                                                                               PD-0758-15
                        PD-0758-15                           COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                            Transmitted 7/1/2015 11:57:53 AM
                                                               Accepted 7/1/2015 3:49:55 PM
          IN THE COURT OF'CRIMINAL APPEALS OF             TEXAS               ABEL ACOSTA
                                                                                      CLERK

DEWAN MORGAN,                     $
   APPELLEE                       $
                                  $
    V                             $             No. PD-0758-15
                                  $
THE STATE OF TEXAS,               $
   APPELLANT                      $




          STATE'S PETITION FOR DISCRETIONARY REVIE\il


        FROM TI{E SECOND DISTRICT OF TEXAS AT FORT WORTH
                  IN CAUSE NUMBER 02.I4.00231-CR
                                AND
               FROM TI{E zITTHJUDICIAL DISTRICT COURT
                       DENTON COI-INTY, TEXAS
                   IN CAUSE NUMBER F-2013-I7O4.C


                                      PAUL JOHNSON
                                      Criminal District Attorney
                                      Denton County, Texas

                                      CATHERINE LUFT
                                      Assistant Criminal District Attomey
                                      Chief, Appellate Division

                                      YAEL ZBOLON
                                      Assistant Criminal District Attorney
                                      1450 East McKinney, Suite 300
         July 1, 2015                 Denton, Texas 76209
                                      State Bar No. 24077065
                                      (e40) 34e-2600
                                      FAX (e40) 34e-260r
                                      yael. zbolon@dentoncounty .com
            IDENTITY OF PARTIES AND COUNSEL

Appellee                    DE\ryAN MORGAN

                            STANLEY GOOD\ryIN
                            303 North Carroll Boulevard
                            Suite 234
                            Denton, Texas 76201
                            APPELLATE COI.INSEL

                            DEREK ADAME
                            1512 East McKinney Street
                            Suite 102
                            Denton, Texas 76209

                            TRIAL COUNSEL

Appellant                   THE STATE OF TEXAS
                            PAUL JOHNSON
                            Criminal District Attorney

                            CATHERINE LUFT
                            Assistant Criminal District Attorney
                            Chief, Appellate Division

                            YAEL ZBOLON
                            Assistant Criminal District Attorney
                            State Bar No. 24077065
                            1450 East McKinney
                            Denton, Texas 76209
                            (940) 34e-2600
                            FAX (940) 34e-27sr
                            yael. zbolon@dentoncounty. com

                             APPELLATE COTINSEL

                             MICHAEL GRAVES
                             LINDSEY SHEGUIT
                             Assistant Criminal District Attorneys
                             TRIAL COUNSEL
                             TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL                                                                I


INDEX OF AUTHORITIES                                                                    IV-V


STATEMENT REGARDING ORAL ARGUMENT                                                              1




STATEMENT OF TT{E CASE...                                                                      2

STATEMENT OF PROCEDURAL HISTORY                                                                2

                                                                                               a
QUESTIONS PRESENTED FOR REVIEW                                                                 J


  l.  In burglary of habitation cases, must trial and appellate courts
  utilize property law to determine who qualifies as the "owner"
  of a habitation as defined by the Penal Code?                                                J

  2. To qualiff
              as "entry without the effective consent of the owner"
  how much time must elapse after a victim revokes consent for
  her live-in boyfriend to enter her home for his forcible entry to
  be deemed a   burglary?..............                                        ...,.........   3

                                                                                               a
ARGUMENT                                                                                       J


GROLIND ONE                                                                                    5


  In burglary of habitation cases, must courts utilize
  property law to determine who qualiltes as the "owner"
  as defined by the Penal Code?.....                                              ..........   5


       Trial and appellate courts should not be required to reference
       property law to determine the meaning of a criminal statute.                  ....... 6

       Furthermore, the Second Court of Appeals applied property
       law principles improperly. .....,.....                            ....,............... 7

       By disregarding the Penal Code's definition, the Second
       Court improperly broke away from precedent.............. ..................9


                                                                                               ll
       The Second Court of Appeals improperly applied the
       sufficiency standard by acting as a thirteenth juror.                  ..... 1 I

GROUND TWO                                                                       .. 13


    To quali$r as "entry without the effective consent of the owner"
    how much time must elapse after a victim revokes consent for
    her live-in boyfriend to enter her home for his forcible entry to
    be deemed a burglary?..........                                                 l3

       Revoking effective consent: how much time is enough?                         13


       Dominguez misconstrued: what does it mean that
       "possession must be determined immediately prior to
       and not duríng the break-in"?                                                15


       The Second Court of Appeals vs. The Fourth Court of
       Appeals: which standard applies to determine who has possession?.....,....   l6

       Applied properly, the Domínguez standard should govern.                      t7

PRAYER FOR RELIEF                                                                   r8

CE,RTIFICATE OF COMPLIANCE                                                          t9

CERTIFICATE OF SERVICE                                                              t9

APPENDICES:

A   Judgment of Conviction

B Morgan     v. State, No. 02-14-00231-CR, 2015 Tex. App. LEXIS 541I (Tex.
App.-Fort    Worth }i4ay 28,2015, pet. hled)

C   49 Tex. Jur. Landlord and Tenant $ 13 (2014) (Tenancy      atwill)

D   49 Tex. Jur. Landlord and Tenant $ 14 (2014) (Tenancy at sufferance)




                                                                                     lll
                         INDEX OF AUTHORITIES


Statutes, Codes, and Rules


Tex. Penal Code Ann. $ 1.07(a)(35X4) (West Supp.2014)                             5,7

Tex. Penal Code Ann. $ 1.07(a)(39) (West Supp. 2014)                            5,17

Tex. Penal Code Ann. $ 30.02(a)(1) (West 201l)                                        5


Tex. Penal Code Ann. $ 30.02(a)(2) (West 2011)                                        5


Tex. Prop. Code Ann. $ 92.001 (West 2014)                                             7


Tex. Prop. Code Ann. $ 92.009 (West 2014)                                             8


Tex. R. App. P. 41.3                                                                 t4

Cases

Alexander v. State
  753 S.W.zd390 (Tex. Crim. App. 1988)                                                5


Carrasco-Flores v. State
 No.08-13-00231-CR,2015 Tex. App. LEXIS 4982
 (Tex. App.-El Paso }l4lay 14,2015, no pet.)                              t0,13,14

Dewberry v. State
 4 S.W.3d 735 (Tex. Crim. App. 1999)                                                 t2

Dominguez v. State
 355 S.W.3d 918 (Tex.   App.-Fort Worth   2011, pet. ref d).,....... 10, 13,14,15,   l6

Freemqn v. State
  707 S.W.2d597 (Tex. Crim. App.   1986)                                .........,....17




                                                                                     1V
Garza v. State
 344 S.W.3d 409 (Tex. Crim. App.       20ll)                                ...............5

Gregg v. State
 881 S.W.2d946 (Tex. App.-Corpus Christi, 1994, pet. refd)....................10,        13


Hooper v. State
 214 S.W.3d 9 (Tex. Crim. App.       2007)                                         ll,l2
Hudson v. State
 799 S.W.2d3l4 (Tex. App.-Houston [14th Dist.] t990, pet. ref d)                   10, 13

Jackson v. Virgínia
  443 U.S. 307 , 99 S. Cr. 2781,   6r L. Ed. 2d 560 (1979)                         ll, 12
Laster v. State
  275 S.W.3Í5I2 (Tex.    Crim.4pp.2009)                                     .............12

Mack v. State
 928 S.W.zd219 (Tex. App.-Austin 1996, pet.         refld)..........;...   7,10,13,17

Morgan v. State
 No.02-14-00231-CR,2015 Tex. App. LEXIS 54ll
 (Tex. App.-Fort Worth'l|l.Iay 28,2015, pet. filed)                               passim

Ramirez v. State
 429 S.W.3d 686 (Tex. App.-San Antonio 2014, pet ref d)                             16, 17

Stanley v. State
  631 S.W.2d751 (Tex. Crim. App. 1982)                                                     9



Other Authorities

49 Tex. Jur. Landlord and Tenant $ 13 (2014),                                              8


49 Tex. Jur. Landlord and Tenant $ 14 (2014)                                           8,9

Herbert Hovenkamp & Sheldon F. Kurtz,
 Principles of Property Law 265 Thompson'West,6th ed. 2005                             8,9


                                                                                           v
          IN THE COURT OF CRIMINAL APPEALS OF TEXAS

DE\ryAN MORGAN,                         $
    APPELLEE                            $
                                        $
     V                                  $              No. PD-0758-15
                                        $
THE STATE OF TEXAS,                     $
    APPELLANT                           $




          STATE'S PETITION FOR DISCRETIONARY REVIEW

TO TI{E HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now the State, by and through its Assistant District Attorney, and

respectfully urges   this Court to grant discretionary review of the         above

named cause.

