                                  NO. 07-02-0415-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                  OCTOBER 17, 2003

                         ______________________________


                    WILLIAM BRIDGES TYSON, JR., APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

                FROM THE COUNTY COURT OF NEWTON COUNTY;

                NO. N2002-6; HONORABLE JOE NED DEAN, JUDGE

                        _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.


                              MEMORANDUM OPINION


      Following a plea of not guilty, appellant William Bridges Tyson, Jr. was convicted

by a jury of criminal trespass and punishment was assessed by the trial court at 180 days

confinement, suspended for two years. Presenting three issues, appellant contends (1)

the complaint did not satisfy the requirements of article 15.05 of the Texas Code of
Criminal Procedure; (2) the evidence is legally insufficient to prove his guilt beyond a

reasonable doubt; and (3) the trial court erred in refusing to submit his requested

instruction regarding a good faith dispute between the parties. Based upon the rationale

expressed herein, we reverse and render a judgment of acquittal.


       In 1983, complainant, Thomas T. Gill, built a house located 75 to 100 feet from

County Road 1058, which intersects Highway 63.           According to his testimony and

photographs introduced into evidence, his land is cordoned off by cables and flags, and

“no trespassing” signs are posted. On December 30, 2001, Gill noticed appellant and

others taking down cables so they could drive through his property to reach the county

road. A convoy of vehicles was parked approximately 50 feet from his house. Despite

Gill’s warning that they were trespassing and his request that they depart, they refused to

do so. Gill radioed the Sheriff’s Department, but by the time law enforcement arrived,

appellant and the others had left. Gill accompanied an officer to the Newton County

Sheriff’s Office to file charges.1


       Considering appellant’s issues in logical rather than sequential order, we first

address issue two by which he contends the evidence is legally insufficient to support his

conviction for criminal trespass. It is a fundamental rule of criminal law that one cannot be

convicted of a crime unless it is shown beyond a reasonable doubt that the defendant



       1
      A review of the record indicates other litigation involving disputes with landowners
and Newton County regarding whether certain roads are public roads.

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committed each element of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim.

Proc. Ann. art. 38.03 (Vernon Supp. 2003); Tex. Pen. Code Ann. § 2.01 (Vernon 2003).

In conducting a legal sufficiency review, we must determine whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820

S.W.2d 154, 157 (Tex.Cr.App. 1991), overruled on other grounds, Paulson v. State, 28

S.W.3d 570, 573 (Tex.Cr.App. 2000). As an appellate court, we may not sit as a thirteenth

juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than

a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).


       Before determining whether the evidence is legally sufficient to sustain the

conviction, we must review the essential elements the State was required to prove. A

person commits criminal trespass if he enters or remains on property of another without

effective consent and he (1) had notice the entry was forbidden; or (2) received notice to

depart but failed to do so.2 Tex. Pen. Code Ann. § 30.05(a) (Vernon 2003). The State

satisfies its burden of proving the “property of another” element by showing the

complainant had a greater right of possession of the property. Arnold v. State, 867 S.W.2d

378, 379 (Tex.Cr.App. 1993) (en banc); Langston v. State, 855 S.W.2d 718, 721



       2
       Notice may be by oral or written communication, fencing or other enclosure
designed to exclude intruders, posted signs, or placement of identifying purple paint marks
on trees or posts. Tex. Pen. Code Ann. § 30.05(b)(2) (Vernon 2003).

                                              3
(Tex.Cr.App. 1993); see generally Thompson v. State, 12 S.W.3d 915, 920

(Tex.App.–Beaumont 2000, pet. ref’d) (holding the State need not prove ownership where

it pleads the defendant remained on “property of another” rather than explicit ownership

in a particular person).3


       Gill testified the “old skid road” used by appellant was not open to the public. He

further testified about a small cemetery designated as Farr Cemetery located one and one-

half to two miles from his house and a right-of-way to the cemetery that had been

established by the historical commission and the landowners. According to Gill, the

landowners did not object to use of their land to access the cemetery; however, he claimed

the land was not for public use. While testifying, Gill referred to a map that was admitted

into evidence over defense counsel’s objection. The map is not drawn to scale nor does

it contain any numbered highways or labeled roads.


