. Appellee having some possessory rights the property is not dispositive. "The touchstone our analysis is not whether defendant has any right possession property all, but whether the alleged owner's right possess property IS greater than defendant's." Mack v. State,928 S.W.2d 2t9, (Tex. App.-Austin pet. ref d). The Penal Code clearly indicates defendant who has some, but less, right to control building than alleged owner may be prosecuted burglary. Id.

Furthermore, the Second Court of Appeals applied property law principles improperly.

The Texas Property Code defines a tenant one who "is authorized a lease occupy a dwelling exclusion others and . . . who obligated under lease pay rent." Tex. Prop. Code Ann. $ 92.001 (West 2014) *14 Therefore, even under property law, Appellee would not have qualified as a tenant as he was not listed on lease nor did he pay rent.l

Furthermore, Second Court of Appeals incorrectly concluded that Appellee was either a tenant at will or a tenant at sufferance. Morgan,2015 Tex, LEXIS at *5. In its analysis, court cited a Texas treatise. See Appendices C [49 Tex. Jur. Landlord and Tenant $ 13 (2014) (defrning tenancy at will)l D [49 Tex. Jur. Landlord Tenant $ 14 (2014) (defìning tenancy at sufferance)]. But the court improperly applied the law as provided in the treatise. tenancy at will is at the will either tenant or landlord and can be

terminated either party without notice. Tex. Jur. Landlord and Tenant $ 13 (201Ð; Herbert Hovenkamp & Sheldon F. Kurtz, Principles of Property Law Thompson 'West, 6th ed. 2005. A tenant at will has no certain or sure estate. 49 Tex. Jur, Landlord Tenant $ 13. Thus, distinguishing characteristic a tenancy at will uncertainty as the duration tenant's holding the premises. Id. Moreover, contrast tenant at sufferance, a tenant will possesses property with owner's consent. Id. By this very t Alternatively, even if Appellee tenant, code does not authorize "self-help" remedies such kicking down door. Appellee's legal course action was seek writ re-entry . See Tex. Prop. Code Ann. $ 92.009 (West 2014). *15 definition, Appellee would only be permitted possession the premises by owner, Regina. As such, she is the rightful owner with greater possessory rights.

A tenant sufferance is "no tenancy at all but a mere naked possession of land without right." Herbert Hovenkamp & Sheldon F. Kurlz, Príncíples of 'West, 6th ed. 2005. tenant at sufferance does not Property Law 265 Thompson assert claim to superior title, is not in privity with the owner, possesses no interest capable assignment. Tex. Jur. Landlord and Tenant $ 14 (2014). Accordingly, even if Appellee qualified as a tenant at sufferance, Appellee had no possessory interest equal Regina's, Therefore, even under common law, Appellee would not have qualified as aî "owner" under Penal Code's definition.

By turning common law landlord tenant rules, Second Court disregarded expansive definition "owner" as defined Penal Code.

Since Penal Code's definition more precise relevant context a burglary habitation, there is no need require courts cross-reference with Texas Property Code or common law landlord tenant law discem who qualifies an "owner" under the Penal Code.

By disregarding Penal Code's definition, the Second Court improperly broke away from precedent.

Cases with similar facts have all utilized the Penal Code's definition of owner. See Stanley v. State, 631 S.\M.2d (Tex. Crim. 1982) (although *16 defendant was still married to victim, victim had moved out of their joint home and had greater right to possession her new apartment); Carrasco-Flores v. State, No. 08- 13-0023 1-CR, 2015 Tex. App. LEXIS (Tex. App.-El Paso li4ay 14,2015, no pet.) (not designated for publication) (as victim kicked defendant out in morning, changed the locks, removed defendant from lease, she was the owner because she had greater rights possession and had actual possession before the break in); Dominguez v. State,355 S.W.3d 918 (Tex. App.-Fort Worth 2011, pet. refld) (although defendant had made many mortgage payments, the victim had greater right possession as house was purchased by the victim's sister her benefit and victim had possession apartment the defendant's key did not work, victim would not open the door when defendant knocked); Mack v. State,928 S.W.2d 219 (Tex. App.-Austin 1996, pet, refd) (although defendant's name was on the lease, victim had greater rights property since defendant had moved out, stopped paying rent, agreed call before coming over); Gregg v. State,88l S.W.2d (Tex. App.-Corpus Christi, 1994, pet. refd) (although victim's home was her parent's name she had greater rights possession than defendant since defendant and victim had separated and defendant did not live with victim anymore); Hudson v. State,799 S.W.2d 314, 315 (Tex. App,-Houston [14th Dist.] pet. refd) (although defendant and *17 victim had lived together, she had greater rights the property since she kicked defendant out).

Courts have remained within the bounds of Penal Code without venturing into property law define "owner." Accordingly, by turning to property law instead of remaining within well-established framework, the Second Court of Appeals erred.

The Second Court Appeals improperly applied the sufficiency standard by acting as a thirteenth juror.

The jury this case not instructed about property law principles of tenants at will or at sufferance. In trial court's jury charge, the jurors were provided definition owner from the Penal Code (C.R. 16). Therefore, by contemplating law outside what the jury considered, Second Court of Appeals acted improperly placing itself thirteenth juror.

In assessing the legal sufficiency the evidence under Jaclçson v. Virgínia, reviewing court "consider[s] all of the evidence light most favorable to the verdict determinefs] whether, based on evidence and reasonable inferences therefrom, rational juror could have found the essential elements crime beyond reasonable doubt." Hooper v. State,214 S,W3d 13 (Tex. Crim. 2007) (citing Jackson v. Virgínia,443 U.S. 307,318-19, S. Ct.2781,

2788-89, 6l L. Ed. 2d (l 979). reviewing court's role is not become a thirteenth juror, it should not reevaluate the weight credibility

l1 *18 record evidence substitute its judgment for that fact-frnder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, a reviewing court defers to "the responsibility trier fact to fairly resolve conflicts testimony, weigh the evidence, and to draw reasonable inferences from basic facts ultimate facts." Hooper,214 S.W.3d at 13 (quotingJackson, U.S. at 318-19). This same standard applies equally circumstantial and direct evidence. Laster v. State,275 S.W.3d 517-18 (Tex. Crim. 2009). reviewing court's role on appeal "restricted guarding against rare occuffence when factfinder does not act rationally ." Id. at

By contemplating property law which not presented jury, and basing its decision on an erroneous application property law, the Second Court Appeals improperly substituted its judgment fact-finders. See Dewberry, S.W.3d 740. Accordingly, Second Court improperly applied the legal sufficiency standard, an enor that warrants review this Court.

t2 *19 GROUND TWO

To qualiS, "entry without the effective consent the owner" how much time must elapse after a victim revokes consent for her live-in boyfriend enter her home his forcible entry be deemed burglary?

