Opinion
No. PD-1111-10.
Delivered: April 20, 2011. DO NOT PUBLISH.
On Appellant's Petition for Discretionary Review, appeal from the Fifth Court of Appeals, Dallas County.
PRICE, J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY and COCHRAN, JJ., joined. KELLER, P.J., filed a dissenting opinion.
OPINION
In this criminal trespass case, James Melton Frazier, the appellant, waived a jury trial and pleaded not guilty. After finding the appellant guilty, the trial court assessed his punishment at 210 days' confinement in the county jail, probated for twelve months. On appeal, the appellant argued that the evidence was legally and factually insufficient to support the finding of guilt. The Fifth Court of Appeals in Dallas affirmed the appellant's conviction in an unpublished opinion. We granted the appellant's petition for discretionary review in order to determine whether a person who co-owns a piece of property can ever be convicted for criminal trespass upon that property. We will affirm.
Frazier v. State, No. 05-10-00090-CR, 2010 WL 2978494 (Tex. App.-Dallas, decided July 30, 2010) (not designated for publication).
Background
The Stated charged the appellant by information with criminal trespass, in that he "did unlawfully then and there intentionally and knowingly enter and remain in the habitation of another, namely: CLAUDIA FRAZIER, hereinafter called complainant, without the effective consent of complainant, and the [appellant] had received notice to depart, to-wit: the complainant had by oral communications told the [appellant] to depart, and the [appellant] thereafter failed to depart." The complainant, Claudia Frazier, is the appellant's sister. She testified at trial that she has continuously lived alone in a house at 6225 Silvery Moon Drive since 1992, except when her sister lived there with her from 2001 to 2002. This is the house at which the appellant was alleged to have trespassed. Trial was before the court, the appellant having waived a jury trial. Claudia testified that around 10 p.m. on March 28, 2009, the appellant entered the house, used the bathroom, ate food from the kitchen, and went back into a bedroom and shut the door. Claudia called a neighbor to come stay with her in the house when the appellant arrived because she was afraid of him because he once threatened her with a knife. After the neighbor arrived, Claudia asked the appellant to leave, but he refused. Claudia then called the police. Dallas Police Officers Chien and Woodburn responded to a disturbance call at the house and spoke to Claudia. She told them that she owned the home and that her brother, the appellant, refused to leave. She asked the officers to remove him because, according to her, he had a history of becoming violent with her. Claudia explained to the officers that she and her siblings owned the house, but that she was the only one living there. The officers told Claudia that the appellant had just as much a right to live in the house as she did and that she would "have to take it up in civil court." According to Claudia, after the officers left the house, she ran after them and begged Chien to remove the appellant, but Chien replied that Claudia would have to speak with their supervisor, Sergeant Franklin, who was sitting in a patrol car outside the house. Claudia spoke with Franklin, and he went inside the house and asked the appellant to come outside. The appellant complied, telling the officers that Claudia took the house from everyone and would not let anyone stay there. He told them that he had been staying with friends for the past couple of weeks and used to have his own apartment but had been forced to leave it. The officers asked him for identification, and the appellant gave Franklin an ID listing an address different from the house and admitted to living at the address listed on the ID. Franklin asked the appellant to leave three times, but the appellant told the sergeant that he "wasn't going anyplace." When the appellant became agitated and continued to refuse to leave, Franklin warned the appellant that he either had to leave the house or go to jail. When the appellant refused to leave, he was arrested and taken to jail. The appellant also testified at trial. He stated that he knew that Claudia did not want him at the house, but he had no other place to go. He said that his mother bought the home in 1965, he grew up in the house, and he had last lived there in 2006. According to the appellant, a friend dropped him off at the house on March 28, 2009, and he went inside and watched television with Claudia and her neighbor, ate dinner, and then went to a back bedroom to sleep. Claudia came into the bedroom a short time later and told him that he had to leave, and the next thing he knew police officers arrived at the house. After the officers were told that several people owned the house, they notified Claudia that it was a civil matter, and she would need to take this up with a civil attorney. The officers