Davis v. State, 08-89-00229-CR

Decision Date17 October 1990
Docket NumberNo. 08-89-00229-CR,08-89-00229-CR
Citation799 S.W.2d 398
PartiesBobby Pat DAVIS, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Appeals

Jeff Spain, Odessa, for appellant.

Tracey Bright, County Atty., Odessa, for appellee.

Before OSBORN, C.J., and WOODARD and KOEHLER, JJ.

OPINION

KOEHLER, Justice.

This is an appeal from a conviction for the offense of criminal trespass. The court assessed punishment at six months' probation and a $200.00 fine. We affirm.

In Point of Error No. One, the Appellant asserts that the court erred in overruling his motion for directed verdict and motion for new trial because the State failed to introduce evidence that the Appellant was not an owner or person having a right to possession of the trespassed apartment. The Appellant was charged with criminal trespass for entering the apartment of his estranged wife during her absence. She left the marital abode in September 1988, and obtained an apartment in her own name. The security deposit and first month's rent were paid with checks drawn on the couple's joint account containing community funds. Subsequent rental payments were made from a newly opened account of the wife alone. A divorce petition had been filed, but no decree entered. No restraining orders, injunctions or protective orders had been sought or issued by the divorce court. While the complainant was out of town, the Appellant entered the apartment using a key that he had taken from her car while it was parked at the school parking lot where she worked. He did not have her permission to obtain this key. The complainant testified that the Appellant did not have her permission to enter the apartment; in fact, she would not converse with him on the telephone. On the evening of December 26, 1988, some neighbors observed the Appellant enter the apartment and they notified a security guard who, in turn, called the police. When the police entered the apartment, the Appellant was found hiding in a closet. He related to the police and at trial that he was seeking evidence of his wife's cohabitation with a boyfriend. The Appellant testified that he did not know that the divorce had been filed and he considered the apartment and its contents to be his community property as the furniture came from the marital dwelling. He stated that on the night in question, he parked his car well away from the apartment so that nobody would know he was there. The couple had separated before on a prior occasion and the complainant had moved into another apartment. The Appellant testified, "She had told me before at the other apartment that she didn't want me around at all and she told me not to go around the apartment and so I did not."

Tex.Penal Code Ann. § 30.05 (Vernon 1989) provides that one commits the offense of criminal trespass if he:

[E]nters or remains on property or in a building of another without effective consent and he:

(1) had notice that the entry was forbidden; or

(2) received notice to depart but failed to do so.

Notice is defined as "oral or written communication by the owner or someone with apparent authority to act for the owner;...."

Tex.Penal Code Ann. § 1.07(a)(24) (Vernon 1974) 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 Appellant contends that it is impossible for any of these three possible interpretations of an owner to be applicable in that the Appellant was an owner of the property pursuant to the State's community property laws.

A similar contention was made in Stanley v. State, 631 S.W.2d 751 (Tex.Crim.App.1982). In Stanley, the defendant was charged with burglary of a habitation with intent to commit the murder of his estranged wife who had been residing in a separate dwelling for several days. The defendant argued that his wife could not qualify as an owner as his wife had no greater right to possession of the habitation. The defendant further argued that, even if she was an owner, there was an implied consent because of the marital status. The Court of Criminal Appeals in Stanley rejected this reasoning and stated:

[W]e reject under the circumstances, appellant's claim that the marital relationship authorized him to break and enter the premises occupied by his estranged wife. His wife clearly had the greater right of possession and was an "owner." The couple had separated and she had filed for divorce, had moved from the home where she resided with the appellant, and had established another home for herself and her son. She had the right to refuse to consent. There was no implied consent to break and enter merely because of the marital status. 631 S.W.2d at 753.

We find that under the circumstances of the present case, the complainant was an owner and, as having a greater right to possession of the premises, had the right to refuse entry to the Appellant. The record is clear that the complainant had not wanted to communicate with the Appellant after she had established herself in the new residence. The prior understandings during the first estrangement coupled with the Appellant's surreptitious actions surrounding his entry and discovery in the apartment are circumstances militating against the Appellant's assertions. Point of Error No. One is overruled.

In Point of Error No. Two, the Appellant contends that the court erred in overruling Appellant's motion for directed verdict because the State failed to present evidence of an agreement modifying Appellant's ownership rights to the apartment. The Appellant points to various provisions in the Family Code which provide for parties to agree to convert the status of their marital property or to agree to alter the status of that property incident to a divorce. The Appellant maintains that the evidence established that the property within the apartment consisted of the mixed separate property of both spouses and their joint community property. The Appellant contends that this rendered the property subject to the joint management and control of both the Appellant and the complainant making it impossible for the...

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