                                  NO. 07-01-0329-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL C

                                     JUNE 6, 2002

                         ______________________________


                            JERRY S. PENA, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 140th DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2001-435674; HONORABLE JIM BOB DARNELL, JUDGE

                        _______________________________


Before QUINN and REAVIS and JOHNSON, JJ.


      A jury convicted appellant Jerry S. Pena of the offense of burglary of a habitation

with intent to commit aggravated assault and punishment was assessed at 30 years

confinement. By a sole point of error, appellant contends the trial court erred in denying

his motion for a directed verdict contending insufficiency of the evidence to support
burglary based on the evidence of an existing marital relationship and marital domicile.

Based on the rationale expressed herein, we affirm.


      Because our decision is controlled in part by the provisions of section 3.102(a) of

the Texas Family Code Annotated (Vernon 1998), we will recount only such facts as

necessary for disposition of this appeal. Appellant and the victim had lived together for

several years, and appellant claimed a common law marriage existed between him and the

victim. On August 29, 2000, finding that reasonable cause existed to believe that appellant

had committed acts of violence against the victim, the Lubbock County Magistrate Court

rendered an order which, among other things, ordered that appellant not go within 500

yards of the residence of the victim which, at that time, was designated as 2120 21st

Street, Lubbock, Texas.


       On November 3, 2000, the victim, as the sole party designated as tenant, signed a

lease for one year for an apartment at 1922 14th Street #B. Appellant did not sign the

lease and was not mentioned as a party to the lease in any capacity. After the victim

moved out of the former residence and into the newly leased apartment, appellant

continued to haunt her and sought to gain entry into her apartment. Although appellant

contends that a common law marriage existed and that the apartment leased by the victim

constituted a marital domicile, he did not object to the charge or request any definitions,

nor object to the charge because it did not submit his defensive theory. Appellant does not




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predicate his appeal on charge error, but instead contends the trial court erred in denying

his motion for directed verdict.


       By his sole point of error, appellant contends the trial court erred in denying his

motion for a directed verdict alleging the evidence is insufficient to support burglary based

on the evidence of an existing marital relationship and marital domicile. We disagree.

Generally, when a party raises a point of error challenging the denial of a motion for

directed verdict, it is treated as a challenge to the legal sufficiency of the evidence.

Williams v. State, 937 S.W.2d 479, 482 (Tex.Cr.App. 1996). Evidence is sufficient when,

viewed in the light most favorable to the verdict, a rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Id., citing Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Burglary is entry into a

habitation without the “effective consent of the owner.” Tex. Pen. Code Ann. § 30.02(a)(1)

(Vernon Supp. 2002). In the trial court, appellant presented his motion based on Texas

community property laws, a legal question. However, whether reviewed de novo as a

question of law or by a challenge to the sufficiency of the evidence, the judgment of the

trial court must be affirmed.


       Appellant’s motion for directed verdict was dictated into the record after the State

rested. As material here, appellant asserted


       The contract entered into for the lease, on this 14th Street, in question
       happened during the period of time that she testified they are common-law
       married. Under the laws of the State of Texas people in a union or marriage

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       have community property rights to all property acquired during the time of the
       marriage. That being the case, just on the legal ground, there is a legal
       impossibility that [the victim] could own property that is not owned by the
       Defendant. That makes any consent issue irrelevant due to his ownership
       issue of the property, based on there has not been one shred of evidence
       controverting that. On that ground, we would ask the Court for a directed
       verdict


Although appellant’s point of error is based on an alleged “marital domicile,” the motion

presented to the trial court was based only on Texas community property law and did not

present any question of a marital domicile. Because the issue of marital domicile was not

presented to the trial court, it may not be considered for the first time on appeal. Miller v.

State, 667 S.W.2d 773, 774 (Tex.Cr.App. 1984) (en banc).


        Further, appellant’s argument that the victim’s consent is irrelevant ignores section

3.102(a) of the Texas Family Code. Section 3.102(a) provides in part:


       (a) During marriage, each spouse has the sole management, control, and
       disposition of the community property that the spouse would have owned if
       single . . . .


(Emphasis added). The written lease introduced into evidence designated the victim as

the tenant. Appellant‘s name or signature does not appear on the lease. Pursuant to

section 3.102(a), the leasehold estate vested in the victim was expressly subject to her

sole management and control, notwithstanding the alleged marital relationship or marital

domicile. Therefore, because the victim had the statutory right to sole management and

control of the leased premises, her consent was relevant.


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       Moreover, in Stanley v. State, 631 S.W.2d 751, 753 (Tex.Cr.App. 1982), where the

husband and wife were separated and the wife had filed for divorce, the Court held that the

wife had the right to refuse to consent to the husband’s entry into her residence. The Court

also expressly rejected the husband’s claim that the marital relationship authorized him to

break and enter the premises occupied by his estranged wife. Even though the victim in

the underlying case had not filed for divorce at the time of the assault, nevertheless her

consent was essential, otherwise the statute giving her the right to sole management and

control of the leased premises would be rendered meaningless. Further, for this purpose,

the term “owner” includes a person who has title to the property, possession of the

property, or “a greater right to possession of the property than the actor.” Tex. Pen. Code

Ann. § 1.07(a)(35); see Gregg v. State, 881 S.W.2d 946, 951 (Tex.App.--Corpus Christi

1994, pet. ref’d). Because section 3.102 (a) of the Family Code gave the victim the right

of sole management and control over the apartment, she had a greater right to possession

of the property than appellant, implicating the essential element of her consent.

Appellant’s sole point of error is overruled.


       Accordingly, the judgment of the trial court is affirmed.



                                           Don H. Reavis
                                             Justice

Do not publish.




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