asked Claudia for proof that it was her house, and when she went back inside to "get some papers," the officers left. After Claudia came back into the bedroom and tried to get the appellant to leave, a third officer came into the room and told the appellant to go outside with him. When the appellant went outside, the officer told him that he had to either leave or go to jail. After the appellant told the officer that he was not leaving the house, the officer asked him to turn around and put his hands behind his back, which he did, and then he was taken to the police car. The appellant contended that the officer never asked him for any ID until he was booked into the Lew Sterrett Justice Center. The appellant also introduced into evidence an affidavit of heirship. This document purported to show the "Roylean Frazier estate" passing to her six children, which included Claudia Frazier and the appellant, after her death in 1999. However, in answer to the question, "Did the decedent own any real estate in this State?", the heirship affidavit answered "no." Claudia's address is listed on the affidavit as 6225 Silvery Moon Drive, the house at issue in this case, and the appellant's address is listed as 8004 West Virginia, Apt. 1407. After hearing the parties' closing arguments, the trial judge, based on the statement in the affidavit of heirship that the decedent did not own any real estate in Texas, announced that he found that neither Claudia nor the appellant was the title owner of the house. However, the trial court did note that Claudia had lived there longer and had a greater right to possession of the house than did the appellant. On that basis, he found the appellant guilty of criminal trespass.In the Court of Appeals
On appeal, the appellant contended that the evidence was legally and factually insufficient to support a finding of guilt. The State was required to prove beyond a reasonable doubt that the appellant intentionally and knowingly entered and remained in the habitation of another without effective consent, and that the appellant received notice to depart but failed to do so. Because the information alleged, as per the statutory language, that the appellant remained on the property "of another" rather than the property "owned by" another, the court of appeals observed, the State was not required to show the complainant's ownership of the property. The appellant argued that the evidence was insufficient to prove he entered the property "of another," which is an essential element of the offense, because he was a legal heir of his mother's house and owns the property as a co-tenant and thus cannot be liable in trespass. The court of appeals, in an unpublished opinion, stated that, in a criminal trespass case, ownership may be established by proving beyond a reasonable doubt that the complainant had a greater right to possession of the property than the defendant. "Possession," the court of appeals observed, means actual care, custody, control, or management. The court of appeals further observed that as the fact finder, it was the trial judge's role to reconcile conflicts of evidence. Based on the evidence, the court of appeals concluded, the trial court could rationally find that Claudia was in actual "care, custody, control, or management" of the house and had a greater right to possession of the house than did the appellant. Concluding that the evidence supported the trial court's finding that the complainant had a greater right to possession of the house, the court of appeals held that the evidence was sufficient to support the appellant's conviction and affirmed the trial court's judgment.Analysis
We initially granted this petition for discretionary review to decide the issue, as framed by the appellant, of whether a person who co-owns a piece of property as a tenant in common may be convicted of trespassing upon that property — an issue that has never been settled by this Court. However, upon further review, we find that the issue upon which we granted review is not presented, given the particular procedural posture of this case, as we shall explain. Because the issue is not presented, the court of appeals did not err in its opinion by failing to address it. The appellant argues that he, along with his siblings, including Claudia Frazier, own the house as tenants in common and therefore have equal possessory rights to the house. He predicates this assertion of co-tenancy, inter alia, upon the affidavit of heirship which lists himself, Claudia Frazier, and their other siblings as heirs to the estate of Roylean Frazier, their mother, which included the house at which the appellant was found to have trespassed. He contends that since neither Claudia Frazier nor any other co-owner could be "another" within the meaning of the criminal trespass statute because all owned the property as tenants in common with an equal right of possession, the evidence was insufficient to support the trial court's finding of