Argument

Revoking effective consent: how much time is enough? person who had equal possessory rights a property runs afoul

burglary statute entering property after their entry rights are effectively revoked. Mack, 928 S.W.2d at 219. There is no clear precedent on how much time must elapse between termination possessory interest and revocation of consent enter before entry will be considered burglary.

Courts have asserted that when a live-in boyfriend or girlfriend either "kicked out" or voluntarily moves out weeks or months before committing burglary habitation, enough time had elapsed indicate that their rights were effectively revoked. Carrasco-Flores, 2015 Tex. LEXIS 4982 (victim kicked defendant out the morning he broke in and murdered her); Dominguez,355 S.W.3d at 918 (defendant moved out two weeks before breaking and murdering his girlfriend); Mack, 928 S.W.2d at 219 (defendant moved out three months before breaking murdering his girlfriend); Gregg, 881 S.W.2d at (defendant victim stopped living together seven months before defendant murdered victim during commission burglary habitation); Hudson, S.W.2d

l3 *20 (defendant was "kicked out" a month before breaking attempting to murder his girlfriend). However, no case has addressed whether entry rights may be effectively revoked minutes before entry still quali$'as burglary of a habitation.

In this case, moments before Appellee reached the door, Regina constructively revoked Appellee's consent enter her apartment by purposefully locking deadbolt she knew would render his key useless (3 R.R. at.45,63). She refused unlock the door even after he continually pounded on the door, screamed, threw something through the window, shattering it. (3 R.R.

at 46-47; State's Exhibits 7-8, l8).2 Fearing being assaulted by Appellee, Regina revoked his consent at time she needed most.

In its opinion, the Second Court implicitly held that enough time had not elapsed after Regina revoked consent for Appellee's forcible entry qualiff as burglary habitation. Morgan, Tex. App. LEXIS 5411, at. *6. As it stands, this case holds that victim may not revoke consent her live-in Th. State will note Regina's actions would have qualified effectively ' revoking consent. See Carrasco-Flores, 2015 Tex. LEXIS at *23. In Carrasco-Flores, the victim had possession the apartment when the defendant arrived, defendant's key did not work, victim did not respond when the defendant knocked on door. Id. Citing Dominguez,lhe court found that since the victim was in possession property, she was the owner under the Penal Code. Id; see Dominguez, 355 S.W.3 d 918. Although Carrasco opinion rendered Eighth Court of Appeals, it was transferred there from the Second Court Appeals under Texas Supreme Court's docket equalization efforts. Accordingly, the court followed precedent from Second Court of Appeals. ,See Tex. R. App. P.41.3

t4 *21 boyfriend to enter her apartment moments before her impending assault, at time she needs to most. This is an absurd result that warrants review this Court.

Dominguez misconstrued: what does it mean that "possession must be determined immediately prior not during the break-in"?

In Dominguez, Second Court of Appeals asserted that burglary of habitation cases, possession determined "immediately prior to not during break in." Dominguez v. State, 355 S.W.3d 918, 923 n.2 (Tex App.-Fort Worth p€t. refd). This holding would seem support the notion that the possessor of the property immediately before break-in would be the."legal owner" capable of revoking consent under Penal Code. Yet the Second Court of Appeals construed this precedent mean that because Appellee had possession apartment at some point before the break-in, that he could not be guilty of burglary habitation. Morgan, 2015 Tex. LEXIS 5411, at*6. In so holding, Second Court misconstrued what Dominguez stood for.

ln Dominguez, Dominguez claimed that since he came .possess the property after he broke in, he could not be guilty burglary habitation Dominguez, S.W.3d n.2. The court asserted that his claim was meritless:

To the extent that fDominguez] also appears argue that he acquired possession, lawful or not, under section 30.02 when he entered house so he could not have committed burglary, we note that this view the offense leads to the absurd result person who breaks into a home immediately takes possession it becomes owner, l5 *22 who then gives himself effective and retroactive consent to break in therefore cannot be found guilty of burglary. We are confident that this is not the result the legislature intended when it passed the burglary statute, and that to avoid this absurd result, possession must be determined immediately prior to not during the break-in. In other words, the legislature cannot have intended to allow one to acquire possession as against another already in possession, lawfully or not, by onets own unlawful entry.

Id. (emphasis added). Yet no case has interpreted how far back courts must look when determining possession prior to The break-in. Under Dominguez, if would seem that possession immediately prior to the break-in applied in this case would mean that since Regina was physically inside the apartment prior to the break-in, she possession. As that was not the holding of the Second Court of Appeals, this Court should grant State's petition indicate whether the Second Court Appeals misconstrued Dominguez. Or, this Court should grant State's petition clariff how far back time courts should look when determining possession prior break-in.

The Second Court Appeals vs. The Fourth Court Appeals: which standard applies determine who has possession?

While Second Court Appeals has asserted standard to determine possession is evaluating who had possession prior not during break-in, Fourth Court Appeals has established different standard. Under the Fourth Court's reasoning, possession measured time accused's alleged criminal act. Ramírez v. State, S.W.3d 686, 688 (Tex.

l6 *23 App.-San Antonio 2014, pet ref d) (citing Freeman v. State,707 S.W.2d 597,603 (Tex. Crim. 1986)).3 As there are two differing standards apply similar fact scenarios, Texas courts need clarification on which standard to properly apply.4

Applied properly, the Dominguez standard should govern.

Under afair interpretation Dominguez,Regina was the owner as she had possession immediately prior to the break-in. Whether Appellee had possession at some point the past is irrelevant. The State prays the Court grants review to clariff the proper interpretation application of the Dominguez slandard.

