Opinion
NO. 14-17-00566-CR NO. 14-17-00567-CR
04-10-2018
RANDALE WAYNE PORTIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2 Bell County, Texas
Trial Court Cause Nos. 2C16-08918 & 2C16-08919
MEMORANDUM OPINION
A jury convicted appellant Randale Portis of the offenses of criminal trespass to property and criminal trespass to a habitation. Consistent with the jury's assessment of punishment, the trial court sentenced appellant to a $500 fine with no imprisonment on the criminal trespass to property offense, and ninety days in the county jail with no fine on the criminal trespass of a habitation offense. On appeal, appellant challenges the legal sufficiency of the evidence supporting his convictions. We affirm.
I. FACTUAL BACKGROUND
In December 2016, appellant's parole officer, Honee Sommers, was working with appellant to find a place for him to stay after he was released from jail. Initially, appellant was to stay with the complainant, Thomas Rhodes, at a house located at 306 North 4th Street in Temple, Texas (the Property), but Rhodes contacted Sommers and told her that he did not want appellant to reside there. Sommers informed appellant that he could not go to the Property. Sommers also arranged for appellant to obtain a bus ticket and housing in Austin. Appellant was supposed to meet with Sommers upon his release from jail on December 1, but appellant did not show up.
Appellant instead went to the Property. Appellant's girlfriend was an old friend of Rhodes, and at her request, Rhodes allowed appellant to stay at the Property for a while. At least four or five other people were staying with Rhodes in the three-bedroom house on the Property. Appellant overstayed his welcome, however, and Rhodes asked appellant to leave. Rhodes did not want appellant to stay with him anymore because there was no room for appellant and because Rhodes did not care for appellant's "past attitude and conduct."
On December 7, 2016, Rhodes called the police about appellant multiple times over the course of several hours. Each time, appellant would leave before the police arrived and then return after the police had gone. Rhodes told appellant "about half dozen to a dozen" times that he could not be there. At least two occupants of the house also told appellant that he was not supposed to be there and confirmed that appellant had been told multiple times not to return. At various times, Rhodes and the occupants saw appellant at both the front and back doors of the house and inside the house.
Police initially received a disturbance call from Rhodes at around 2:28 a.m. on December 7. When the police arrived at the Property, Rhodes stated that appellant had gotten into an argument with another man. The argument escalated into a physical altercation resulting in injuries to appellant's head. Appellant was not there, however, and the police were unable to locate him.
A few minutes after the police returned to the police station, they received a call that appellant was back on the Property. The police returned, but appellant was no longer there. Rhodes told the police that he wanted appellant banned from the Property. Consistent with department policy, one of the officers filled out a "Temple Police Field Interview Report" card reflecting that the homeowner, identified as Rhodes, wanted appellant banned from the Property.
The police searched the area for appellant, and eventually located him at a Cefco convenience store. A clerk at the Cefco told the police that appellant was in a restroom and that he looked like he had been in a fight. The police spoke to appellant, who identified himself and confirmed that he had been in an altercation. The police told appellant that he was banned from the Property. Because appellant appeared injured, emergency medical services were called to the Cefco. After appellant was checked out by emergency personnel, the police again told appellant that he was banned from the Property and that he could not return.
As the police were driving away from the Cefco, they saw appellant walking down a street in the direction of the Property. The police stopped and asked appellant where he was going. Appellant stated that he was going to get his jacket from the yard next door to the Property. The police again told appellant that he could not return to the Property and warned him that he could be arrested if he went back. Appellant denied that he was going to the Property. The police then went back to the police station.
A little while later, the police received another call that appellant was back on the Property. When the police arrived, they saw appellant knocking on the front door. Appellant stated that he had some clothing and shoes in the house. The police gave appellant an opportunity to collect his belongings, but appellant instead walked away, saying he would come back and get his property later. The police warned appellant that he needed to get whatever he wanted now, because he was not allowed to come back. The police then left.
When the police arrived at the station, they received yet another call that appellant was back on the Property, this time knocking on the back door of the house. A wooden privacy fence enclosed the back of the house and there was a "no trespassing" sign at the front of the house. The police returned to the Property, but they could not locate appellant. A portion of the back fence was discovered to have been kicked down. The police took a written statement from Rhodes and filed a warrant for criminal trespass against appellant.
Around 8:30 a.m. on December 7, the police were again called to the Property because the occupants had heard a window break. The occupants then saw appellant in the living room of the house. Although no one saw appellant enter through the broken window, it had been unbroken before appellant entered, and no one had allowed appellant to enter. When the police arrived, Rhodes and some of the occupants were outside the house. The police went inside and found appellant in the bathroom. Appellant was arrested and taken to a hospital before being transported to jail. At the hospital, appellant confirmed that he did not have a key to the house on the Property. Appellant claimed that someone let him in the house, but he did not identify that person.
