Samuel Earl Preston v. State ( 2004 )

Affirmed and Opinion filed May 11, 2004

Affirmed and Opinion filed May 11, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00037-CR

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SAMUEL EARL PRESTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. Six

Harris County, Texas

Trial Court Cause No. 1143960

O P I N I O N

Appellant, Samuel Earl Preston, appeals from his conviction for misdemeanor criminal trespass.  See Tex. Pen. Code Ann. ' 30.05(a) (Vernon 2003).  After a jury found appellant guilty, the trial court sentenced him to thirty days= incarceration, probated for nine months, and a $300 fine. On appeal, appellant attacks the legal and factual sufficiency of the evidence to support the jury=s verdict.  We affirm.

Background

Appellant was charged with trespassing on the property of Rickie Roberts on or about November 10, 2002.^[1]  At trial, the State presented evidence that appellant entered and remained on real property titled to the Community Baptist Church (Athe Church@) despite being warned not to enter and being told to leave. Roberts testified that he is a trustee of the Church, which is a nonprofit corporation.  Appellant, at one time, had served as pastor of the Church.

In April 2002, the Church members selected a new board of trustees, which included Roberts.  Roberts testified that the board took care of the internal affairs of the Church, including hiring a pastor, paying the bills, and ensuring upkeep of the property. He further stated that after he became a trustee he was given a set of keys to the church building and the responsibility for making sure the building was locked.

Later in April 2002, the Church members voted to dismiss appellant as pastor. The board of trustees drafted a dismissal letter and had it sent to appellant.  The letter stated appellant was welcome to worship with the congregation during regular service hours.  Subsequently, the board decided to have a trespass affidavit filed against appellant, and Roberts signed the affidavit and filed it with the City of Houston.^[2]

On November 10, 2002, appellant entered the church building during Sunday services. Roberts testified that he tried to warn appellant that he was not supposed to be there, and he attempted to stop appellant from entering the building.  James Alfred, chairman of the board of trustees, testified that he approached appellant, informed him of the trespass affidavit, showed him a copy of it, and told him that if he did not leave the premises the police would be called to remove him.  Nonetheless, appellant entered the building and sat in the pastor=s seat behind the pulpit.

Officer Marte McDowell of the Houston Police Department testified that he was called to the Church property on November 10, 2002, at which time Roberts and Alfred showed him a copy of the trespass affidavit.  McDowell then contacted his supervisor, Sergeant R. C. Mitchison, who arrived on the scene, as well.  The officers approached appellant, Sargeant Mitchison informed him of the trespass affidavit and asked him to leave, appellant refused, and the officers arrested him.

Analysis

In analyzing appellant=s legal and factual sufficiency claims, we utilize the normal standards of review.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (legal sufficiency standards); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency standards).

In his first two issues, appellant contends the evidence is legally and factually insufficient to prove that Rickie Roberts was an owner of the property. Specifically, appellant argues that (1) there is no evidence in the record to show that a quorum of trustees attended the meeting at which the trustees authorized Roberts to file the trespass affidavit, and (2) there was no evidence to show that a majority of the trustees present at the meeting voted to so authorize Roberts to file the affidavit, citing Tex. Rev. Civ. Stat. Ann. art. 1396-2.17(A), (C) (Vernon 2003) (including provisions governing voting procedures for non-profit corporations= boards of directors).

Appellant=s arguments, however, improperly expand the requirements for proof of ownership under the Texas Penal Code.  The Penal Code defines Aowner@ as a person who Ahas title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.@  Tex. Pen. Code Ann. ' 1.07(35) (Vernon Supp. 2004).  There is no requirement that the person alleged to be the owner in a trespass action actually have title to the property, or even specific authority from the title holder, so long as that person has a greater right to possession than the defendant.  See Arnold v. State, 867 S.W.2d 378, 379 (Tex. Crim. App. 1993); see also Bader v. State, 15 S.W.3d 599, 606-08 (Tex. App.CAustin 2000, pet. ref=d) (holding security officers had greater right to possession of University of Texas campus than did defendant who was not a member of the faculty, staff, or student body and had been warned not to return).

Here, the evidence demonstrated that Roberts was a trustee of the Church, had been given a set of keys to the church, and had been given responsibility to lock the building.  In contrast, appellant had been dismissed as pastor of the Church, was involved in litigation with the Church, and had been warned to not enter the premises or told to leave by Alfred (chairman of the board of trustees), Roberts (a member of the board), and Sergeant Mitchison.  Clearly, Roberts had a greater right to possession of the property than did appellant.  Accordingly, we find the evidence was legally and factually sufficient to support the finding that Roberts was an owner of the property.  Appellants first two issues are overruled.^[3]

In his third and fourth issues, appellant contends the evidence is legally and factually insufficient to prove that the corporate owner had denied him effective consent to enter or remain on Church property.  Appellant specifically asserts that because the Church owned the property as a corporate entity, the State was required to show that the corporate entity denied him consent to enter.

However, the information and the jury charge state only that appellant did not have the effective consent of Roberts and do not mention the title holder to the property.  As explained above, the evidence is sufficient to demonstrate that Roberts was an owner under the Penal Code definition because he had a greater right to possession of the property than did appellant.  See Arnold, 867 S.W.2d at 379; Bader, 15 S.W.3d at 606-08.  Appellant does not cite any authority suggesting that the State must prove or disprove anything in relation to the owner of title when it demonstrates the alleged owner had a greater right to possession than did the defendant.^[4]  Nor have we discovered any such authority.^[5]  Accordingly, appellant=s third and fourth issues are overruled.

The trial court=s judgment is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Opinion filed May 11, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  The information contained two operative paragraphs: the first alleged appellant entered and remained on Roberts= property with notice that entry was forbidden, and the second alleged appellant remained on the property after being told to leave.  Both paragraphs further alleged appellant lacked Roberts= effective consent to be on the property.  The jury charge reflected these two paragraphs.

^[2]  At some point, civil litigation was filed regarding appellant=s dismissal as pastor.

^[3]  We note that Roberts= right to possession was further supported by the board=s authorization to file the trespass affidavit.  Although there was no specific evidence that a quorum was present or that a majority of those present voted to authorize Roberts= actions, it would have been an acceptable inference for the jury to draw from Roberts= testimony that the board authorized his action.  See Melton v. State, 120 S.W.3d 339, 342 (Tex. Crim. App. 2003) (A[the jury] maintains the power to draw reasonable inferences from basic facts to ultimate facts@).  If the board action was in reality not properly conducted (e.g., because of a lack of a quorum or majority vote), this would have been an issue for the defense to raise during cross-examination or through other evidence.

^[4]  Appellant cites only to section 1.07(35) of the Penal Code wherein an owner of property is defined as a person with title to the property.  However, as explained above, that section also permits the State to prove ownership by demonstrating Aa greater right to possession of the property than the actor.@  Here, as also discussed above, the evidence is sufficient to support the finding that Roberts had a greater right of possession of the property than did appellant, thus Roberts Aowned@ the property as defined under the Penal Code.

^[5]  Of course, nothing would have prevented appellant from attempting to prove that he had consent of the title owner and, thus, had an equal or greater right of possession than did Roberts.