               STATEMENT REGARDING ORAL ARGUMENT

      Because the issues presented in this   case-(l) whether courts should utilize

property law in determining whether a person is the "owner" of a habitation      as


defined by the Penal Code; and (2) how much time must elapse after consent to

enter a habitation is revoked for subsequent entry to qualiff as burglary-have not

been addressed by this Court, the State believes oral argument would be helpful to

the courts of the State of Texas and the parties. The State therefore      requests

oral argument.




                                                                                  I
                          STATEMENT OF THE CASE

      As their relationship    progressed, Regina Raglin invited her boyfriend,

Appellee, to live with her at her apartment. V/hile she gave him a key, she never

added him to her lease, and she alone paid the rent (3 R.R. at 29-30; State's

Exhibits 20-21). Appellee only contributed financially by paying for                  some

groceries, cleaning supplies, and the electric   bill (3 R.R. at 29-30).

      The morning of the offense the couple argued (3 R.R. at                4l).   Fearing

Appellee, who had assaulted her before, Regina invited a male friend to come over

that evening after work (3 R.R. at 40-43). V/hen Appellee came home, he saw

Regina's friend in the parking lot and the two exchanged words (3 R.R. at 43-44)

Regina quickly locked a deadbolt that could only be unlocked from within (3 R.R.

at 43-45,63). Realizing his key was useless; Appellee pounded on the door, rang

the doorbell, yelled, shattered the kitchen window, and ultimately kicked down the

door, with the deadbolt still in place (3 R.R. at.46-47; State's Exhibits 7-8, l8).

Regina was on the phone with 9-1-1, but quickly retreated to her bedroom (3 R.R.

at 50). Appellee grabbed, punched, scratched, bit, and choked Regina until police

arrived (3 R.R. at 48;4 R.R. at 46,51,63,67-68; State's Exhibits 12-17, 19)

                 STATEMENT OF                               HISTORY

       A j.tty found Appellee guilty of burglary of a habitation and sentenced him

to 12 years in jail (6 R.R. af 5; C.R. at 25).          See Appendix       A [Judgment of


                                                                                          2
Conviction]. Appellee appealed to the Second Court of Appeals at Fort Worth

claiming the evidence was insufficient          to   support   his conviction. On
May 28, 2015, in a published decision, the Second Court of Appeals reversed the

burglary of a habitation conviction, affirmed the lesser included assault conviition,

and remanded for new punishment proceedings.           ^See
                                                              Appendix   B   lMorgan v

State, No. 02-14-00231-CR, 2015 Tex. App. LEXIS        54ll (Tex. App.-Fort Worth

lr4ay 28,2015, pet. filed)1. The State did not file a motion for rehearing.

                   OUESTIONS PRESE NTED FOR REVIEW

       1. In burglary of habitation    cases, must trial and appellate courts
          utilize property law to determine who qualifies as the "owner" of a
          habitation as defined by the Penal Code?

      2. To qualifo  as "entry without the effective consent of the owner"
          how much time must elapse after a victim revokes consent for her
          live-in boyfriend to enter her home for his forcible entry to be
          deemed a burglary?

                                    ARGUMENT

      Texas   trial and appellate courts need guidance on two issues not yet
addressed   by this Court. Such guidance would have broad implications on all

burglary of habitation cases in Texas

      First, the Second Court of Appeals has disregarded precedent establishing

that the three-pronged definition       of an "owner" in the Penal Code is the
authoritative guide   for determining ownership of property in burglary           cases


Instead of relying on the Penal Code, the Second Court turned to common law

                                                                                      a
                                                                                      J
landlord tenant rules for guidance. In so doing, the Second Court established        a


new precedent that trial and appellate courts should confer with property law in

criminal cases when the Penal Code already aptly defines "owner." Left

undisturbed this precedent would cause needless confusion         in criminal   cases.


Furthermore, the Second Court of Appeals misapplied the property principles it

utilized in reaching its opinion and improperly acted as thirteenth juror when

applying the sufficiency standard.

      Second, the Second Court of Appeals and the Fourth Court of Appeals apply

two different standards to   determine 'who has "possession"     of the habitation in

burglary cases, This Court should clari$r which standard should be applied

state-wide. Additionally, in cases dealing with live-in boyfriends or girlfriends this

Court has yet to address how much time must elapse between revocation of

consent and entry for the subsequent entry to be deemed a burglary. Courts have

held that when a boyfriend moves out weeks or months before breaking-in and

assaulting his (former) girlfriend, enough time had elapsed        for consent to   be

effectively revoked. But no case has yet addressed whether consent is effectively

revoked minutes before entry.

      Furthermore, by its holding, the Second Court implies fhat a victim can

never revoke consent for her live-in boyfriend to enter her apartment when faced

with an immediate threat. This is an absurd result that warrants review.


                                                                                     4
                                  GROUND ONE

           In burglary of habitation   cases, must trial and appellate courts
           utilize property law to determine who qualifies as the "owner" of
           a habitation as defined by the Penal Code?

                                     Argument

      A person commits burglary of a habitation if without the effective consent of

the owner the person enters a habitation (1) with intent to commit a felony, theft, or

an assault; (2) commits a felony, theft, or assault; (2) or attempts to commit        a


felony, theft, or assault. Tex. Penal Code Ann. $30.02(a)(l),(2) (West 201l). The

Penal Code defines the "owner" of the property, capable of giving or revoking

consent to enter, as one who (1) has title to the property; (2) has possession of the

property, whether lawful or not; or (3) has a greater right to possession of the

property than the actor. Tex. Penal Code Ann. $1.07(a)(35X4) (West Supp. 2014).

"Possession" is defined as actual care, custody, control or management. Tex

Penal Code Ann. $ 1,07(a)(39) (West Supp. 2014). Thus, under the Penal Code,

any person who has a greater right to actual cate) custody, control, or management

of the property than the defendant is the owner.           See Alexander      v. State,
753 S.W.2d390,392 (Tex. Crim. App. 1988)

In burglary of habitationcases, must courts utilize property law to determine
who qualifies as the "owner" as defined by the Penal Code?

      The Penal Code includes an expansive deflrnition of an                    owner

Garza v. State,344 S.W.3d 409,413 (Tex. Crim. App.         20Il).   In its analysis, the

                                                                                       5
Second Court of Appeals abandoned a straight forward application of "owner" as

defined by the Penal Code in favor of an analysis of landlord tenant law under

common law. The Second Court determined that because Appellee had originally

moved into Regina's apartment with her consent, and because his belongings were

in the apartment, he qualified as a tenant and had equal possessory rights to the

apartment. Morgan v. State, No.               02-14-0023   l-CR, 2015 Tex.      App

LEXIS 54t1, *6 (Tex. App.-Fort Worth May 28, 2015, pet. filed). Accordingly,

the court asserted that Appellee was a co-tenant, and either a tenant at will or   a


tenant at sufferance, with the right to occupy and control the apartment until his

tenancy was termlnated.   Id. This analysis   begs the question: to determine whether

someone was an owner under the Penal Code, should courts be required to

cross-reference with the Texas Property Code or common law property principles?

This question remains unanswered by this Court.

Triat and appellate courts should not be required to reference property law to
determine the meaning of a criminal statute.