3 The Third Court Appeals has asserted that possessory rights are determined on the date the offense, without more specificity. See Mack,928 S.W.2d at223. a Under either application, it appears the Second Court of Appeals' approach to look into the future determine possession equally inappropriate. Morgan,2015 Tex. App. LEXIS 5411, at *6. The Second Court articulated that since the victim did not intend to revoke Appellee's consent forever, his consent not revoked prior the burglary and assault. In Ramírez,the Fourth Court asserted possessory rights night before burglary were not relevant its consideration ownership judged from time of charged offense. Ramírez v. State, 429 S.W,3d 686, 690 n.3 (Tex. App.-San Antonio pet refd); see Mack, S.W.2d at (possession determined on date offense); Tex. Penal Code L07(a)(39). Accordingly, Appellee's future claim to apartment should be equally irrelevant when determining possession time of offense.

t7 *24 PRAYER R RELIEF'

Accordingly, State Texas prays that the Court Criminal Appeals grants review this case permit full briefing on issues presented

Respectfully submitted, PAUL JOHNSON Criminal District Attorney Denton County, Texas zBo Y District Attomey Assi East McKinney, Suite 300 Detnon, TX 6209 State Bar No. 24077065 (940) 34e-2600 FAX (e4o) 34e-260r yael. zbolon@dentoncounty. com

CERTIFICATE OF COMPLIANCE The State certihes that State's Petition for Discretionary Review the instant cause contained a word count 3642, said count being generated by computer program Microsoft Word used prepare the document.

LO CERTIFICA TE OF'SERVICE True copies State's Petition for Discretionary Review have been sent United States mail appellate attorney Appellee, Stan Goodwin, North Carroll Boulevard, Suite 234, Denton, Texas 76201, and State Prosecuting Attorney, Lisa McMinn, P.O. Box Austin, Texas 787t1, on 1't day July, 2015.

LON Criminal Attorney *26 APPENDIX A

[Judgment of Conviction] *27 o o i 7vFË5::..F Cesu No. F-2013-1704-C CouNr INCTDENT No./tR¡l: 9zl83zt568 I Ao0z l-i

T¡rp Sretn op To<ns IN T¡lE'

v

DEWANMORGAN

SrRrp ID No,: Tx05804506 ,,J'

JuocmENT oF CoNvrcrroN BY JuRg\ t_ P "6€; |:[,t#t*" Judse Presidins: Hox. L. DEE SHIPMAN 6n4tzot4 .t MICHAEL GRAVES AND/OR At0orney for DEREK A. ADAME Attorney for Statel LINDSEY SHEGUIT Defendant: Ofrense &r which Defendant Convicted:

BURGLARY OF HABITATION - FAMILY VIOLENCE

Chareins Instrument: Statute for Offense: INDICTMENT 30.02 Penal Code

Date of Offense:

6120120t8 Plea to Offenee:

Deeree ofOffense: zND DDGREE FELOI{Y ENHANCED TO A NOT GUILTY lsr DEGREE FELO\IY

Vçrdict ofJu$L GUILTY

Plea tp I'i Enhancement Plea 2nd EnhancemenVHabitual N/A TRUE Paragra oh: Paracraoh: Findings on lnd Findiugs on l"t Enhancement TRUE N/A Enhancement/Habitual Paragraph Paragraph: DateSentence Imoosed: Date Sentence Commence: Punished Assessed by: t4 6lt4l20t4 JURY

Punishment and TWELVE (12) YEARS INSTITUTIONAL DIVISION, TDCJ Conñnemeut:

THIS SENTENCE SHALL RUN CONCURRENTLY, SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PI,ACED ON COMMUNITY SUPEBVISION FON N/A . Restitution: Regtitution Pavable to: 0ourt Costs: Fine: N/A N/A VICTIM AGENCY/AGENT Relmburse compensation paid by Denton County any appoi nted counsel on this cause, $ All payments previously made to above assessments are ORDERED credited above amounts. ant. TBx. CoDE CBIM. Pnoc. chapter 62.

Sex Offender Registration Requirements do not apply The ase of the victim at the time of the offenee was N/A From 0612012013 to From tÆ From to From to

Time = From Credited: From to to

N/A DAYS NOTES: N/A All pertinent information, ¡ames a¡d aasosomsnts indicatod above are iucorporaSed lnto the laoguage ofthe judgment below by reference,

This cause called trial Denton County, Texas, Tbe State appeared by her Diatrict Attorney

[27] MORGAN 1704-C TRIA.L JDMT(BurgHab-FV xlEnh)tdcj Page I of *28 o

o Counsel / lVaiver of Qgunsel.lselect one) X Defendant appeared in pereon with Counsel. tr Defendant knowingly, intelligently, and voluntarily waived the right to representatíon counsel in writing in open

court. It appeared to the Court that Defendant was mentally competent and had pleaded as shovvn above to the

charging instrument. Both parties announced ready for trial. jury selected, impaneled, and sworn. The INDICTMENT, wae read to the jury, and Defendant entered a plea to the charged offense. The Court received the plea and entered it of record, The jury heard the evidence submitted and argument of counsel The Court charged the jury as to ite duty to determine the guilt or innocence of Defendant, and the jury retired to consider the evidence. Upon returning to open court, the jury delivered its verdict in the preoence of Defendant and defense counsel, if any.

The Court received the verdict and OnopnED it entered upon the minutee of ühe Court. Punishment Assessed bv Jurv / Court / No electìon (select one)

[l Jury: Defendant entered plea and filed written election to have the jury aesess punishment, The jury heard evidence relative the question of punishment. The Court charged the jury and it retired to consider the question of punishment. After due deliberation, the jury wae brought into Court, and, in open court, it returned ite verdict as indicated above. ! Court. Defendant elected to have the Court assees punishment. After heanng evidence relative the question of punishment, the Court asseseed Defendant's punishment as indicated above. ! X" Election. Defendant did not fùe written election ae to whether the judge or jury should assess punishment.

