Teamer v. State

• Decision Date: 08 April 2014
• Docket Number: No. 14–12–00760–CR.,14–12–00760–CR.
• Citation: 429 S.W.3d 164
• Parties: Corey Jules TEAMER, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

429 S.W.3d 164

Corey Jules TEAMER, Appellant

v.The STATE of Texas, Appellee.

No. 14–12–00760–CR.

Court of Appeals of Texas,

Houston (14th Dist.).

April 8, 2014.

Lance Craig Hamm, Houston, for Appellant.

Heather Hudson, Houston, for the State.

Panel consists of Justices McCALLY, BUSBY, and SIMMONS.^*

OPINION

J. BRETT BUSBY, Justice.

Appellant Corey Jules Teamer appeals his conviction for criminal trespass. In five issues, which we consolidate into two, appellant challenges (1) the sufficiency of the evidence to convict him under a hypothetically correct jury charge, and (2) the propriety and harmfulness of the trial court's sua sponte amendment of the jury charge after the jury had begun deliberating. We hold that when a criminal statute allows an element of an offense to be proven by alternative methods, more than one of which is alleged in the charging instrument, the hypothetically correct jury charge requires the State to prove only one of the alleged alternatives beyond a reasonable doubt. Under this standard, we conclude the evidence is sufficient to support appellant's conviction. We also conclude that amending the charge was not reversible error, and we therefore affirm.

Background

Matthew James Short was working at Houston Premium Outlets as a security guard when he received a phone call from the manager of one of the outlet stores, True Religion. The phone call led Short to begin looking throughout the mall for three men described by the store manager. Short, along with another security guard, approached one of the men and asked him to return to the store with Short. Upon their return, the manager of the store identified the man Short was escorting as one of the three men she had described on the phone.

Short and the man he was escorting were met at the store by appellant and a third man. According to Short, appellant and the third man were the other two people described by the manager. Short testified at appellant's trial that a belt was returned to the store. Short explained that appellant “was getting aggressive and angry and cursing” at the manager, so Short told the three men that they “needed to leave the property.”

Short then informed the men that if they did not leave the property he would contact the Harris County Sheriff's Office. Instead, the men began to walk further into the outdoor mall. Short called the Sheriff's department and followed the men at a distance. Short testified that two of the men “exited the mall outside the gates and were walking down the driveway” but that appellant remained inside the gates and sat on a bench.

Deputy Tribbett of the Harris County Sheriff's Office testified that he arrived on the scene and saw appellant and Short “standing on the curb area.” Short testified that appellant, seeing a patrol car pulling up, began walking in towards the mall in the direction of another parking lot. Deputy Tribbett testified that when he made contact with the appellant, appellant “made his way from inside the mall area to outside the area.” Deputy Tribbett testified that he did not know to what location appellant was headed, but that appellant was standing on the curb and facing the parking lot area.

Short told Deputy Tribbett about his conversation with the appellant, including the fact that he had already told appellant to leave several times. Deputy Tribbett advised appellant that he would be arrested for criminal trespass if he did not leave the property after having been told to do so several times. According to Deputy Tribbett, appellant “just stood there on his cell phone,” so Deputy Tribbett arrested him.

Appellant was charged with criminal trespass and tried before a jury. SeeTex. Penal Code Ann. § 30.05(a) (West Supp.2013). The criminal information alleged that appellant “did then and there unlawfully intentionally and knowingly enter and remain on the property and in the building of another, namely, Matthew James Short, without the effective consent of Matthew James Short, after having received notice to depart and failing to do so.” (Emphasis added).

The charge was originally submitted to the jury with no objection from either side. The abstract portion of the charge framed the offense in the disjunctive, informing the jury that a “person commits an offense if he or she intentionally or knowingly enters or remains on property or in a building of another without effective consent, and the person received notice to depart but failed to do so.” (Emphasis added).

In contrast, the application paragraph of the charge directed the jury to find the defendant guilty if it believed that he “did then and there unlawfully intentionally and knowingly enter and remain on the property and in a building of another, namely, Matthew James Short, without the effective consent of Matthew James Short, after having received notice to depart and failing to do so.” (Emphasis added). The application paragraph thus framed the offense in the conjunctive.

After the jury began deliberating, but before delivering its verdict, the trial court announced that it had made an error and was amending the application section of the charge, “changing the ‘and's to ‘or's which [is] what it's supposed to be.” The court informed the jury that it “noticed that something was incorrect in the application paragraph.” The trial court instructed the jury that “all the ‘ands' are supposed to be changed to ‘or's” and that the bottom (application) part should read “the property or building of another” just as the top (abstract) portion did. (Emphasis added). The court informed the jury that it would “initial the changes where [it] made an error.” The court crossed out only two of the “and” s, however, replacing them with “or” s. The revised version directed the jury to find defendant guilty if he “did then or there unlawfully intentionally and knowingly enter or remain on the property and in a building of another, namely, Matthew James Short, without the effective consent of Matthew James Short, after having received notice to depart and failing to do so.” (Emphasis added).

Appellant objected, noting that the jury had been deliberating on the original charge for approximately ten minutes. Appellant argued that if the court was going to instruct the jury “on a different part of the law,” then he was “entitled to reargue some things.” The court overruled appellant's objection and his motion for a mistrial, but offered appellant's counsel “all the time [he] want[ed] to reargue.” The court then amended the charge in the jury's presence, and appellant “further[ed]” his objection for the record, clarifying his position that it was “a variance issue.” The court overruled the clarified objection, and appellant's counsel then presented further argument to the jury.

The jury found appellant guilty of criminal trespass under the amended charge, and this appeal followed.

Analysis

I. The State introduced sufficient evidence to support appellant's criminal trespass conviction under a hypothetically correct jury charge.

In his first three issues, which we consolidate into one, appellant argues that the evidence presented at trial is legally insufficient to support his conviction because the State's information conjunctively alleged alternative methods of proving certain elements of the offense, yet the State did not prove each alternative. We hold the sufficiency of the evidence is properly measured against a disjunctive framing of the offense, and that the State provided sufficient evidence to prove criminal trespass beyond a reasonable doubt based on allegations appearing in the information. Accordingly, there was no variance between the information and the proof offered at trial.

A. Standard of review and applicable law

On appeal, we must determine whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Matlock v. State, 392 S.W.3d 662, 667 (Tex.Crim.App.2013); West v. State, 406 S.W.3d 748, 756 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd). In doing so, we defer to the jury's fair reconciliation and resolution of conflicts of the evidence, drawing all reasonable inferences in favor of the verdict. West, 406 S.W.3d at 756.

Although previously we measured evidentiary sufficiency against allegations in the application paragraph of the charge as submitted, we now look to the “hypothetically correct jury charge” to identify the essential elements for measuring sufficiency. Gollihar v. State, 46 S.W.3d 243, 252 (Tex.Crim.App.2001). The hypothetically correct jury charge “accurately sets out the law, is authorized by the [charging instrument], 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 on trial.” Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). Our reliance on the hypothetically correct jury charge “ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted.” Id.

The hypothetically correct charge need not mirror all conjunctive language from the charging instrument. See Gollihar, 46 S.W.3d at 253 (“The Court did not state that the hypothetically correct charge was required to track exactly all of the allegations in the indictment ....”); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991) (“[A]lthough the indictment may allege the differing methods of committing the offense in the conjunctive, it is proper for the jury to be charged in the disjunctive.”). The State generally is not obliged to plead one specific means of committing an offense. See Geick v. State, 349 S.W.3d 542, 547 (Tex.Crim.App.2011). If the State elects to allege only certain of the available statutory alternatives...