guilt. The appellant argues that the court of appeals, in rendering its decision, failed to address the issue he raised on appeal of whether one co-tenant may be excluded by another so as to justify a conviction for criminal trespass. However, the question of co-tenancy is not an issue in this case, and it was not necessary for the court of appeals to address this question in order to affirm the appellant's conviction. The trial court heard conflicting evidence on the issue of whether the appellant and Claudia Frazier owned the house as tenants in common. The appellant testified that the house had belonged to his mother, and when she died, he inherited the house along with his siblings. But the affidavit of heirship contradicts the appellant's testimony because it shows that the appellant's mother did not own any real estate in Texas at the time of her death. The trial judge weighed all of the evidence at trial and, as fact finder in the trial before the court, it was within his prerogative to find that neither Claudia nor the appellant owned the house based on the assertion in the affidavit of heirship that Roylean Frazier did not own any real estate at her death. Because the trial court found that neither the appellant nor Claudia Frazier had an ownership interest in the house, and the record supports this finding, the court of appeals did not have to address the appellant's issue of whether a co-tenant may be convicted of trespass upon property to which he claims an equal right of possession. We can assume the court of appeals did not address the appellant's co-tenancy argument because it rightly deferred to the trial court's resolution of the fact issue whether either the appellant or Claudia Frazier owned the house. Because co-tenancy is not an issue in this case, the court of appeals was correct to conclude that whether the appellant is guilty of criminal trespass boils down to who had a greater right to possession of the house. Since the appellant does not challenge this controlling aspect of the court of appeals's opinion discussing who had the greater possessory interest in the house, we have no occasion to address it on discretionary review. Without further ado, we affirm the judgment of the court of appeals.We granted review in this case to consider whether a co-owner of property may be convicted of criminal trespass for remaining on that property after another co-owner tells him to leave. Because the evidence does not establish beyond a reasonable doubt that appellant was on the property of "another," or that he lacked effective consent to be on the property, I would render a judgment of acquittal. A person is guilty of criminal trespass if he "enters or remains on or in property of another, including residential land . . . without effective consent [and]: (1) has notice that the entry was forbidden; or (2) received notice to depart but failed to do so." The term "another" means "a person other than the actor." The trespass statute therefore proscribes the conduct of entering or remaining on "the property of a person other than the actor." Although the Penal Code defines "owner" as a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor," the trespass statute makes no reference to ownership, and we have held that ownership is not an element of criminal trespass. Ownership might nevertheless be alleged in a charging instrument in order to describe in what way the property is that of "another." But what happens if two people are title owners to a parcel of land and each tells the other to depart, with each refusing depart? Are both guilty of criminal trespass? On the other hand, if a person who has no right to possession of or interest in the land were to fence it in and occupy it, would the rightful owner commit a trespass by entering the property without the usurper's permission, because "owner" includes "one who has possession of the property, whether lawful or not?" In Boykin v. State, we explained that we give effect to the plain meaning of statutory language unless the language is ambiguous or the plain meaning leads to absurd results that the legislature could not possibly have intended. I do not believe the plain meaning would make both owners guilty in the first hypothetical, or the rightful owner guilty in the second, but if it did, those would be absurd results. In conducting a plain meaning analysis, we read the statutory language in context and construe the words according to the rules of grammar and common usage. The word "another" is used in conjunction with the phrase "without effective consent." So a person commits trespass by being on the property of "another" only if he lacks effective consent from someone who has the authority to give it. In Kinsey, we specifically reserved the question of whether a defendant can trespass on property to which he has lesser title than the complainant. In so saying, we seem to have implied that a trespass would not occur if the defendant had equal or greater title