      Not only will requiring trial courts to confer with property law to determine

who qualifies as an "owner" under the Penal Code cause undue confusion, the

Penal Code's definition already provides courts with sufficient guidance to

determine who    is an "owner."      Because the Penal Code includes among its

definitions one who has "possession of the property, whether lawful or not" and

one who has     a   "greater right   to   possession," the Penal Code's definition


                                                                                      6
encompasses cases      like this one. Therefore,       it   would be unnecessary to look

further for guidance under property law

        Under a straight-forward application      of the Penal Code's definition of
owner, Regina had greater right to possession of the property as she alone paid rent

and was recognized under the lease as the rightful tenant. See Tex. Penal

Code $ 1.07(a)(35X4). She was also the owner because she had possession of the

property before the break-in.    Id.   Appellee having some possessory rights in the

property is not dispositive. "The touchstone of our analysis is not whether the

defendant has any right to possession of the property at all, but whether the alleged

owner's right     to   possess   the   property   IS    greater than    the   defendant's."

Mack v. State,928 S.W.2d 2t9, 223 (Tex. App.-Austin 1996, pet. ref                d).   The

Penal Code clearly indicates that a defendant who has some, but less, right to

control a building than the alleged owner may be prosecuted for burglary. Id.

Furthermore, the Second Court of Appeals applied property law principles
improperly.

        The Texas Property Code defines a tenant as one who "is authorized by             a


lease   to occupy a dwelling to the exclusion of others and . . . who is obligated

under the lease to pay      rent." Tex. Prop. Code Ann. $ 92.001 (West 2014)




                                                                                          7
Therefore, even under property law, Appellee would not have qualified as a tenant

as he was   not listed on the lease nor did he pay rent.l

       Furthermore, the Second Court              of Appeals incorrectly        concluded that

Appellee was either a tenant at will or a tenant at sufferance. Morgan,2015 Tex,

App. LEXIS 5411, at              *5. In its analysis, the court cited a Texas treatise.
See Appendices           C [49 Tex. Jur. Landlord and Tenant $ 13 (2014) (defrning
tenancy at      will)l   and   D [49 Tex. Jur. Landlord and Tenant $ 14 (2014) (defìning

tenancy at sufferance)]. But the court improperly applied the law as provided in

the treatise.

       A    tenancy at      will is at the will of   either tenant or landlord and can be

terminated       by either party without notice. 49 Tex. Jur. Landlord                      and

Tenant $ 13 (201Ð; Herbert Hovenkamp                  &     Sheldon F. Kurtz, Principles      of
                          'West,
Property Law 265 Thompson        6th ed. 2005. A tenant at will has no certain or

sure estate. 49 Tex. Jur, Landlord and Tenant                $ 13. Thus, the distinguishing
characteristic of a tenancy at        will is uncertainty   as   to the duration of the tenant's

holding of the premises.           Id.   Moreover, in contrast to a tenant at sufferance,      a


tenant at   will   possesses the property     with the owner's consent. Id. By this very




t      Alternatively, even if Appellee was a tenant, the code does not authorize
"self-help" remedies such as kicking down a door. Appellee's legal course of action was
to seek a writ of re-entry . See Tex. Prop. Code Ann. $ 92.009 (West 2014).

                                                                                               8
definition, Appellee would only be permitted possession of the premises by the

owner, Regina. As such, she is the rightful owner with greater possessory rights.

      A tenant at sufferance is "no tenancy at all but a mere naked possession of

land without     right."   Herbert Hovenkamp     & Sheldon F. Kurlz, Príncíples of
                                'West,
Property Law 265 Thompson                6th ed. 2005. A tenant at sufferance does not

assert a claim   to superior title, is not in privity with the owner, and possesses no

interest capable of assignment. 49 Tex. Jur. Landlord and Tenant $ 14 (2014).

Accordingly, even if Appellee qualified as a tenant at sufferance, Appellee had no

possessory interest equal     to Regina's,     Therefore, even under common law,

Appellee would not have qualified as           aî   "owner" under the Penal Code's

definition.

       By turning to       common law landlord tenant rules, the Second Court

disregarded the expansive definition      of "owner" as defined by the Penal Code.

Since the Penal Code's definition is more precise and relevant in the context of     a


burglary of a habitation, there is no need to require courts to cross-reference with

the Texas Property Code or common law landlord tenant law to discem who

qualifies as an "owner" under the Penal Code.

By disregarding the Penal Code's definition, the Second Court improperly
broke away from precedent.

       Cases   with similar facts have all utilized the Penal Code's definition of

owner.    See Stanley v. State, 631 S.\M.2d 751 (Tex. Crim.      App. 1982) (although

                                                                                     9
defendant was still married to victim, victim had moved out of their joint home and

had greater right to possession of her new apartment); Carrasco-Flores v. State,

No. 08- 13-0023 1-CR, 2015 Tex. App. LEXIS 4982 (Tex. App.-El                     Paso

li4ay 14,2015, no pet.) (not designated for publication) (as victim kicked defendant

out in the morning, changed the locks, and removed defendant from lease, she was

the owner because she had greater rights to possession and had actual possession

before the break in); Dominguez v. State,355 S.W.3d 918 (Tex.      App.-Fort Worth

2011, pet. refld) (although defendant had made many mortgage payments, the

victim had a greater right to possession   as the house was purchased by the   victim's

sister for her benefit and the victim had possession        of the   apartment as the

defendant's key did not work, and victim would not open the door when defendant

knocked); Mack v. State,928 S.W.2d 219 (Tex. App.-Austin 1996, pet, refd)

(although defendant's name was on the lease, the victim had greater rights to the

property since defendant had moved out, stopped paying rent, and agreed to call

before coming over); Gregg v. State,88l S.W.2d 946 (Tex. App.-Corpus Christi,

1994, pet.   refd) (although victim's home was in her parent's   name she had greater

rights to possession than defendant since defendant and victim had separated and

defendant did not live with victim anymore); Hudson v. State,799 S.W.2d 314,

315 (Tex. App,-Houston [14th Dist.] 1990, pet. refd) (although defendant and




                                                                                     10
victim had lived together, she had greater rights to the property since she kicked

defendant out).

      Courts have remained within the bounds               of the Penal Code without
venturing into property law           to define "owner." Accordingly, by turning        to

property law instead of remaining within the well-established framework, the

Second Court of Appeals erred.

The Second Court of Appeals improperly applied the sufficiency standard by
acting as a thirteenth juror.

      The    jury in this   case was not instructed about the property law principles   of

tenants at   will or at sufferance. In the trial court's jury    charge, the jurors were

provided the definition of owner from the Penal Code (C.R. at 16). Therefore, by

contemplating law outside           of what the jury considered, the Second Court of

Appeals acted improperly by placing itself as a thirteenth juror.

      In assessing the legal sufficiency of the evidence under Jaclçson v. Virgínia,

a reviewing court "consider[s] all of the evidence in the light most favorable to the

verdict and determinefs] whether, based on that evidence and reasonable inferences

therefrom, a rational juror could have found the essential elements of the crime

beyond a reasonable doubt." Hooper v. State,214 S,W3d                 9, 13 (Tex. Crim.

App. 2007) (citing Jackson v. Virgínia,443 U.S. 307,318-19, 99 S. Ct.2781,

 2788-89,    6l L. Ed. 2d 560 (l 979). A reviewing court's role is not to become a
thirteenth juror, and       it   should not reevaluate the weight and credibility of the

                                                                                        l1
record evidence and substitute its judgment            for that of the fact-frnder.
Dewberry v. State,   4 S.W.3d 735, 740 (Tex. Crim. App. 1999).             Instead, a

reviewing court defers to "the responsibility of the trier of fact to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts." Hooper,214 S.W.3d at 13 (quotingJackson,

443 U.S. at 318-19). This same standard applies equally to circumstantial and

direct evidence. Laster v. State,275 S.W.3d 512, 517-18 (Tex. Crim. App. 2009).

A   reviewing court's role on appeal is "restricted to guarding against the rare

occuffence when a factfinder does not act rationally   ." Id. at 518

       By contemplating property law which was not presented to the jury,        and

basing its decision on an erroneous application of property law, the Second Court

of Appeals improperly     substituted its judgment      for that of the fact-finders.

See Dewberry,    4 S.W.3d at 740.     Accordingly, the Second Court improperly

applied the legal sufficiency standard, an enor that warrants review by this Court.