After hearing evidence relative to the question of punishment, the Court aseessed Defendant's punishment as i¡dicated above. The Court FINDs Defendant committed the above offenee OBDERS, ADJUDGES AND DECREES that Defendant is GUILTY of the above offenee, The Court FTNDS the Preeentence Investigation, if so ordered, was done according to the applicable provisions of TEX. Coos Cnltr'f. PRoc. Art.42.12 $ I,

The Court Onnpns Defendant punished as indicated above. The Court Onnpns Defendant pay all fines, court costs, reetitution as indicated above. Pu ni shment Optiong (se lect .g-,¡re)

[l Confrnement in State Jail or lnstitutional Division: The Cou¡t OnnoBS the authorized agent of the State of

Texas or the Sheriffofthis County to take, safely convey, and deliver Defendant to the Director, Institutlonal Division, TDCJ. The Court ORDERS Defendant to be confined for the period in the

manner indicated above. The Court ORDERs Defendant remanded to the cuetody of the Sheriff of this county until Sheriff can obey the directions of thie sentence. The Court, OnlpnS upon release from confinement, Defendant proceed immediately to the Ofnîce District Clerk, Denton County, Texas. Once there, the Cou¡t ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, restitution and any additional fees incurred as ordered by the Cou¡t above. ! County Jail-Confinement / Confinement Lieu of Payment: The Cou¡t ORDEBS Defendant immediately

committed to the custody the Sheriff Denton County, Texas on date the sentence commence, Defendant shall be confined Denúon County Jail period indicated above. The Courü ORDEBS thaù upon release from confinement, Defendant shall proceed immediately Office District Clerk, Denton County, Texae. Once there, Court Ononns Defendant to pay, or make arrangements to pay, any remaining unpaid fïnes, court coets, restitution and any additional fees incurred ordered by the Court above. E n¡ne Only Payment, The punishment aeseesed against Defendant is for FINE ONLY. The Cou¡t ORDERS

Defendant to proceed immediately ùo Office Denton County, District Clerk. Once there, Court ORDEBS Defendant to pay or make arrangements to pay all finee and court costs ae ordered by the Court in this cauee.

[28] MORGAN 1704-C TRIAL JDMT@urgHab-FV xrEnh)tdcj Page 2 *29 I o

Execution lSuspension of Sentence (select one)

D The Cou¡t Onopns Defendant's sentence EXEOUTED. tr The Court ORDEBS Defendant's sentence of confinement SUSPENDED. The Court OßppBS Defendant placed on

community supervision for adjudged period (above) eo long Defendant abides by and does not violate the terme and conditions of community supervision, The order eetting forth the terms and conditions of community supervieion is incorporated into thie judgment by reference,

The Cou¡t OBDEBS that Defendant is given credit noted above on thie sentence for time spent incarcerated, Furthermore. followins speeial fltndinss or orders apply: Family Violence wording: REVISED 9.24.08

THE COURT makee an affirmative finding that victim of this offense family member of the defendant or member the defendant's household,

The Court FINDS that Defendant wae prosecuted an offenee under Title the Penal Code that involved family vioìence. TEX, CODE CRIM. PROC. A-rt.42.013.

THE COURT FURTHER FINDS before the commiseion of offense alleged in paragraph one of indictment, on 1óth day July, 2004, cauee number F-0371665, in Dallas County, Texae, the defendant was convicted the felony Robbery Criminal District Court No, 3,

Signed and entered on May 14,2014

JUDG

Clerk:

Right Thumbprint ^[29] MORGAN 1704-C TRIAL JDMT(BurgHab-FV xlÐnh)tdcj Page *30 APPENDIX B

lMorgan v, State, No. 02-14-00231-CR, Tex. LEXIS (Tex. App.-Fort Worth }/ray 28, pet. filed)] *31 No Shepard's SignalrM

As of: June 25, 2015 12:43 PM EDT

MotssÐ-]'ÅIsls Court of Appeals of Texas, Second District, Fort Worth May 2015, Delivered; May 28,2015, Opinion Filed NO, 02-14-00231-CR

Reporter

2015 Tex, LEXIS THE the lesser-included assault beyond a reasonable

DEWAN MORGAN, APPELLANT V STATE OF TEXAS, STATE doubt. Outcome

Notice: PUBLISH The appellate court modified the trial court's Prior History: [*1] FROM THE 2llTH judgment to delete the burglary conviction and to DISTRICT COURT OF DENTON COUNTY. instead reflect a conviction for assault, it TRIAL COURT NO, F-20I3-1704-C. TRIAL reversed the trial court's judgment on punishment COURT JUDGE: HON, L. DEE SHIPMAN, remanded the case solely for new punishment trial on defendant's second Core Terms lesser-included assault conviction resulting from his acts against the complainant. apartment, assault, burglary, assault conviction,

lesser-included, door, commit LexisNexis@ Headnotes

Case Summary Constitutional Law > .., >

Procedural Due Process > General Overview Overview Criminal Law & Procedure > Trials > Verdicts > General Overview HOLDINGS: []-The evidence was Criminal Law & Procedure > .,. >

uncontroverted defendant lived at an Review > Substantial Evidence > Sufficiency of apartment kept his possessions inside it; Evidence [2]-Because there was no evidence that defendant's Evidence > Burdens Proof > Proof Beyond

tenancy apartment was terminated before his arrest, but there was evidence form of Reasonable Doubt

the complainant's testimony that she specifically Evidence > \üeight & Sufficiency did not intend terminate defendant's tenancy, evidence insufficient to support I/N/ In its due-process review sufficiency evidence support conviction, the

defendant's conviction burglary habitation; [3]-The evidence was sufïicient support an appellate court views all evidence assault conviction beyond reasonable doubt; light most favorable verdict determine whether any rational trier of fact could have found [4]-In this unique situation, because the completed essential elements the crime beyond a assault was the most severe lesser-included offense available, the evidence satisfìed the elements of reasonable doubt.

[2015] Tex, LEXIS *l Judges: PANEL: LIVINGSTON, C.J,; Criminal Law & Procedure > ... > States > Mens Rea > Specific Intent DAUPHINOT and GARDNER, JJ, Criminal Law & Procedure > ... > Opinion by: LEE ANN DAUPHINOT Criminal Trespass > Burglary > Elements Opinion HN2 person commits the offense of burglary of

a habitation if he enters a habitation without the After two separate incidents involving his effective consent of the owner and with intent to girlfriend, with whom he lived, a jury convicted commit assault or attempts to commit or commits Appellant Dewan Morgan (1) assault, the as sau lt. lþ,y. P-e&!tL{)¡ el.e- h"ul-j= JlO2t u ) ( 11, ¡¡1 lesser-included offense aggravated assault, and (201 1), (2) burglary a habitation, charged in separate

indictments, trial court cause numbers Criminal Law & Procedure > Criminal Offenses > F-201 3-l 703-C and F-2013 -1704-C respectively.

General Overview The jury found the enhancement paragraph true and assessed his punishment twelve years' I/N3 See Tc¿-,PJlll C¡de Ann. N confinement in the burglary case and at 365 days' (Supp. 20t4), confinement in county jail for the assault. The trial court sentenced him accordingly. Appellant Criminal Law & Procedure > > Indictments > does not appeal from his assault conviction and Contents > General Overview sentence in F-2013- 1703-C.