than the complainant. I am unaware of any cases construing the current trespass statute as it applies to property with multiple owners, but some very old cases have addressed the issue of trespass with respect to multiple owners in various contexts. In Davidson v. Wallingford, the Texas Supreme Court stated that, in order to evict a defendant from a parcel of land, a plaintiff who was a tenant in common (that is, one of multiple owners) must show not only his ownership interest, "but also that the defendant has no title to any interest." In McCuen v. State, we held that a defendant could not be convicted of unlawfully breaking a fence when the fence was on property owned in common between himself and the complainant. On the other hand, our predecessor, the Court of Appeals, held in Zallner v. State that a landlord can be liable for trespass on property that he has leased to a tenant because the landlord has no right of entry without the tenant's permission unless such right had been specially reserved. From a review these cases and the current trespass statute, I conclude that owners who have an equal interest in the property cannot be criminally liable for trespass unless one of the owners has been given the exclusive right to possess the property, by agreement or otherwise, and a different owner has infringed on that exclusive right. In other words, all owners of equal status have the ability to effectively consent to their own entry onto the property unless, by agreement or otherwise, the right of entry has been vested exclusively in only one or some of the owners. I turn now to whether the evidence in the present case is sufficient to support appellant's conviction. Under Jackson v. Virginia, evidence is legally sufficient to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." In a legal sufficiency review, the reviewing court must consider all of the evidence. We have recently emphasized the need for a "rigorous and proper" application of the Jackson standard. Appellant's position is that the evidence shows that the property on which he was accused of trespassing was the family home, formerly owned by his late mother Roylean. He contends that all of the children — including himself and his sister Claudia, the complainant — now own this land equally and that he had as much right to be on the property as Claudia did. The affidavit of heirship that appellant introduced into evidence was signed by Claudia. It is a form with numerous questions, including the question, "Did the decedent own any real estate in this State." Following this question, the answer "no" is circled. The trial judge concluded that this meant that Roylean did not own the property, and therefore, "there's nothing to be inherited." If this affidavit and Claudia's history of occupying the property were the only evidence relating to the ownership of the property, then I might conclude that the evidence is sufficient. But a review of all of the evidence shows otherwise. At trial, Claudia herself testified without equivocation that all of Roylean's children were record owners of the property:
[PROSECUTOR]: How did you come to own the residence . . . ?
[CLAUDIA]: My sister had filled out some papers because the city was gonna take the house because of back taxes. And she had the papers filled out, because some — I'm on disability.
Id., § 1.07(a)(5).
Id., § 1.07(a)(35).
Langston v. State, 855 S.W.2d 718, 721 (Tex. Crim. App. 1993).
State v. Kinsey, 861 S.W.2d 383, 384-85 (Tex. Crim. App. 1993).
818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2010) (citing TEX. GOV'T. CODE § 311.011(a)).
861 S.W.2d at 385 (emphasis added, bracketed material substituted for original to change plural terms to singular).
88 Tex. 619, 625, 32 S.W. 1030, 1033 (1895).
43 Tex. Crim. 612, 68 S.W. 180 (1902).
15 Tex. Ct. App. 23, 24-25 (1883).
For example, the exclusive right of possession could be vested by a temporary court order in a divorce or a partition proceeding.
443 U.S. 307, 319 (1979) (emphasis in original).
Id.; Brooks v. State, 323 S.W.3d 893, 916 (Tex. Crim. App. 2010).
Brooks, 323 S.W.3d at 906 n. 25.
* * *
[PROSECUTOR]: So who are the record owners of the residence?
[CLAUDIA]: Delois Frazier, James Frazier, Belinda McBee, Julius Frazier, and Charles Ray Frazier.
[PROSECUTOR]: Are these all your mother's children?
[CLAUDIA]:. Yes, ma'am.
* * *
[DEFENSE COUNSEL]: And you mentioned that there was multiple owners of the property?
[CLAUDIA]: The family, the whole family.
[DEFENSE COUNSEL]: The family, including Mr. James Frazier?
[CLAUDIA]: Yes, sir.
* * *
[PROSECUTOR]: It is not your contention, Ms. Frazier, and just — can you please explain to the Court that you are not debating that he has a right to the property, am I correct? Okay. You're not saying that he is not one of the people that inherited the house from your mom?
[CLAUDIA]: Well, it's — it's the family house.
[PROSECUTOR]: Right. Right. And so you're not saying that he has no right to be there?