                                                                                      t2
                                   GROUND TWO

         To qualiS, as "entry without the effective consent of the owner"
         how much time must elapse after a victim revokes consent for her
         live-in boyfriend to enter her home for his forcible entry to be
         deemed a burglary?

                                          Argument

Revoking effective consent: how much time is enough?

      A person who had equal           possessory rights   to a property runs afoul of the

burglary statute by entering that property after their entry rights are effectively

revoked. Mack, 928 S.W.2d at 219. There is no clear precedent on how much

time must elapse between termination of a possessory interest and revocation of

consent to enter before entry   will   be considered a burglary.

      Courts have asserted that when a live-in boyfriend or girlfriend is either

"kicked out" or voluntarily moves out weeks or months before committing

burglary of a habitation, enough time had elapsed to indicate that their rights were

effectively revoked. Carrasco-Flores, 2015 Tex. App. LEXIS 4982 (victim kicked

defendant out the morning he broke in and murdered her); Dominguez,355 S.W.3d

at 918 (defendant moved out two weeks before breaking in and murdering                  his

girlfriend); Mack, 928 S.W.2d at 219 (defendant moved out three months before

breaking in and murdering his girlfriend); Gregg, 881 S.W.2d at 946 (defendant

and victim stopped living together seven months before defendant murdered victim

during commission     of burglary of         habitation); Hudson, 799 S.W.2d       at   315


                                                                                         l3
(defendant was "kicked out" a month before breaking in and attempting to murder

his girlfriend). However, no case has addressed whether entry rights may                 be

effectively revoked minutes before entry to still quali$'as burglary of a habitation.

      In this case, moments before Appellee             reached   the door, Regina
constructively revoked Appellee's consent to enter her apartment by purposefully

locking a deadbolt she knew would render his key useless (3 R.R. at.45,63). She

refused   to unlock the door even after he continually pounded on the door,
screamed, and threw something through the window, shattering              it. (3 R.R.
at 46-47; State's Exhibits 7-8, l8).2 Fearing being assaulted by Appellee, Regina

revoked his consent at a time she needed to most.

      In its opinion, the Second Court implicitly held that enough time had not

elapsed after Regina revoked consent for Appellee's forcible entry to          qualiff   as


burglary of a habitation. Morgan, 2015 Tex. App. LEXIS 5411,             at.   *6. As it
stands, this case holds that a victim may not revoke consent for her live-in




'     Th.   State   will
                       note that Regina's actions would have qualified as effectively
revoking consent. See Carrasco-Flores, 2015 Tex. App. LEXIS 4982, at *23. In
Carrasco-Flores, the victim had possession of the apartment when the defendant arrived,
the defendant's key did not work, and the victim did not respond when the defendant
knocked on the door. Id. Citing Dominguez,lhe court found that since the victim was in
possession of the property, she was the owner under the Penal Code. Id; see Dominguez,
355 S.W.3 d at 918. Although the Carrasco opinion was rendered by the Eighth Court of
Appeals, it was transferred there from the Second Court of Appeals under the Texas
Supreme Court's docket equalization efforts. Accordingly, the court followed precedent
from the Second Court of Appeals. ,See Tex. R. App. P.41.3

                                                                                         t4
boyfriend to enter her apartment moments before her impending assault, at a time

she needs to   most. This is an absurd result that warrants review by this Court.

Dominguez misconstrued: what does it mean that "possession must be
determined immediately prior to and not during the break-in"?

      In Dominguez, the Second Court of Appeals asserted that in burglary of

habitation cases, possession is determined "immediately prior to and not during

the break      in."   Dominguez     v.   State, 355 S.W.3d 918, 923 n.2 (Tex

App.-Fort Worth 2011, p€t. refd). This holding would seem to support the

notion that the possessor of the property immediately before the break-in would be

the."legal owner" capable of revoking consent under the Penal Code. Yet the

Second Court of Appeals construed this precedent to mean that because Appellee

had possession of the apartment at some point before the break-in, that he could

not be guilty of burglary of a habitation. Morgan, 2015 Tex. App. LEXIS 5411,

at*6. In so holding, the Second Court misconstrued what Dominguez         stood for.

      ln     Dominguez, Dominguez claimed that since he came to .possess the

property after he broke in, he could not be guilty of burglary of a habitation

Dominguez, 355 S.W.3d         at 923 n.2. The court asserted that his claim was
meritless:

      To the extent that fDominguez] also appears to argue that he acquired
      possession, lawful or not, under section 30.02 when he entered the
      house so he could not have committed burglary, we note that this view
      of the offense leads to the absurd result that a person who breaks into
      a home immediately takes possession of it and becomes the owner,

                                                                                       l5
       who then gives himself effective and retroactive consent to break in
       and therefore cannot be found guilty of burglary. We are confident
       that this is not the result the legislature intended when it passed the
       burglary statute, and that to avoid this absurd result, possession
       must be determined immediately prior to and not during the
       break-in. In other words, the legislature cannot have intended to
       allow one to acquire possession as against another already in
       possession, lawfully or not, by onets own unlawful entry.

Id.   (emphasis added). Yet no case has interpreted how far back courts must look

when determining possession prior to The break-in. Under Dominguez,        if would

seem that possession immediately prior     to the break-in as applied in this case

would mean that since Regina was physically inside the apartment prior to the

break-in, she was in possession. As that was not the holding of the Second Court

of Appeals, this Court should grant the State's petition to indicate whether the

Second Court    of Appeals misconstrued Dominguez. Or, this Court should grant

the State's petition to clariff how far back in time courts should look when

determining possession prior to the break-in.

The Second Court of Appeals vs. The Fourth Court of Appeals: which
standard applies to determine who has possession?

        While the Second Court of Appeals has asserted that the standard to

determine possession is by evaluating who had possession prior to and not during

the break-in, the Fourth Court of Appeals has established a different standard.

Under the Fourth Court's reasoning, possession is measured at the time of the

accused's alleged criminal    act.   Ramírez v. State, 429 S.W.3d 686, 688 (Tex.



                                                                                 l6
App.-San Antonio 2014, pet ref d) (citing Freeman v. State,707 S.W.2d 597,603

(Tex. Crim. App. 1986)).3 As there are two differing standards to apply for similar

fact   scenarios, Texas courts need clarification           on which      standard to

properly apply.4

Applied properly, the Dominguez standard should govern.

       Under afair interpretation of Dominguez,Regina was the owner as she had

possession immediately prior to the break-in. Whether Appellee had possession at

some point in the past is irrelevant. The State prays the Court grants review to

clariff the proper interpretation and application of the Dominguez slandard.




3      The Third Court of Appeals has asserted that possessory rights are determined on
the date of the offense, without more specificity. See Mack,928 S.W.2d at223.
a Under either application, it appears the Second Court of Appeals' approach to look
into the future to determine possession is equally inappropriate. Morgan,2015 Tex. App.
LEXIS 5411, at *6. The Second Court articulated that since the victim did not intend to
revoke Appellee's consent forever, his consent was not revoked prior to the burglary and
assault. In Ramírez,the Fourth Court asserted that possessory rights the night before the
burglary were not relevant to its consideration of ownership as judged from the time of
the charged offense. Ramírez v. State, 429 S.W,3d 686, 690 n.3 (Tex.
App.-San Antonio 2014, pet refd); see Mack, 928 S.W.2d at 223 (possession
determined on the date of the offense); Tex. Penal Code L07(a)(39). Accordingly,
Appellee's future claim to the apartment should be equally irrelevant when determining
possession at the time of the offense.


                                                                                      t7
                             PRAYER         R RELIEF'

      Accordingly, the State of Texas prays that the Court of Criminal Appeals

grants review in this case to permit full briefing on the issues presented




                                              Respectfully submitted,


                                              PAUL JOHNSON
                                              Criminal District Attorney
                                              Denton County, Texas




                                               Y       zBo
                                               Assi              District Attomey
                                                     East McKinney, Suite 300
                                               Detnon, TX 7 6209
                                               State Bar No. 24077065
                                               (940) 34e-2600
                                               FAX (e4o) 34e-260r
                                               yael. zbolon@dentoncounty. com




                                                                                    18
                      CERTIFICATE OF COMPLIANCE

      The State certihes that the State's Petition for Discretionary Review in the

instant cause contained a word count of 3642, said count being generated by the

computer program Microsoft Word that was used to prepare the document.




