Affirmed and Opinion filed July 16, 2019.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-18-00073-CR

                 DALE ANTHONY TATRO, JR., Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee

               On Appeal from the County Court at Law No 2
                            Bell County, Texas
                    Trial Court Cause No. 2C16-05680

                                   OPINION

      Appellant Dale Anthony Tatro, Jr. appeals his conviction for criminal
trespass. See Tex. Penal Code § 30.05. After a bench trial, the trial court found
appellant guilty as charged in the information and assessed punishment at
confinement in the Belton County jail for thirty days and a fine of $100. In one
issue, appellant contends the evidence is legally insufficient to support his
conviction. We affirm.
                                      BACKGROUND

       The evidence shows that police were called to a home in Harker Heights1 to
investigate a disturbance involving criminal trespass. When responding officer
Bruce Smith, Jr. arrived, he spoke with the complainant, Leanne Phillips. Phillips,
the owner of the home, told Smith that an individual was in the backyard who had
been asked to leave but refused to do so. Officer Smith found appellant in the
backyard of the home and appellant appeared intoxicated. After some resistance,
Smith placed appellant in handcuffs and took him into custody for criminal
trespass. During the booking process, appellant described his address as a location
in Kempner, Texas.

       Appellant, who was the boyfriend of Phillips’s daughter and the father of the
daughter’s three children, frequently stayed at the Phillips residence with Phillips,
her daughter, and the three children. Phillips stated that she did not mind appellant
staying at the home as long as he was not intoxicated. Phillips denied any oral or
written landlord-tenant agreement with appellant, but she allowed him to stay the
night “all the time,” keep clothes and toiletries at the house, and cook at the house.
Phillips’s daughter testified that she and appellant moved into the home with their
three children and that she and appellant gave Phillips money to help with the
utilities, though Phillips denied that appellant ever gave her any money. Phillips
gave her daughter a key to the home but denied giving appellant a key. Phillips
told appellant that he was not to come to the house if he was intoxicated and “he
knew that.” Phillips’s daughter testified that Phillips and appellant had a good
relationship “off and on,” and that Phillips and appellant fight when appellant is
drinking.
       1
         Harker Heights is located in Belton County, Texas. This case was transferred to this
court from the Third Court of Appeals by Texas Supreme Court Transfer Order issued January 9,
2018.

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      On the night in question, Phillips arrived home from work to find appellant,
in an intoxicated state, being dropped off at the house. Phillips went inside and
locked the door, telling her daughter that appellant was outside and intoxicated.
Phillips’s daughter testified that she had taken appellant to a friend’s house earlier
in the evening because he was drinking and getting on her nerves. She did not
expect appellant to come back to the house that evening. Phillips told appellant to
leave; in response, appellant told Phillips to “shut up.”      A few minutes later
appellant went in the backyard but did not leave the property. Phillips again asked
appellant to leave her property, but he responded with racial slurs and would not
leave. Phillips then called police, who took appellant into custody.

       The State charged appellant by information with criminal trespass.
Appellant waived a jury trial and entered a “not guilty” plea before the trial court.
The trial court found appellant guilty as charged and assessed punishment at thirty
days’ confinement in the county jail and a $100 fine. This appeal followed.

                                     ANALYSIS

      Appellant challenges his conviction in one issue.        Appellant argues the
evidence is legally insufficient to support the trial court’s judgment because
appellant was a tenant, not a guest, in the home and thus Phillips had no right to
ask him to leave. We conclude the evidence is legally sufficient.

I.    Standard of review and elements of criminal trespass

      When reviewing the sufficiency of the evidence to support a conviction, we
consider all the evidence in the light most favorable to the verdict to determine
whether, based on that evidence and the reasonable inferences therefrom, any
rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Temple v.


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State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Thompson v. State, 408
S.W.3d 614, 627 (Tex. App.—Austin 2013, no pet.). During a bench trial, the trial
court is the exclusive judge of the credibility of the witnesses and the weight to be
given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App.
1992). When conducting a legal-sufficiency review, we may not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the
factfinder. Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); see
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). “A court's
role on appeal is restricted to guarding against the rare occurrence when the
factfinder does not act rationally.” Arroyo, 559 S.W.3d at 487.

      A person commits the offense of criminal trespass if the person enters or
remains on property of another, without effective consent, and the person had
notice that the entry was forbidden or received notice to depart but failed to do so.
Tex. Penal Code § 30.05(a)(1), (2). The State alleged that appellant intentionally
and knowingly entered and remained on and in the property of Phillips, the owner,
without the owner’s effective consent, and that appellant entered with notice that
entry was forbidden and failed and refused to depart after being told to leave.

II.   Legally sufficient evidence supports appellant’s conviction.

      The evidence showed that appellant entered and remained on Phillips’s
property, that appellant had notice that entry was forbidden whenever he was in an
intoxicated state, and that appellant received notice to depart from Phillips’s
property but failed to do so. Phillips’s testimony shows that appellant remained on
the property without her effective consent. The record contains no evidence that
the property in question was the property of appellant, though appellant claims he
had the right to remain on the property.