IlN4 See Te.t,.Ç"ede Cúu, Ptpt:, At:ttt, et|,21,Q8 In his sole point, Appellant contends that the (200e). evidence is insufficient to support the jury's verdict guilt in the [*2] burglary case because

Criminal Law & Procedure > ,., > State failed to prove beyond reasonable Criminal Trespass > Burglary > General Overview doubt he entered apartment without the effective consent owner, That is the only ^ÉIN5 The term "occupied" burglary cases is element he challenges. Because the evidence does equivalent to possession, not support jury's determination thatAppellant Criminal Law & Procedure > .,, > lacked effective consent the owner when he Criminal Trespass > Burglary > General Overview entered the apartment, in which he cotenant,

but Appellant admits to assaulting Complainant fINó Possession must be determined immediately eviclence sufficient support that prior not during a break-in. lesser-included offense, we modify trial court's judgment this case, F-2013-1704-C, delete Counsel: FOR APPELLANT: J. STANLEY the burglary conviction instead reflect an GOODWIN, DENTON, TEXAS, assault conviction. We reverse trial court's judgment punishment and remand this case FOR STATE: PAUL JOHNSON, CRIMINAL solely new punishment trial on this second DISTRICT ATTORNEY; CATHERINE LUFT, assault conviçtion resulting from Appellant's CHIEF OF THE APPELLAIE SECTION; YAEL actions against Complainant. ZBOLON, MICHAEL GRAVES, LINDSEY

SHEGUIT ASSISTANT CRIMINAL DISTRICT Brief Facts ATTORNEYS FOR DENTON COUNTY, Appellant moved into Complainant's one-bedroom

DENTON, TEXAS, apartment, and after he found job, he paid

Page ol *33 2015 Tex, LEXIS 5411,'Fz Appellant tried the doorknob, tried his key,

electric bill and miscellaneous household expenses while Complainant paid the rent. No one other knocked on the door, and rang the doorbell but than Appellant and Complainant lived in the was unable to open the door, and Complainant refused to open the door for him. He threw apartment, although Appellant's children stayed there when they came to visit him. Both something at the side window and broke it, Then Complainant and Appellant had a key [*3] to the he kicked the door until it opened, and he went apartlnent, inside the apartment. Complainant and Appellant fought and hit each other, and Appellant bit her One day Appellant and Complainant got into an left breast. At trial, Complainant remembered argument in the living room, and Appellant slapped Appellant's grabbing her but did not remember her, Complainant called the police. When they his punching her or choking her, although in her arrived, she gave them a written statement. In the written statement, she had said that he punched statement, she said that after Appellant slapped her, she called the police, At trial, she admitted her and choked her. She had called 911, and the recording of that telephone call was admitted into that she had also said in her written statement that he had gone to the kitchen and returned with a evidence.

knife, but she testified that that part of her On cross-examination, Complainant testified that

statement was untrue, Appellant left the apartment but returned to live with complainant the same when she locked the apartment door, her intent was not to kick Appellant out of the apartment day. forever but rather "to have a cooling-off 1+5¡ couple of months later, the couple had another period." She also testified that at the time of the problem. Complainant testified she and incident, Appellant lived in the apartment with Appellant had had words that morning because he her, kept personal possessions there, and had his wanted her to take money from him some of own key to the apartment. He had spent the night the household bills, but she refused the money. before the incident in the apartment. After work, Complainant Appellant ran into

each other convenience store near the The apartment lease showed Complainant the apartment. Appellant asked Complainant to wait leaseholder of the apartmentt Appellant not outside for him because he wanted to talk to her. shown as a resident. She did not want to talk to him, so instead of waiting, she went to the home of Dee, a former No Evidence of Absence of Owner's Consent co-worker, picked him up, and then went her HNI In our due-process review of sufficiency apartment, where she planned stay while Dee the evidence support conviction, we view took her pickup truck to get the [t4] two them something eat. Dee Appellant saw each all of evidence light most favorable to other outside apartment near the truck ancl verdict to determine whether any rational trier exchanged words, and Appellant came the fact could have found the essential elements of the crime beyond reasonable doubt, I HN2 A apartment while Dee left truck. Meanwhile, person commits offense burglary a Complainant, who had seen Appellant with Dee, habitation if he enters habitation without locked the cleadbolt on the apartment door so that effective consent owner with intent to Appellant's key would not work and he could not commit assault or attempts to commit or commits come inside.

(ì'inr. ¿\pp. 20l-l).

Page ol *34 2015 Tex. LEXIS 5411, *5 testimony that she specifically did not intend to

assault.2 HN3 "',Owner' lneans a person who . . . terminate Appellant's tenancy.

has title to the property, possession of the property,

whether lawful or not, or a greater right to Applying the appropriate standard of review, we

possession of the property than the actor."3 The hold that the evidence is insufficient to support code of criminal procedure provides that in the Appellant's burglary conviction and sustain [*7] indictment, his sole point. I1N4 lw]here one person owns the property, Modification to Lesser-Included Assault and another person has the possession of the same, [t6] the ownership thereof may be In this case, because burglary was charged via alleged to be in either. Vy'here property is intent to commit an assault, attempt to commit an owned in common, or jointly, by two or more assault, or a completed assault, the jury did not persons, the ownership may be alleged to be in "necessarily f[i]nd every constituent element of all or either of them.a th[e] lesser offense,"e That is, we do not know which burglary theory jury relied on in I1N5 The term "occupied" in burglary cases Ís reaching its verdict.r0 Appellant conceded during equivalent to possession,s his opening statement to jury, however, "And Here, Appellant cotenant of Complainant there's third offense, assault which was part burglary, which you will hear for when she locked the door and he kicked it in, The yourself evidence prove that he is guilty of. testimony shows that Appellant was either a There[ are] three offenses. He is guilty the tenant will or a tenant at sufïerance,u The evidence is uncontroverted that he lived at the assault. That will be very clear to you." Appellant also admits his brief that he committed the apartment and kept his possessions inside it, As this court has previously explained, HN6 lesser-included offense assault; concedes that evidence is "clearly sufficient" support an "[P]ossession must be determined immediately assault conviction, and requests that this court prior not during break-in."7 As tenant, modify the judgment reflect that conviction Appellant had the right to occupy and control the instead burglary convictionrr and that we apartment until his tenancy was terminated.s There is no evidence that Appellant's tenancy was remand this case for punishment hearing on the assault conviction. Further, we hold terminated before his arrest the incident, but there is evidence fbrm Complainant's evidence, detailed above, sufficient support ' :[çn, l]criiù Ço_qþ AIu, $ --l().!-l?(irllll, tl) (west ^[201] l). .r /r/ N 1.07(î)(.ì5)(West Supp.20l4).