                                                     LO



                             CERTIFICA TE OF'SERVICE

      True copies of the State's Petition for Discretionary Review have been sent

by United States mail to the appellate attorney for Appellee, Stan Goodwin,

303 North Carroll Boulevard, Suite 234, Denton, Texas 76201, and          to State
Prosecuting Attorney, Lisa     McMinn, P.O. Box 12405, Austin, Texas 787t1, on

the 1't day of July, 2015.




                                                          LON
                                                      Criminal         Attorney




                                                                                  19
  APPENDIX A

[Judgment of Conviction]
                                               o                                                    o                i   7vFË5::..F




                                   Cesu No.       F-2013-1704-C                              CouNr
                                                 INCTDENT      No./tR¡l: 9zl83zt568 I Ao0z
                                                                                                        l-i
T¡rp Sretn op To<ns                                                                              IN T¡lE'

v

DEWANMORGAN

SrRrp ID No,: Tx05804506
                                                                                                                                                   ,,J'
                                     JuocmENT oF CoNvrcrroN BY JuRg\                                                                  "6€;   t_
                                                                                                                                             P
Judse   Presidins:       Hox.L. DEE SHIPMAN                               |:[,t#t*"                 6n4tzot4                          .t
                         MICHAEL GRAVES AND/OR                            At0orney for
Attorney for Statel                                                                                 DEREK A. ADAME
                         LINDSEY SHEGUIT                                  Defendant:
Ofrense &r which Defendant Convicted:
BURGLARY OF A HABITATION - FAMILY VIOLENCE
Chareins Instrument:                                                      Statute for Offense:
INDICTMENT                                                                30.02 Penal Code
Date of Offense:
6120120t8
Deeree ofOffense:                                                         Plea to Offenee:
zND DDGREE FELOI{Y ENHANCED TO A                                          NOT GUILTY
lsr DEGREE FELO\IY
Vçrdict ofJu$L
GUILTY
Plea tp I'i Enhancement                                           Plea to 2nd EnhancemenVHabitual
Paracraoh:                              TRUE                      Paragra oh:                                              N/A
Findiugs on l"t Enhancement                                       Findings on lnd
Paragraph:                              TRUE                      Enhancement/Habitual Paragraph                           N/A
Punished Assessed by:                             DateSentence Imoosed:                              Date Sentence to Commence:
JURY                                                6lt4l20t4                                                        t4
Punishment and
of Conñnemeut:
                              TWELVE (12) YEARS INSTITUTIONAL DIVISION, TDCJ
                                          THIS SENTENCE SHALL RUN             CONCURRENTLY,
            SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PI,ACED ON COMMUNITY SUPEBVISION FON                                                N/A    .
Fine:                           0ourt Costs:               Restitution:          Regtitution Pavable to:
    N/A                                                     N/AVICTIM                 AGENCY/AGENT
 $                   Relmburse compensation paid by Denton County to any appoi nted counsel on this cause,
 All payments previously made to the above assessments are ORDERED credited to the above amounts.
Sex Offender Registration Requirements do not apply to the     ant. TBx. CoDE CBIM. Pnoc. chapter 62.
The ase of the victim at the time of the offenee was      N/A
          From               0612012013        to      0511412074      From                    tÆ

Time      From                                 to                      From                    to                         =
Credited: From                                 to                      From                    to

                   N/A   DAYS        NOTES: N/A
        All pertinent information, ¡ames a¡d aasosomsnts indicatod above are iucorporaSed lnto the laoguage ofthe judgment below by reference,


          This cause was called for trial in Denton County, Texas, Tbe State appeared by her Diatrict Attorney
                                                                                                                                              27

                                      MORGAN 1704-C TRIA.L JDMT(BurgHab-FV          xlEnh)tdcj       Page     I of   4
                                     o                                           o
         Counsel / lVaiver of Qgunsel.lselect one)
X   Defendant appeared in pereon with Counsel.
tr  Defendant knowingly, intelligently, and voluntarily waived the right to representatíon by counsel in writing in open
court.
         It appeared to the Court that Defendant was mentally competent and had pleaded as shovvn above to the
charging instrument. Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The
INDICTMENT, wae read to the jury, and Defendant entered a plea to the charged offense. The Court received the plea
and entered it of record,
         The jury heard the evidence submitted and argument of counsel The Court charged the jury as to ite duty to
determine the guilt or innocence of Defendant, and the jury retired to consider the evidence. Upon returning to open
court, the jury delivered its verdict in the preoence of Defendant and defense counsel, if any.
         The Court received the verdict and OnopnED it entered upon the minutee of ühe Court.

        Punishment Assessed bv Jurv / Court / No electìon (select one)
[l Jury: Defendant entered a plea and filed a written election to have the jury aesess punishment, The jury heard
evidence relative to the question of punishment. The Court charged the jury and it retired to consider the question of
punishment. After due deliberation, the jury wae brought into Court, and, in open court, it returned ite verdict as
indicated above.
! Court. Defendant elected to have the Court assees punishment. After heanng evidence relative to the question of
punishment, the Court asseseed Defendant's punishment as indicated above.
! X" Election. Defendant did not fùe a written election ae to whether the judge or jury should assess punishment.
After hearing evidence relative to the question of punishment, the Court aseessed Defendant's punishment as i¡dicated
above.
        The Court FINDs Defendant committed the above offenee and OBDERS, ADJUDGES AND DECREES that
Defendant is GUILTY of the above offenee, The Court FTNDS the Preeentence Investigation, if so ordered, was done
according to the applicable provisions of TEX. Coos Cnltr'f. PRoc. Art.42.12 $ I,
        The Court Onnpns Defendant punished as indicated above. The Court Onnpns Defendant to pay all fines,
court costs, and reetitution as indicated above.

        Pu ni shment Optiong (se lect .g-,¡re)
[l  Confrnement in State Jail or lnstitutional Division: The Cou¡t OnnoBS the authorized agent of the State of
Texas or the Sheriffofthis County to take, safely convey, and deliver Defendant to the
Director, Institutlonal Division, TDCJ. The Court ORDERS Defendant to be confined for the period and in the
manner indicated above. The Court ORDERs Defendant remanded to the cuetody of the Sheriff of this county until the
Sheriff can obey the directions of thie sentence. The Court, OnlpnS that upon release from confinement, Defendant
proceed immediately to the Ofnîce of District Clerk, Denton County, Texas. Once there, the Cou¡t ORDERS Defendant to
pay, or make arrangements to pay, any remaining unpaid fines, court costs, restitution and any additional fees incurred
as ordered by the Cou¡t above.
! County Jail-Confinement / Confinement in Lieu of Payment: The Cou¡t ORDEBS Defendant immediately
committed to the custody of the Sheriff of Denton County, Texas on the date the sentence is to commence, Defendant
shall be confined in the Denúon County Jail for the period indicated above. The Courü ORDEBS thaù upon release from
confinement, Defendant shall proceed immediately to the Office of District Clerk, Denton County, Texae. Once there,
the Court Ononns Defendant to pay, or make arrangements to pay, any remaining unpaid fïnes, court coets, restitution
and any additional fees incurred as ordered by the Court above.
E n¡ne Only Payment, The punishment aeseesed against Defendant is for a FINE ONLY. The Cou¡t ORDERS
Defendant to proceed immediately ùo the Office of the Denton County, District Clerk. Once there, the Court ORDEBS
Defendant to pay or make arrangements to pay all finee and court costs ae ordered by the Court in this cauee.