      Appellant’s legal-sufficiency challenge argument is premised upon his claim
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that he was a tenant of Phillips and thus Phillips had no authority to demand that he
leave. Appellant essentially argues that he had Phillips’ effective consent to be on
the premises by virtue of the claimed tenancy.

       In resolving appellant’s sufficiency challenge, we must determine whether
he was a “tenant.” The Penal Code does not define the term. The Property Code
defines “tenant” as a person who is authorized by a lease to occupy a dwelling to
the exclusion of others and, for the purposes of Subchapters D, E, and F, who is
obligated under the lease to pay rent.2 Tex. Prop. Code Ann. § 92.001(6). Caselaw
also addresses the creation or existence of a landlord-tenant relationship, and
provides that no particular words are necessary, “but it is indispensable that it
should appear to have been the intention of one party to dispossess himself of the
premises and the other to occupy them.” Brown v. Johnson, 12 S.W.2d 543, 545
(Tex. Comm'n App. 1929).

       An essential element of the creation of a tenancy is a right of exclusive
possession by the tenant. See Mallam v. Trans-Texas Airways, 227 S.W.2d 344,
346 (Tex. App.—El Paso 1949, no writ). A right to the use of a room does not
necessarily give the right of exclusive possession. Id. When there is evidence that
the owner cares for the rooms, retains a key, or resides on the premises as part of
hiring out rooms, the evidence indicates a relationship of a lodger or guest, rather
than a tenant. See Byrd v. Feilding, 238 S.W.2d 614, 616 (Tex. App.—Amarillo
1951, no writ). Whether the evidence establishes the existence of a landlord-tenant
relationship is a question of fact. See Brown, 12 S.W.2d at 545. Here, there is no
evidence of a written or oral lease agreement between Phillips and appellant.
Phillips expressly denied the existence of any lease agreement with appellant, and
       2
         Subchapters D, E, and F involve security devices, disclosure of ownership and
management, and smoke alarms and fire extinguishers respectively, and are not applicable to this
case. See Tex. Prop. Code Ann. §§ 92.151-170, 92.201-208, 92.251-264.

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her daughter acknowledged that no written lease agreement existed.             Phillips
denied giving appellant a key, but she did tell appellant and her daughter that
appellant could stay at the home as long as he was not intoxicated. Phillips’s
daughter testified that Phillips did give appellant a key and that appellant lived at
Phillips’s house, but that appellant had another home that he used for his mailing
address in Kempner. This conflict in the evidence was for the trial court, as the
trier of fact, to resolve, and we presume it did so in favor of the judgment. Arroyo,
559 S.W.3d at 487. There was evidence that appellant kept his clothes and other
items at the home, and that he had access to the kitchen to cook meals. There was
no evidence, however, that appellant had a right of exclusive possession to the
home or even to a room at the home. Possession exclusive to the tenant is an
essential element of a tenancy. See Tex. Prop. Code Ann. § 92.001(6); Mallam,
227 S.W.2d at 346. And, even presuming appellant contributed some money to
pay for utilities or bills, the mere payment of the cost of utilities is insufficient on
its own to show that he was a tenant of Phillips. See City of Tyler v. Ingram, 164
S.W.2d 516, 520 (Tex. 1942).

      Appellant also contends that a bona fide dispute between appellant and
Phillips regarding appellant’s right of access to the property precludes his
conviction for criminal trespass. Appellant cites Gornick v. State, in which the
Texarkana Court of Appeals held the trespass statute “does not criminalize acts
that are undertaken in good faith as the proper exercise of ownership under a
claimed right.” 947 S.W.2d 678, 680 (Tex. App.—Texarkana 1997, no pet.) We
find Gornick inapplicable.       Even presuming for purposes of argument that
appellant established a tenancy and thus had a possessory right in the premises, it
was undisputed that appellant knew he was not to be at the home if he was
intoxicated and that he was intoxicated on the night in question. Where the terms


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of a lease prohibit entry under certain conditions and the tenant has notice of those
conditions, the tenant can be guilty of criminal trespass. See Munns v. State, 412
S.W.3d 95, 102 (Tex. App.—Texarkana 2013, no pet.) (applying Gornick rule to
tenant under sub-lease because tenant was not aware that lease prohibited
overnight guests or subleases).

      In sum, the record evidence shows that appellant lacked Phillips’s effective
consent to be on the property when he was intoxicated, that appellant was aware of
this restriction yet entered the property in an intoxicated state and remained on the
property in an intoxicated state even after Phillips twice gave notice to appellant to
depart the property. See Tex. Penal Code § 30.05(a)(1), (2).

      When viewed in the light most favorable to the prosecution, the evidence is
sufficient for any rational trier of fact to find that the essential elements of criminal
trespass were proved beyond a reasonable doubt. The evidence is legally sufficient
to support appellant’s conviction. Appellant’s sole issue on appeal is overruled.

                                     CONCLUSION

      Having overruled appellant’s sole issue on appeal, we affirm the trial court’s
judgment.




                                         /s/       Jerry Zimmerer
                                                   Justice

Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.
Publish — TEX. R. APP. P. 47.2(b).




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