[CLAUDIA]: I'm not saying that he don't — he has all the rights to be there, but he — he has all the rights to be there. They come there for birthdays. They come there for holidays. They come there for any day, just because days. But it's fine. But when James come the police is on their way. Because James want to draw knife, he want to just pick up anything and just erupt everything. It's not only with me.The police officers who testified at trial did not specifically testify that Claudia had told them that appellant was a co-owner of the property, but their testimony and their conduct that day was consistent with her having so told them. Officer Chien testified that Claudia claimed to be the owner of the house; the officer could not recall specifically if she asked appellant if he was a co-owner. Sergeant Reginald Franklin testified that he stayed in his vehicle while his subordinates, Officers Chien and Woodburn, handled the situation at the residence. When the officers came outside, Sergeant Franklin asked what was going on. Sergeant Franklin testified that the officers told him "there was a guy that wouldn't leave." He said that the officers "were trying to I guess figure out if they could make him leave or what the situation was, and they were about to leave." Sergeant Franklin's testimony that the officers were about to leave is consistent with Claudia's testimony that the officers were unwilling to do anything, that they told her that the incident was a civil matter, that they told her that appellant had "just as much right to live in that house as I did," and that one of the officers referred her to their Sergeant when she again pleaded with them to remove appellant from the house. As the officers were preparing to leave, Claudia approached Sergeant Franklin's vehicle and explained that appellant would not leave and that she was afraid of him. At that point, Sergeant Franklin investigated the matter further. During this investigation, appellant said that the house "was his mother's house" and "that he had a claim to it." Sergeant Franklin told appellant that if Claudia lived there and appellant did not, and Claudia wanted appellant to leave, then appellant was trespassing, regardless of his "monetary or possessionary situation with the house." When asked if he ascertained whether appellant had an ownership interest in the house, Sergeant Franklin responded negatively and said, "That's not our job." In light of all the testimony, the affidavit of heirship is simply not sufficient evidence to show beyond a reasonable doubt that appellant does not have an ownership interest in the property. The affidavit of heirship makes no statement about who owned the property at the time appellant refused to leave. The affidavit simply states that Roylean did not own any real property at the time of her death. That statement is not inconsistent with appellant owning an interest in the property. Nor is the affidavit inconsistent with appellant and his siblings obtaining title to the property from Roylean before or at the time of her death. Roylean could have transferred it to them before death, or she could have given them a future interest that would have caused full ownership of the property to vest automatically at death, so that there would be no real property in her estate. So, even if believed, the affidavit is not inconsistent with Claudia's testimony that the home was the family home and all of the children owned it together. The affidavit is inconsistent with the notion that the children inherited the property. Claudia's testimony is consistent with the property passing to the children by inheritance, but her testimony is also consistent with the property passing to the children by an instrument that conveyed a present or future interest in the property. Appellant's testimony, taken as a whole, is likewise consistent with either scenario. But even if Claudia and appellant had both testified that they obtained the property through inheritance, the affidavit of heirship is not affirmative evidence that they did not own the property; at best, it negates the idea that inheritance is the method by which the property passed. Regardless, Claudia's testimony was clear that all of Roylean's children — including appellant — owned the property. A rational jury could not accept her testimony that she had the right to be on the property while ignoring her testimony of where that right came from — ownership acquired from her mother — and who else also had ownership in the property. In fact, the conduct of the police suggests that either she told them that appellant was a co-owner of the property, or that appellant said so and she did not contradict him. Even the prosecutor did not dispute appellant's ownership interest but argued that he was a trespasser nevertheless: "There's been no debate, and no one is trying to force the defendant off of the property or cheat him out of his ownership interest in the house. However, the possessory interest is lying solely in the — in Ms. Frazier, because the house was left to them all." Later, the prosecutor continued, "At this time it's not Ms. Frazier's contention today, nor is it then, that he could never come to the residence. However, she lives there apparently, and he did not have the right to come there on that day." That leaves only the question of whether there is evidence that Claudia was granted the right to sole possession of the property by agreement or otherwise, and appellant infringed on that right to sole possession. Despite the prosecutor's suggestion to the contrary in argument, there was no evidence of an agreement or anything else that would confer upon Claudia a right to sole possession of the property. There was evidence at trial that appellant was a troublemaker and that Claudia had reason to be afraid of him. But as far as the law of criminal trespass is concerned, even a troublemaker has the right to use his own property unless the exclusive right to use that property has been assigned to someone else. I would hold that the evidence is legally insufficient to establish that appellant committed the offense of criminal trespass. I respectfully dissent.