                                                                                                                 28

                               MORGAN 1704-C TRIAL JDMT@urgHab-FV     xrEnh)tdcj    Page 2 of 4
                                   o                                         I
        Execution lSuspension of Sentence (select one)
D The Cou¡t Onopns Defendant's sentence EXEOUTED.
tr  The Court ORDEBS Defendant's sentence of confinement SUSPENDED. The Court OßppBS Defendant placed on
community supervision for the adjudged period (above) eo long as Defendant abides by and does not violate the terme
and conditions of community supervision, The order eetting forth the terms and conditions of community supervieion is
incorporated into thie judgment by reference,
        The Cou¡t OBDEBS that Defendant is given credit noted above on thie sentence for the time spent incarcerated,
                            Furthermore. the followins speeial fltndinss or orders apply:
Family Violence wording: REVISED 9.24.08
        THE COURT makee an affirmative finding that the victim of this offense was a family member of the defendant
or a member of the defendant's household,
        The Court FINDS that Defendant wae prosecuted for an offenee under Title 5 of the Penal Code that involved
family vioìence. TEX, CODE CRIM. PROC. A-rt.42.013.
        THE COURT FURTHER FINDS that before the commiseion of the offense alleged in paragraph one of the
indictment, on the 1óth day of July, 2004, in cauee number F-0371665, in Dallas County, Texae, the defendant was
convicted of the felony of Robbery in the Criminal District Court No, 3,

Signed and entered on May 14,2014



                                                         JUDG




Clerk:




                                                                                         Right Thumbprint




                                                                                                            29

                              MORGAN 1704-C TRIAL JDMT(BurgHab-FV   xlÐnh)tdcj   Page 3 of 4
                        APPENDIX B

lMorgan v, State, No. 02-14-00231-CR, 2015 Tex. App. LEXIS 5411 (Tex.
              App.-Fort Worth }/ray 28, 2015, pet. filed)]
No Shepard's SignalrM
As of: June 25, 2015 12:43 PM EDT

                                           MotssÐ-]'ÅIsls
                        Court of Appeals of Texas, Second District, Fort Worth
                        May 28, 2015, Delivered; May 28,2015, Opinion Filed
                                          NO, 02-14-00231-CR

Reporter
2015 Tex, App. LEXIS 5411

DEWAN MORGAN, APPELLANT                    V   THE     the lesser-included assault beyond a reasonable
STATE OF TEXAS, STATE                                  doubt.


Notice: PUBLISH                                        Outcome

Prior History: [*1] FROM THE 2llTH The appellate court modified the trial court's
                                   judgment                      to delete the burglary conviction and to
DISTRICT COURT OF DENTON COUNTY.
                                                       instead reflect a conviction for assault, and it
TRIAL COURT NO, F-20I3-1704-C. TRIAL
                                                       reversed the trial court's judgment on punishment
COURT JUDGE: HON, L. DEE SHIPMAN,
                                                       and remanded the case solely for              a   new
                                                       punishment trial on defendant's               second
Core Terms
                                                       lesser-included assault conviction resulting from
                                                       his acts against the complainant.
apartment, assault, burglary, assault conviction,
lesser-included, door, commit                          LexisNexis@ Headnotes

Case Summary                                             Constitutional Law > .., >
                                                         Procedural Due Process > General Overview
Overview
                                                         Criminal Law  & Procedure    > Trials > Verdicts >
                                                          General Overview
HOLDINGS: []-The evidence was
uncontroverted that defendant lived at an                Criminal Law & Procedure > .,. >
apartment and kept      his   possessions inside it;     Review > Substantial Evidence > Sufficiency of
                                                         Evidence
[2]-Because there was no evidence that defendant's
tenancy at the apartment was terminated before           Evidence   >   Burdens   of Proof > Proof   Beyond
his arrest, but there was evidence in the form of        Reasonable Doubt
the complainant's testimony that she specifically        Evidence > \üeight   & Sufficiency
did not intend to terminate defendant's tenancy,
the evidence was insufficient to support               I/N/ In its due-process review of the sufficiency
defendant's conviction for burglary of a habitation;   of the evidence to support a conviction, the
[3]-The evidence was sufïicient to support an          appellate court views all of the evidence in the
assault conviction beyond a reasonable doubt;          light most favorable to the verdict to determine
[4]-In this unique situation, because the completed    whether any rational trier of fact could have found
assault was the most severe lesser-included offense    the essential elements of the crime beyond          a
available, the evidence satisfìed the elements of      reasonable doubt.
                                                 2015 Tex, App. LEXIS 5411,   *l


  Criminal Law    &    Procedure   > ... >                      Judges: PANEL: LIVINGSTON,                    C.J,;
  States > Mens Rea     > Specific Intent                       DAUPHINOT and GARDNER,            JJ,

  Criminal Law & Procedure > ... >
                                                                Opinion by: LEE ANN DAUPHINOT
  Criminal Trespass > Burglary > Elements

HN2 A person commits the offense of burglary of                 Opinion
a habitation if he enters a habitation without the              After two     separate incidents involving his
effective consent of the owner and with intent to               girlfriend, with whom he lived, a jury convicted
commit assault or attempts to commit or commits                 Appellant Dewan Morgan of (1) assault, the
as sau lt. lþ,y. P-e&!tL{)¡ el.e- h"ul-j= JlO2t ( 11, ¡¡1
                                                    u )
                                                                lesser-included offense of aggravated assault, and
(201 1),                                                        (2) burglary of a habitation, charged in separate
                                                                indictments,       trial court cause      numbers
   Criminal Law & Procedure > Criminal Offenses >               F-201 3-l 703-C and F-2013 -1704-C respectively.
   General Overview                                             The jury found the enhancement paragraph true
I/N3  See Tc¿-,PJlll C¡de Ann.               N
                                                                and assessed his punishment at twelve years'
                                                                confinement in the burglary case and at 365 days'
(Supp. 20t4),
                                                                confinement in county jail for the assault. The
   Criminal Law    &   Procedure >       >    Indictments >     trial court sentenced him accordingly. Appellant
    Contents > General Overview                                 does not appeal from his assault conviction and
                                                                sentence in F-2013- 1703-C.
IlN4 See Te.t,.Ç"ede     Cúu, Ptpt:,     At:ttt,   et|,21,Q8    In his sole point, Appellant     contends that the
(200e).                                                         evidence is insufficient to support the jury's
                                                                verdict of guilt in the [*2] burglary case because
   Criminal Law & Procedure > ,., >
                                                                the State failed to prove beyond a reasonable
   Criminal Trespass > Burglary > General Overview
                                                                doubt that he entered the apartment without the
     The term "occupied" in burglary cases is                   effective consent of the owner, That is the only
^ÉIN5
equivalent to possession,                                       element he challenges. Because the evidence does
                                                                not support the jury's determination thatAppellant
   Criminal Law & Procedure > .,, >                             lacked the effective consent of the owner when he
   Criminal Trespass > Burglary > General Overview              entered the apartment, in which he was a cotenant,
                                                                but Appellant admits to assaulting Complainant
fINó    Possession must be determined immediately               and the eviclence is sufficient to support that
prior to and not during a break-in.                             lesser-included offense, we modify the trial court's
                                                                judgment in this case, F-2013-1704-C, to delete
Counsel: FOR APPELLANT:                      J.   STANLEY       the burglary conviction and to instead reflect an
GOODWIN, DENTON, TEXAS,                                          assault conviction. We reverse the trial court's
                                                                judgment as to punishment and remand this case
FOR STATE: PAUL JOHNSON, CRIMINAL                                solely for a new punishment trial on this second
DISTRICT ATTORNEY; CATHERINE LUFT,                               assault conviçtion resulting from Appellant's
CHIEF OF THE APPELLAIE SECTION; YAEL                             actions against Complainant.
ZBOLON, MICHAEL GRAVES, LINDSEY
SHEGUIT ASSISTANT CRIMINAL DISTRICT                             Brief Facts
ATTORNEYS FOR DENTON COUNTY,                                    Appellant moved into Complainant's one-bedroom
DENTON, TEXAS,                                                  apartment, and after he found a job, he paid the
                                                                                                      Page 2 ol 5
                                       2015 Tex, App. LEXIS 5411,'Fz