o !."_x, l"luql"ç Í.ìúlr, llr;p"ç-, 1\1¡¡1, itil, ll,Q.$ (West 2009).

o trr,tU,,(.-501 Sl&2_d_¿f_E2l; Ptttt,t.Dutvt.419S.\t,2d4l'l .121 ('I'cx. Cir,.¡\pp.-'lyL-rI9(j7.wlitrcf'drll.qì; 49Tex.Jur.3d Inndlord Tenant $$ l3-14 (2009).

' l"¡,xr!:.SLl!Lr: 5l¿4¿:. :155 S-.Ì/-3cl 9.18, 91.ì .n.2 ('l'cx, Ano.-lìrrt \\brth 2011. pct. rcf'd).

' See å1.í_¿**1Q! S-,-lñ'.2_-{lt-ï23; A!!tlL,5-&t44J-?fq\-Çr-ìru242, 2a-1. S.W. 7l-l-.712 (1898).

e See 'l'hornton v. State.425 S.W.3d 289.298-99 (Tcx. Crin. Aon.2014\.

ro See Ro¿lr¡løez v. Støl¿.454 S.W,3d 503.,5t0 (Tex. Crim. Aop,20l5) (op. on reh'g).

" Se¿lìúlr.r,,/"/,,, r,/, . Clt. llll.lllli'l!r.72 L. Ed. ld ^[652] (l9lìl).

*35 Page ^[2015] Tex, LEXIS 5411,"7 conviction resulting from his acts against

an assault conviction beyond reasonable doubt.l2 In this unique situation, because completed Complainant. [*8] assault is the most severe lesser-included lsl Lee Ann Dauphinot

offense available, evidence satisfies the

elements lesser-included assault beyond a LEE ANN DAUPHINOT reasonable doubt, Appellant conceded guilt of

lesser-included assault trial and on appeal, and JUSTICE he seeks this relief, we modify trial court's PANEL: LIVINGSTON, C,J.; DAUPHINOT and judgment in F-2013-1704-C to delete the burglary GARDNER, JJ. conviction instead reflect conviction for assault, we reverse the trial court's judgment PUBLISH in F-2013-1704-C on punishment remand this

case solely for a new punishment trial on DELIVERED: May 28,2015

Appellant's second lesser-inclucled assault

tz SeeThornton,425S.W.3dat300iseealso./¿rr:Å.rr¡¡r.441 t.ì,S.¡t319.99S,Ct.4t2789; /.)¿åå,r.434S.W.3dat l7t).

Page ol *36 APPENDIX C

[Texas Jurisprudence: Landlord Tenant Tex. Jur. Landlord Tenant $ l3 (Tenancy Will)l

4-9- Tpx lur l¿nd.lp:rd a-nd Tpnant þ Texas .lurisprudence > Inndlord and Tenqnt > L Ovemiew of Landlord a.nd Tena.nt Relat¡onship > C, Kínds oÍ Tenancies

Author

Amy G, Gore, J.D., of staff of National Legal Research Group, Inc., Tammy E. Hinshaw, J,D., Elizabeth Williams, J.D.

$ Tenancy at will

One in lawful possession of premises by permission of the owner or landlord no fixed term is a tenant at will.nr

Illustration: A tenancy at will found an action by tenants seeking enforcement a long-term lease gas station property, where the evidence was insufficient to support jury's finding the parties had orally agreed a 15-year lease with a 5-year option. The testimony was clear that no agreement as terms had been reached the parties; following negotiations, the landlord had sent a proposed written lease the tenants who had changed terms ancl sent lease back, but the landlord had never received modified lease'"2 tenant at will has no certain or sure estate; the lessor may put the tenant out at any time,n3 Thus,

distinguishing characteristic a tenancy will uncertainty to the duration tenant's holding premises.''a In this respect, tenancy at will differs from renting for a periodic term, such as from month to month.ns Moreover, contrast to tenant at sufferance,''6 tenant at will possesses the property with the owner's consent,nT

nr West'* Key Number Digest, Landlord and Tenant lwestkeylllT' ll8

Texas Fonns Legal and Business $ 9:126 (Lease indelinite duration -- Tenancy at will)

West's Texas Forms, Lancllorcl ancl Tenant to Beyer, l5 West's Tex. Forms: Real Property li 16. l0 (Lease term -- Tenancy at will) er¡ls_Cqrz¡i_lueitr¡crrrs. t¡c_v. N4adaliiL_9Jl_l-W2dj_9fft¡.11:¿.-SLrn ¡\rrtonio 1996r. writdenicd, (Mar.2l, 1997):ICM Morte' Corp.v.Jacob.902S.W.2d527(Tex'App.ElPaso 19941' writdenied,(Aug' I' 1995); Frndev v- Lcc, 8iì0 S. )rl llØ lTr:x Anrr Iìl lht",J l1ì1I,1,),, wril denied, (Oct. 1994).

i2 writ denied, (Jan.2'7, 1993).

n3 ICM Corp, Morte. Jacob,902 S,W.2d v, App' El Pøso 1994), writ denied' (Aug, I' (Tex, 1995). ltrrh¡UrþS r,Lqrllllr-12jlhL446.Ztl-S-_W¿d-107_f]_21!l Urbtrn r,. Clrarr'le,v. 106 S.W,2d l-5tì (Tex. Cliv. Alrp. Eastlantl 1947). writ

t14 refused n.r.e., (Feb. ll, 1948).

As to periodic tenancies, sec $ I2.

n6 $ 14.

n7 ICM Morts. Coro. v. facob,902 S.W.2d 527 (Tex. EI Paso 1994), writ denied, (Aug. I, 1995).