At trial, appellant testified in his own defense. He stated that he had been staying with Rhodes at the property since 2014 and that his girlfriend had lived there temporarily until she was arrested. Appellant stated that he was not aware that his probation officer, Sommers, was looking for another location for him after he got out of jail, and he had never heard that he was not allowed at Rhodes's house before he went there on December 1, 2016. Appellant explained that when the police were called on December 7, he left because he was worried that he had a warrant for failing to meet with Sommers as required. According to appellant, the head wounds he sustained in the fight with the other man while at the Property left him unable to concentrate, and when he was at the Cefco, he did not understand that the police were telling him that he was banned from the Property, only that there was a possibility that he could be banned. Appellant denied that the police later stopped him on the street and again told him he was banned. In his words, appellant was just "trying to go home" and had "no other place to go."
The jury found appellant guilty of two counts of criminal trespass. The jury also assessed appellant's punishment in each case, and the trial court sentenced appellant in accordance with the jury's assessment. On June 12, 2017, the trial court signed judgments in both causes. Appellant appealed his convictions to the Third Court of Appeals, and the cases were subsequently transferred to this court.
Because of the transfer, we must decide the case in accordance with the Third Court of Appeals' precedent if our decision otherwise would have been inconsistent with that court's precedent. See Tex. R. App. P. 41.3.
II. Sufficiency of the Evidence
In one issue, appellant contends that the evidence is legally insufficient to sustain the criminal trespass judgments against him because the State alleged that Rhodes owned the Property, but did not offer any evidence that Rhodes owned or rented the Property, or that he had a greater right to possession of the Property than appellant. Appellant argues that Rhodes was never asked if he owned the Property, and he did not testify that he owned or rented the Property. According to appellant, "[t]he only evidence before the jury was that Rhodes was there."
A. Standard of Review
When evaluating the legal sufficiency of the evidence to support a criminal conviction, we must view all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Under this standard, evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt. Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013).
Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Temple, 390 S.W.3d at 359. The jury is not permitted to draw conclusions based on speculation, but may draw reasonable inferences from facts as long as each is supported by the evidence presented at trial. Id. at 360. When the record presents conflicting inferences, a reviewing court presumes that the jury resolved the conflicts in favor of the verdict. Id. The jury, as the sole judge of the weight and credibility of the witnesses, is free to believe or disbelieve all or part of a witness's testimony. Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014).
B. Applicable Law
A person commits the offense of criminal trespass if he enters or remains on or in the property or habitation of another without effective consent and (1) had notice that the entry was forbidden, or (2) received notice to depart but failed to do so. See Tex. Penal Code § 30.05(a)(1), (d)(3)(A)(i); Salazar v. State, 284 S.W.3d 874, 876 (Tex. Crim. App. 2009). "Another" means "a person other than the actor." Tex. Penal Code § 1.07(a)(5). "Notice" may be conveyed by, among other things, "oral or written communication by the owner or someone with apparent authority to act for the owner"; "fencing or other enclosure obviously designed to exclude intruders"; or "a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden." See id. § 30.05(b)(2).
Because section 30.05(a) does not provide a culpable mental state, Penal Code section 6.02 requires the inclusion of a culpable mental state of intentionally, knowingly, or recklessly. See Tex. Penal Code § 6.02(b), (c); Holloway v. State, 583 S.W.2d 376, 377 (Tex. Crim. App. [Panel Op.] 1979).
The information in Cause No. 2C16-08918 alleged that on or about December 7, 2016, appellant:
did then and there intentionally and knowingly enter and remain on and in the property of THOMAS RHODES, the owner thereof, without said owner's effective consent, and the defendant entered with notice that entry was forbidden and failed and refused to depart after being told to leave[.]Similarly, the information in Cause No. 2C16-08919 alleged that on or about December 7, 2016, appellant:
did then and there intentionally and knowingly enter and remain in the habitation of THOMAS RHODES, the owner thereof, without said owner's effective consent, and the defendant entered with notice that entry was forbidden and failed and refused to depart after being told to leave[.]The trial court's charges for each alleged offense substantially tracked the language of the charging instruments. The charges also defined "owner" as "a person who has title to the property, possession of the property, or a greater right to possession of the property than the person charged."