electric bill and miscellaneous household expenses     Appellant tried the doorknob, tried his key,
while Complainant paid the rent. No one other          knocked on the door, and rang the doorbell but
than Appellant and Complainant lived in the            was unable to open the door, and Complainant
apartment, although Appellant's children stayed        refused to open the door for him. He threw
there when they came to visit him. Both                something at the side window and broke it, Then
Complainant and Appellant had a key     [*3] to the    he kicked the door until it opened, and he went
apartlnent,                                            inside the apartment. Complainant and Appellant
One day Appellant and Complainant got into an          fought and hit each other, and Appellant bit her
argument in the living room, and Appellant slapped     left breast. At trial, Complainant remembered
her, Complainant called the police. When they          Appellant's grabbing her but did not remember
arrived, she gave them a written statement. In the     his punching her or choking her, although in her
statement, she said that after Appellant slapped       written statement, she had said that he punched
her, she called the police, At trial, she admitted     her and choked her. She had called 911, and the
that she had also said in her written statement that   recording of that telephone call was admitted into
he had gone to the kitchen and returned with a         evidence.
knife, but she testified that that part     of her
statement was untrue, Appellant left the apartment     On cross-examination, Complainant testified that
but returned to live with complainant the     same     when she locked the apartment door, her intent
day.                                                   was not to kick Appellant out of the apartment
                                                       forever but rather "to have a cooling-off 1+5¡
A couple of months later, the couple had another
                                                       period." She also testified that at the time of the
problem. Complainant testified that she and
                                                       incident, Appellant lived in the apartment with
Appellant had had words that morning because he
                                                       her, kept personal possessions there, and had his
wanted her to take money from him for some of
                                                       own key to the apartment. He had spent the night
the household bills, but she refused the money.
                                                       before the incident in the apartment.
After work, Complainant and Appellant ran into
each other at a convenience store near the             The apartment lease showed Complainant as the
apartment. Appellant asked Complainant to wait
                                                       leaseholder of the apartmentt Appellant was not
outside for him because he wanted to talk to her.
                                                       shown as a resident.
She did not want to talk to him, so instead of
waiting, she went to the home of Dee, a former         No Evidence of Absence of Owner's Consent
co-worker, picked him up, and then went to her
apartment, where she planned to stay while Dee         HNI In our due-process review of the sufficiency
took her pickup truck to get the [t4] two of them      of the evidence to support a conviction, we view
something to eat. Dee and Appellant saw each           all of the evidence in the light most favorable to
other outside the apartment near the truck ancl        the verdict to determine whether any rational trier
exchanged words, and Appellant came to the             of fact could have found the essential elements of
apartment while Dee left in the truck. Meanwhile,      the crime beyond a reasonable doubt, I HN2 A
Complainant, who had seen Appellant with Dee,          person commits the offense of burglary of a
locked the cleadbolt on the apartment door so that     habitation if he enters a habitation without the
Appellant's key would not work and he could not        effective consent of the owner and with intent to
come inside.                                           commit assault or attempts to commit or commits


(ì'inr. ¿\pp. 20l-l).
                                                                                                Page 3   ol   5
                                                                         2015 Tex. App. LEXIS 5411, *5



assault.2 HN3 "',Owner' lneans a person who . . .                                               testimony that she specifically did not intend to
has title to the property, possession of the property,                                          terminate Appellant's tenancy.
whether lawful or not, or a greater right to
possession of the property than the actor."3 The                                                Applying the appropriate standard of review, we
code of criminal procedure provides that in the                                                 hold that the evidence is insufficient to support
indictment,                                                                                     Appellant's burglary conviction and sustain [*7]
                                                                                                his sole point.
      I1N4 lw]here one person owns the property,
      and another person has the possession of the                                              Modification to Lesser-Included Assault
      same, [t6] the ownership thereof may be
                                                                                                In this  case, because burglary was charged via
      alleged to be in either. Vy'here property is                                              intent to commit an assault, attempt to commit an
      owned in common, or jointly, by two or more
                                                                                                assault, or a completed assault, the jury did not
      persons, the ownership may be alleged to be in
                                                     "necessarily f[i]nd every constituent element of
      all or either of them.a                        th[e] lesser offense,"e That is, we do not know
                                                     which burglary theory the jury relied on in
I1N5 The term "occupied" in burglary cases Ís
                                                     reaching its verdict.r0 Appellant conceded during
equivalent to possession,s
                                                     his opening statement to the jury, however, "And
Here, Appellant was a cotenant of Complainant there's the third offense, the assault which was
when she locked the door and he kicked it in, The part of the burglary, which you will hear for
testimony shows that Appellant was either a yourself evidence to prove that he is guilty of.
tenant at will or a tenant at sufïerance,u The There[ are] three offenses. He is guilty of the
evidence is uncontroverted that he lived at the assault. That will be very clear to you." Appellant
apartment and kept his possessions inside it, As also admits in his brief that he committed the
 this court has previously explained, HN6 lesser-included offense of assault; concedes that
"[P]ossession must be determined immediately the evidence is "clearly sufficient" to support an
prior to and not during the break-in."7 As a tenant, assault conviction, and requests that this court
Appellant had the right to occupy and control the modify the judgment to reflect that conviction
 apartment until his tenancy was terminated.s There instead of a burglary convictionrr and that we
 is no evidence that Appellant's tenancy was remand this case for a punishment hearing on the
terminated before his arrest for the incident, but assault conviction. Further, we hold that the
 there is evidence in the fbrm of Complainant's evidence, detailed above, is sufficient to support

'    :[çn, l]criiù     Ço_qþ     AIu, $ --l().!-l?(irllll,     tl)   (west 201 l).
.r
     /r/   N 1.07(î)(.ì5)(West Supp.20l4).
o    !."_x, l"luql"ç   Í.ìúlr,   llr;p"ç-, 1\1¡¡1,   itil, ll,Q.$   (West 2009).



o    trr,tU,,(.-501 Sl&2_d_¿f_E2l; Ptttt,t.Dutvt.419S.\t,2d4l'l .121 ('I'cx. Cir,.¡\pp.-'lyL-rI9(j7.wlitrcf'drll.qì; 49Tex.Jur.3d
Inndlord and Tenant $$ l3-14 (2009).

' l"¡,xr!:.SLl!Lr: 5l¿4¿:. :155 S-.Ì/-3cl 9.18, 91.ì .n.2 ('l'cx, Ano.-lìrrt \\brth 2011. pct. rcf'd).
' See å1.í_¿**1Q! S-,-lñ'.2_-{lt-ï23; A!!tlL,5-&t44J-?fq\-Çr-ìru242, 2a-1. 15 S.W. 7l-l-.712                               (1898).
e See 'l'hornton v. State.425 S.W.3d 289.298-99 (Tcx. Crin. Aon.2014\.
 ro See Ro¿lr¡løez v. Støl¿.454 S.W,3d 503.,5t0 (Tex. Crim. Aop,20l5) (op. on reh'g).
"     Se¿lìúlr.r,,/"/,,,          r,/,                                       . Clt.   llll.lllli'l!r.72   L. Ed. ld 652 (l9lìl).
                                                                                                                                        Page 4 of 5
                                               2015 Tex, App. LEXIS 5411,"7



an assault conviction beyond a reasonable doubt.l2              conviction resulting from            his acts against
In this unique situation,     because the completed             Complainant.
[*8]        assault is the most severe lesser-included
                                                                 lsl Lee Ann Dauphinot
offense available, the evidence satisfies the
elements of the lesser-included assault beyond a                 LEE ANN DAUPHINOT
reasonable doubt, Appellant conceded guilt of the
lesser-included assault at trial and on appeal, and              JUSTICE
he seeks this relief, we modify the trial court's
judgment in F-2013-1704-C to delete the burglary                 PANEL: LIVINGSTON, C,J.; DAUPHINOT and
 conviction and to instead reflect a conviction for
                                                                 GARDNER, JJ.
 assault, and we reverse the trial court's judgment              PUBLISH
 in F-2013-1704-C on punishment and remand this
 case solely for a new punishment trial on                       DELIVERED: May 28,2015
Appellant's second lesser-inclucled                  assault




 tz   SeeThornton,425S.W.3dat300iseealso./¿rr:Å.rr¡¡r.441   t.ì,S.¡t319.99S,Ct.4t2789; /.)¿åå,r.434S.W.3dat   l7t).
                                                                                                                      Page 5   ol   5
          APPENDIX C

[Texas Jurisprudence: Landlord and Tenant

  49 Tex. Jur. Landlord and Tenant $ l3
            (Tenancy at Will)l
                                          4-9-   Tpx   lur   l¿nd.lp:rd a-nd Tpnant þ 13

Texas .lurisprudence               >   Inndlord and Tenqnt      > L Ovemiew of Landlord a.nd Tena.nt Relat¡onship >                                  C,

Kínds oÍ Tenancies


Author
Amy G, Gore, J.D., of the staff of the National Legal Research Group, Inc., Tammy E. Hinshaw, J,D.,
Elizabeth Williams, J.D.