49 Tex Jur Landlord Tenant $ l3 There are almost an indefinite variety of ways in which a tenancy at will may be created,ns Any lease for an uncertain term is, prima facie, a lease at will,ne A lease of property that permits the lessee to occupy property as long as lessee may desire creates tenancy at will.nro Moreover, a tenancy at will exists where premises are occupied pending the performance of formalities that attend execution of a lease,nlì and some circumstances, where one who has occupied premises during a definite term holds over with the permission of landlord.nr2 A lease general tenns to run until sale premises or happening similar contingency is tenancy at will only,''r3 tenant's continued possession land covered prior lease but omitted fiom a succeeding lease a tenant at willnla or sufferance,nt5 Reference

West's Key Number Digest, Landlord and Tenant lwestkeylT0 1o73, 113 ll5, 117 119 A,L.R. Index, Landlord Tenant

West's A.L,R. Digest, Landlord and Tenant [westkey]70 to73, ll3 ll5, 117 ll9 futt ,ltu,.?d, !--tttulJtttt!-u¿tr[ 7i:"r:¿.ttt./ \\S Ll!) to l2-4

C,J,S., Landlord and Tenant $$ 24 to 28,208 to 294

Landlord' s Recovery Damages f'or Tenant's Wrongful Holding over of Leased Premises, 68 Am. Jur.

Proof Facts 3d I

Texas Forms Legal and Business $$ 9:119 to 9:126,9:105

'West's Texas Forms, Landlorcl Tenant to Beyer, l5 West's Tex. Forms: Real property $$ 16.8 to l6.rl

Supplement

Cases

Lease term "equal to remainder tenant's natural life, or until such time as she voluntarily vacates !þUþ ulgurlLtr)u!-r!t. LlÉ--(lo.- tìf-'l'cx-=ì!')-l ¡i.!.)ù'. ll)l Ll il9.ll. ì8

rìe l loldonlbc r. l-urino. ^[124] 446. '79 S W 2rl i l9l5 r.

nl0

l_!)1ll writ relused n,r.e., (Feb. 1948).

.r I Mtkqylz rr ll,rr¡l¡¿122!-!!y-9ó8 üi¡,Or,4l:!JÞt Worth It)2I r.

('l'cx. I 980).

As holding over, generaììy, see $$ 291 to 300.

ilr'r Lcl v. tlcr.nan<Jcz. l0'Icx, l-ì7. ltì-5.1 WL l28t) (18.531: writ 1922).

n l4 4,,& A, l-jgqg¡ sß:rr:l l:, l,)r¡t-c.it¡1" 3rì't $.)v.2"d 7'1il (1.'r.!li::, Atu-l, [);tLlit,l l()rrll

nl5 $ 14. Page ol

49 Tex Jur Landlord Tenant $ l3 the premises," created tenancy at will terminable at any time at will either party. EfÏþl v..Rosberg, JþA-S.W*A62(t lJþt AUt Dullls2-QLzJ reh'g overruled, (Mar, 22,2Q12),

A lease must be for certain period time or it will be considered tenancy at will. ldÍel v, Rt¡sberg.

36!) S,W3d 6?ó" tïht, Al¿p. Dctl.!"(¿;' 20!2), reh'g overruled, (Mar, 22,2012). Tenants were precluded from invoking doctrine promissory estoppel to bar application statute frauds to an alleged oral representation by landlord that tenants could stay on leased lake lots long as they wanted, absent showing landlord promised sign a written document that complied with the statute frauds setting out an end date for leases' duration. Pxn,idence Lctntl S< t yjc-qt- LLÇ-y,Jo!!!!-l5l--S-t/Øld- 5j-8-!lþ¿,-App. Eus' tl u tt tl 20 I I ).

A tenant at will has no certain or sure estate, and the lessor may put him out at any time. A,spcttu'rnd review filed, (Apr. 26,2011) petition for review filed, (May 26,2011)' tenant will, contrast tenant at sufferance, possesses property with owner's consent,

petition review filed, (Apr. 2011) and petition for review filed, (May 26,2011).

Source: V/EST GROUP

Texas Jurisprudence Copyright @ 2014 West Group

Page ol'3 *40 APPENDIX D

[Texas Jurisprudence: Landlord Tenant 49 Tex. Jur. Landlord Tenant $ (Tenancy Sufferance)l

49_ Tcx Jar,,l¿tndlor_d aad Tenøtú þ 14" > Inndlord a.nd Tenant > L Ovemiew of Landlord ønd Tenant Relationship > C. 'fexas .lurisprudence Kinds oÍ Tenqncies

Author

Amy G. Gore, J,D., of staff of National Legal Research Group, Inc,, Tammy E. Hinshaw, J,D,, Elizabeth Williams, J.D.

$ L4 Tenancy at sufferance

A tenant who remains in possession of premises after terrnination of lease occupies "wrongfully"and is said to have a tenancy at sufferance,nr Thus, fbr example, a tenancy at suffèrance is createcl and exists where a person who has entered as a tenant for a term holds over after the expiration of term.n2 So, too, a person holding over afler a judgment divesting him or her of title real property is regarded as a tenant at sufferance of prevailing party,n3 A party that holds over after an adverse judgment has been rendered against it may, in the alternative, be referred a "permissive tenant,"n4 in addition a "tenant at sufferance,"''s

A tenant's continued possession of land covered by a prior lease but omitted from a succeeding lease as a tenant at sufferance''6 or at will.nT Distinction: The clistinction between tenancy at will a tenancy sufferance is that in former both the entry occupancy are lawful, whereas in the latter, although the entry is lawful, occupancy is not.ns A tenancy at sufferance is lesser possessory estate than tenant at will.''e A tenant sufTerance is merely an occupant naked possession of property afier his or her right possession ''r 'Wes('s Key Number Digest, Lancllorcl ancl Tenant lwestkey]l17, ll9

Landlord's Recovcry l)arnagcs Tcnant's Wrongful Holding ovcr Lcascd Premiscs, 68 Aln, Jur. Proof Facts 3d I Wes('s Texas Forms, Lancllord Tenant to Beyer, l5 West's Tex, Fonns: Real Propely $ 16. I I (Lease term -- Tenancy al suftèrance) Çl¿r"r,l,s.r' l:,sl-o"¡itt, l,Ì{ s,W.,lùl0l (-l.p-x, Anp-hl lliLlll l0llÓl' "tenant at sufferance"is one who wrongfully continues naked possession property after his or hel right possession has ceased. (i!þ,t,,,,l r. Dyuç-cr ñ:lrr,l,:l,qcilLìt s-çll:i"ç"ç1,!.,,9, liE '5.w,1! ilI t,l!:¡.Apl' l"çn !]:tlt"ttt ?l)l):[1.

t'2 lntonriùi-q¡-¡4l¡!][ì¡\I-<.llor-.Ll-¡ql!Lalr,(l7-Tcx 24-lS,lY-515 (1S8-0.