C. Application of Law to Facts
Appellant argues that because the State alleges ownership of the property, the State assumed the burden of proving that allegation, citing to Langston v. State, 855 S.W.2d 718 (Tex. Crim. App. 1993). In Langston, the court noted that although "ownership is not an element of criminal trespass," if the State unnecessarily alleges ownership of the property, then the State assumes the burden of proving that allegation. See id. at 721; see also Young v. State, 976 S.W.2d 771, 773 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd) (citing Langston, 855 S.W.2d at 721).
In response, the State points to Arnold v. State, decided the same year as Langston, in which the Court of Criminal Appeals held that the definition of "owner" in Texas Penal Code section 1.07 applies in criminal trespass cases in which the State alleges ownership. See 867 S.W.2d 378, 379 (Tex. Crim. App. 1993) (citing to earlier codification of definitions). The Penal Code defines "owner" to mean a person who (1) has title to the property, (2) possession of the property, whether lawful or not, or (3) a greater right to possession of the property than the actor. See Tex. Penal Code § 1.07(a)(35)(A). Thus, the State argues, ownership may be established by proof beyond a reasonable doubt that Rhodes has a greater right to possession of the Property than appellant. See Arnold, 867 S.W.2d at 379; see also Langston, 855 S.W.2d at 721 n.7.
Since Arnold and Langston were decided, the Court of Criminal Appeals has held in Malik v. State that "the sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case." 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Malik instructs that such a charge "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. (emphasis added). More recently, in Gharbi v. State, the Court of Criminal Appeals held that an allegation in an information that is not a statutory element or "an integral part of an essential element of the offense" could be disregarded for evidentiary sufficiency purposes. See 131 S.W.3d 481, 483 (Tex. Crim. App. 2003) (citations omitted).
Neither the State nor the appellant addresses whether the application of the hypothetically correct jury charge alters the holdings of Langston and Arnold or otherwise affects our review of the sufficiency of the evidence. We need not decide the issue, however, because even assuming that the State was required to prove ownership, the evidence is legally sufficient to enable a rational jury to find beyond a reasonable doubt that Rhodes had a greater right to possession of the Property than appellant. See Anthony v. State, 209 S.W.3d 296, 309 & n.11 (Tex. App.—Texarkana 2006, no pet.) (declining to decide impact, if any, of hypothetically correct jury charge doctrine on holdings of Langston and Arnold when evidence was sufficient to prove ownership).
We note that at least one court has held in a juvenile adjudication that the State was not required to prove an allegation of ownership because "ownership is not an element of the offense of trespass." See In re J.V., No. 04-12-00707-CV, 2013 WL 2145779, at *2 (Tex. App.—San Antonio May 15, 2013, no pet.) (mem. op.).
As noted above, one of the police officers who was dispatched to the Property testified that he spoke with Rhodes and filled out a field interview card memorializing their discussion. The card, which was admitted into evidence, reflected that that appellant was "involved in [a] disturbance" at the Property and was "[b]anned by homeowner Thomas Rhodes." The officer also referred to Rhodes as "the homeowner" during his testimony. A second officer who accompanied that officer testified about being called out to "Mr. Rhodes' residence." A third officer, who was called to the Property when appellant was found inside the house at 8:30 a.m., similarly identified Rhodes as "the homeowner."
Appellant's own testimony provides additional evidence from which a jury could infer that Rhodes had a greater right to possession of the Property than appellant. In his testimony, appellant explained that "the parole officer has to have a current address and the approval of the homeowner before they can release [a] person to that address." To satisfy this requirement, appellant testified that shortly before his release from jail, he "did get approval from Mr. Rhodes that it was okay for [him] to come back to the residence of 306 North 4th Street." Later in his testimony, appellant again explained that "in order for me to be released from this place and be at the address of 306 North 4th Street, there has to have been a conversation from my parole officer and the homeowner, Thomas Rhodes, and an approval from Mr. Rhodes of me coming to be a resident at his address." Appellant's testimony establishes his understanding that Rhodes was "the homeowner" and that appellant was required to obtain Rhodes's permission before he could stay at the Property. Moreover, appellant confirmed to a police officer that he had no key to the house on the Property.
Based on the evidence presented at trial, a rational jury could have found beyond a reasonable doubt that Rhodes had title to the Property, possession of the Property, or a greater right to possession of the Property than appellant and was thus the "owner" of the Property. See Tex. Penal Code § 1.07(a)(35)(A). The evidence is also legally sufficient to support the jury's findings that appellant entered or remained on or in the property and habitation of another without effective consent, and had notice that entry was forbidden or received notice to depart but failed to do so. See id. § 30.05(a)(1), (d)(3)(A)(i). We therefore overrule appellant's issue.
III. CONCLUSION
We overrule appellant's issue and affirm the trial court's judgments.
/s/ Ken Wise
Justice Panel consists of Justices Boyce, Donovan, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).