       Minutes of the County Commissioners’ meeting of December 10, 2001, were also

introduced into evidence. One of the motions on the agenda that passed was to accept

a petition and administratively determine that Gilchrist Place Road, Westbrook Sisters

Place Road, Farr Cemetery Road, and Mary Helen Road be declared public roads in

Precinct Two. Gill, County Commissioner of Precinct Two, voted against the motion.

During redirect examination, he testified about the public roads in relation to the location


       3
       Although the information recites that appellant intentionally or knowingly entered
“property of another, namely, Thomas T. Gill,” it did not plead ownership in Gill and thus
was only required to prove that Gill had a greater right of possession.

                                             4
of his house; however, his testimony is not easily reconciled with the map introduced into

evidence. He testified as follows:


      Q. Mr. Gill, any of those roads that were mentioned in the – the document
      there, any of those roads mentioned, do they cross your property?
      A. Not where he was kilt at. The onliest [sic] one that was in question at that
      time and we talked about it was what they want to call that Farr Cemetery
      Road.
      Q. Okay. Ane [sic] what – where’s – have you got the map still? If you
      would, show us on the map where that road is?
      A. During the commissioner’s meeting and discussion, the Farr Cemetery
      Road –
      [Defense counsel]: Objection, Your Honor. He was just asked to show where
      the cemetery was at.
      [Court]: Let me let – let me let – this might be the earliest, this thing here I
      think will show up.
      Q. All right. If you would, show us where the road is, the Farr Cemetery
      Road that was discussed in the commissioner’s meeting?
      A. Okay. It – it’s right here where this X is, where the – where the cemetery
      is and there’s a road comes down and you eventually come on out and hit
      1012 down here. I believe this is right in front of Pine Grove Church.
      There’s two or three different ways once you get off in the main woods there,
      you come in, get to it. And this, to our knowledge, is what some of the sen
      – some of the citizens in the county is calling the – want to call the Farr
      Cemetery.
      Q. Okay. Does [sic] the minutes there, you read the minutes of the
      Commissioner’s Court meeting, do they say anything about where the road
      ends?
      A. Uh –
      Q. Would you like – do you need to look at it to refresh your memory?
      A. Yeah, see it – the Farr Cemetery Road stops at the Farr Cemetery.
      Q. All right. And which – which direction is the road coming from to the Farr
      Cemetery?


                                             5
       A. That – it would be going – you’ll be going from 1012, off of 1012 up this
       way and stops at the cemetery right here [indicating].
       Q. Okay. And once again show us where your house is located on the map.
       A. And my house is up here next to County Road 1058.


Appellant testified that on December 30 he was traveling on an old road referred to as Farr

Cemetery Road. This statement is uncontradicted. The evidence also shows that as of

December 10, 2001, Farr Cemetery Road was administratively determined to be a public

road. An article from the Newton County News dated July 23, 1998, about the restoration

of Farr Cemetery was also introduced into evidence by the defense. The article provided

in part:


       During a meeting of the Farrs Chapel Cemetery Association in 1996, Ben
       Lindsey offered to restore this cemetery and make it accessible to the public.

                                           ***
       ‘I began exploring ways to access the cemetery and remembered an old
       road that passed by Thomas Gill’s house that led to the cemetery,’ Lindsey
       reported.


       Gill and Lowe contacted the three property owners . . . and permission was
       given to build a one-lane road to the cemetery.


(Emphasis added). The evidence established that on December 10, 2001, Farr Cemetery

Road was declared to be a public road and that on December 30, 2001, appellant was

traveling on Farr Cemetery Road. The State failed to prove beyond a reasonable doubt

that on December 30, 2001, Gill had a greater right of possession to Farr Cemetery Road


                                             6
than appellant. Viewing the evidence under Jackson, we conclude it is legally insufficient

to support appellant’s conviction for criminal trespass. Our disposition of issue two

pretermits consideration of issues one and three.


      Accordingly, the judgment of the trial court is reversed and a judgment of acquittal

is hereby rendered.


                                         Don H. Reavis
                                           Justice

Do not publish.




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