As ro holding over, gcncralìy, see $$ 291 to 300.

rrr .\!çlç-d- l:, f.l..Lrç:Lj"qld,-1,,1,'!$,\!l.lr! Z()J ll,ç¡, (lir.ôru, ,t:.it¡tlottrl rL()ól-). writ refused n.r,e,, (Oct. 2,s. l)'

n4 wi!dNl-!-!|Ð!rl -l 2..() 5-\yjtl!l¿O!¡.--¿\pll.]i'¡¡r\a¡1200.ì I

Ccnelally, an occupant the property holding over al'(er execution of'a deed is considered permissive ten¿tnt whose right !o possession is inferior to that thc party holding title. Nl

,JQ(þ). review denied, (Mar. 23,2007).

'[rxlrkmr 2(X)-] L

n6 A_-&A_l,r_quor-5_tercs rr l)qu¡¡r-l-Ei_S.lY2rl Lì|.(lc,vCt-r'-,,\Ur Q¡Il¡.s !j)ff-¡.

$ l3'

"- ^[707] (1891).

49 Tex Jur Landìord and Tenant $ ^[14] has ceased.nro A tenant at sufferance does not assert a claim to superior title,nrr is not privity with owner,nl2 and possesses no interest capable of assignment.''13 Practice Tip: To remove a tenant sufferance, the new owner must file forcible detainer suit.nra Also, a tenancy at sutlþrance must be repudiated before the adverse possession statutes begin to run on the lenant's claim aclverse possession.nl-5

Reference

West's Key Number Digest, Landlord Tenant [westkey]7O to 73, 113 to l15, 117 to ^[119] A.L.R. Index, Landlord Tenant

West's A,L.R. Digest, Landlord Tenant fwestkey]7O to73, 113 to l15, ll7 to l19 Ant. Jur. 2tl, Lundlr¡rd ¿tncl Tettunt iN ll0 to 124

C,J.S., Landlord and Tenant $$ 24 28, 208 to 294

Landlord's Recovery Damages for Tenant's Wrongful Holding over of Leased Premises, 68 Am. Jur.

Proof Facts 3d I

Texas Forms Legal and Business $$ 9:ll9 to 9:126,9:105

West's Texas Forms, Landlord and Tenant Beyer, l5 West's Tex. Forms: Real property $$ 16.8 to 16.1 ^[1]

Supplement

Cases

If lease can be terminated will lessee, it may also be terminated at will the lessor. tenant at sufferance is merely an occupant naked possession property after his or her right to

possession has ceased, does not assert claim superior title, is not in privity with the owner, and possesses no interest capable assignment. Aq¿¡.u-!&JLel AplrrLualt Çt¿t2,--u-,-l-aituuul-lLtt Jt) As to tenancy at will, see $ 13.

ne ICM Morts. Corn. v. lacob,902 S.W.2d ^[527] (Tex. Apo. El Paso 19941, writ denied, (Aug. l, 1995),

n ro ICM Morts. Corp. v. Jq.cob. 902 5.W.2¡l 527 (Tex. App. El Paso 1994), writ denied, (Aug. I, 1995); Co'rqìns v. Lco. [ì49 S,W.2d 371ì ('l'cx. ¡\nn. Ht'¡ust<rn l4th Dist. l99.ll.

n I I ICM Morte. Corp. v. Jacob, 902 S.W.2d ^[527] (Tex. App. El Paso 19941. writ denied, (Aug. 1995).

nt2 ICM Morte. Corp. v, Jacoh,902 S.W2d ^[527] (Tex, Aon. El Paso 1994). writ denied, (Aug. I, 1995); (ìoe,qins v. Lco. 849 S.W.2d ll]r re¿,App*_l lquQll4lh- At$ .1 9t31.

nr'ì ICM Mortg. Corp. v. .lacob.902 S.W.2d (Tex, Anp. El Paso 19941, writ denied, (Aug. I, 1995).

199-{). writ denied, (May 4, 1995).

As lorcible entry and detainer, generally, see Tex. Jur. 3d, Forcible Entry and Detainer $$ I 13.

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Page o1 *43 49 Tex Jur Landlord and Tenant $ l4

S.W.3d 621 (Te.r, App. ÍIrntsron l.çt Dist.20llt, petition for review filed, (Apr. 26,2011) and petition for review filed, (May 26,2011). tenant at sufferance falls short of being a trespasser only by virtue of having initially been in

possession rightf'ully; he may thus be treated by the landlord either as a trespasser or periodic tenant retroactively the beginning the relationship. Aspenv,rtr¡tl Apurtmettt ()orp. v. ()rtinntut'h.

!1c, ,1..19 ,S, W.3ri. 62- ! tTc,,r, Apt¿, fltuuleu,hl Ði";t, ZQ-!..1, petition for review filed, (Apr, 26,2011) and petition for review filed, (May 26,2011).

Second purchaser apartment complex following foreclosure did not consent lessee's continued possession apartment complex laundry rooms under lease, and thus lessee became tenant at sufferance and coulcl not be liable the second purchaser for breach lease, where second purchaser gave lessee written notice lease had been terminated foreclosure and requested that lessee vacate laundly rooms, second purchaser did not cash checks received from lessee, second purchaser filed forcible entry detainer suit against lessee, and second purchaser continued to assert that lessee Ittt'.,-l49S.W,.ld62l (Te.u. wasrequiredtovacateproperty, A,slten\yootlApurttnent()orp.t'.()oinmat.'11, r'/ /)i,ç/ 2() I I I petition for review filed, (Apr. 26,2011) petition for review filed, t\,nn. Hot,t.slrnt (May 26,2011).

The general common law rule provides that tenant who remains possession the premises after termination lease occupies "wrongfully" said have tenancy sufferance.'llq,lor r. (Te,y, Apt¿. frçtLltruuil,2Ql.U, petition review filed, (Mar' 24,2010).

Çqrl¿çjg.!,-31-4 .1-!TJ"r-l- "),rl-5 Source: WEST GROUP

Texas Jurisprudence Copyright O l4 West Group

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