$ 13 Tenancy at will

One in lawful possession of premises by permission of the owner or landlord and for no fixed term is
a tenant at will.nr

Illustration: A tenancy at will was found in an action by tenants seeking enforcement of a long-term
lease of gas station property, where the evidence was insufficient to support the jury's finding that the
parties had orally agreed to a 15-year lease with a 5-year option. The testimony was clear that no
agreement as to terms had been reached by the parties; following negotiations, the landlord had sent
a proposed written lease to the tenants who had changed the terms ancl sent the lease back, but the
landlord had never received the modified lease'"2

A tenant at will has no certain or sure estate; the lessor may put the tenant out at any time,n3 Thus, the
distinguishing characteristic of a tenancy at will is uncertainty as to the duration of the tenant's holding
of the premises.''a In this respect, a tenancy at will differs from a renting for a periodic term, such as
from month to month.ns Moreover, in contrast to a tenant at sufferance,''6 a tenant at will possesses the
property with the owner's consent,nT




nr   West'* Key Number Digest, Landlord and Tenant lwestkeylllT' ll8
Texas Fonns Legal and Business $ 9:126 (Lease of indelinite duration -- Tenancy at will)
West's Texas Forms, Lancllorcl ancl Tenant to Beyer, l5 West's Tex. Forms: Real Property              li   16.   l0    (Lease term -- Tenancy at will)

er¡ls_Cqrz¡i_lueitr¡crrrs. t¡c_v. N4adaliiL_9Jl_l-W2dj_9fft¡.11:¿.-SLrn ¡\rrtonio 1996r. writdenicd,
                                                                                                      (Mar.2l, 1997):ICM Morte'
Corp.v.Jacob.902S.W.2d527(Tex'App.ElPaso 19941' writdenied,(Aug'            I' 1995); Frndev  v- Lcc, 8iì0 S. )rl llØ lTr:x Anrr Iìl
lht",J l1ì1I,1,),, wril denied, (Oct. 13, 1994).
i2                                                                             writ denied, (Jan.2'7, 1993).
n3
      ICM Morte. Corp,        v,   Jacob,902 S,W.2d 527 (Tex, App' El Pøso 1994), writ denied' (Aug,                  I'   1995).

t14
      ltrrh¡UrþS r,Lqrllllr-12jlhL446.Ztl-S-_W¿d-107_f]_21!l Urbtrn       r,. Clrarr'le,v.   106 S.W,2d l-5tì (Tex. Cliv. Alrp. Eastlantl 1947). writ
refused n.r.e., (Feb.   ll,   1948).



As to periodic tenancies, sec $ I2.
n6    $   14.

n7    ICM Morts. Coro.        v.   facob,902 S.W.2d 527 (Tex. App. EI Paso 1994), writ denied, (Aug.                  I,   1995).
                                                                   49 Tex Jur Landlord and Tenant $ l3



There are almost an indefinite variety of ways in which a tenancy at will may be created,ns Any lease
for an uncertain term is, prima facie, a lease at will,ne A lease of property that permits the lessee to
occupy the property as long as the lessee may desire creates a tenancy at will.nro Moreover, a tenancy
at will exists where premises are occupied pending the performance of formalities that attend the
execution of a lease,nlì and in some circumstances, where one who has occupied premises during a
definite term holds over with the permission of the landlord.nr2 A lease in general tenns to run until
the sale of the premises or the happening of a similar contingency is a tenancy at will only,''r3

A tenant's continued possession of land covered by a prior lease but omitted fiom a succeeding lease
is as a tenant at willnla or at sufferance,nt5

Reference
West's Key Number Digest, Landlord and Tenant lwestkeylT0 1o73, 113 to                                                             ll5,   117       to   119

A,L.R. Index, Landlord and Tenant
West's A.L,R. Digest, Landlord and Tenant [westkey]70                                                          to73, ll3 to ll5,   117   to   ll9
futt ,ltu,.?d,           !--tttulJtttt!-u¿tr[ 7i:"r:¿.ttt./ \\S           Ll!) to l2-4
C,J,S., Landlord and Tenant $$ 24 to 28,208 to 294
Landlord' s Recovery of Damages f'or Tenant's Wrongful Holding over of Leased Premises, 68 Am. Jur.
Proof of Facts 3d I
Texas Forms Legal and Business $$ 9:119 to 9:126,9:105
'West's
        Texas Forms, Landlorcl and Tenant to Beyer, l5 West's Tex. Forms: Real property $$ 16.8 to
l6.rl

Supplement

Cases
Lease for term "equal to remainder of tenant's natural life, or until such time as she voluntarily vacates

 ì8
          !þUþ ulgurlLtr)u!-r!t. LlÉ--(lo.- tìf-'l'cx-=ì!')-l ¡i.!.)ù'.                 ll)l    Ll   il9.ll.
rìe       l   loldonlbc r. l-urino. 124              446. '79 S W        2rl 107 i l9l5    r.

nl0

 l_!)1ll writ relused n,r.e., (Feb. 11, 1948).
.r    I Mtkqylz rr ll,rr¡l¡¿122!-!!y-9ó8 üi¡,Or,4l:!JÞt                                         Worth It)2I      r.




('l'cx. I 980).

As to holding over, generaììy, see $$ 291 to 300.
ilr'r         Lcl v. tlcr.nan<Jcz. l0'Icx, l-ì7. ltì-5.1 WL l28t)              (18.531:                                                                            writ


 1922).
 n   l4
              4,,& A, l-jgqg¡ sß:rr:l l:,   l,)r¡t-c.it¡1"   3rì't $.)v.2"d 7'1il (1.'r.!li::, Atu-l, [);tLlit,l      l()rrll
 nl5
              $   14.
                                                                                                                                                          Page   2 ol   3
                                     49 Tex Jur Landlord and Tenant $ l3



the premises," created tenancy at   will terminable at any time at will of either party. EfÏþl v..Rosberg,
JþA-S.W*A62(t    lJþt AUt    Dullls2-QLzJ reh'g overruled, (Mar, 22,2Q12),

A lease must be for a certain period of time or it will be considered a tenancy at will. ldÍel   v, Rt¡sberg.
36!) S,W3d 6?ó" tïht, Al¿p. Dctl.!"(¿;' 20!2), reh'g overruled, (Mar, 22,2012).

Tenants were precluded from invoking the doctrine of promissory estoppel to bar the application of the
statute of frauds to an alleged oral representation by landlord that tenants could stay on leased lake lots
as long as they wanted, absent a showing that landlord promised to sign a written document that
complied with the statute of frauds by setting out an end date for the leases' duration. Pxn,idence Lctntl
S< t yjc-qt- LLÇ-y,Jo!!!!-l5l--S-t/Øld- 5j-8-!lþ¿,-App. Eus' tl u tt tl 20 I I ).


A tenant at will has no certain or sure estate, and the lessor may put him out at any time. A,spcttu'rnd

review filed, (Apr. 26,2011) and petition for review filed, (May 26,2011)'

A tenant at will, in contrast to a tenant at sufferance, possesses the property with the owner's consent,

petition for review filed, (Apr. 26, 2011) and petition for review filed, (May 26,2011).

Source: V/EST GROUP
Texas Jurisprudence Copyright @ 2014 West Group




                                                                                                   Page 3 ol'3
          APPENDIX D

[Texas Jurisprudence: Landlord and Tenant

  49 Tex. Jur. Landlord and Tenant $ 14
        (Tenancy at Sufferance)l
                                             49_     Tcx Jar,,l¿tndlor_d aad Tenøtú                              þ    14"

'fexas .lurisprudence             >    Inndlord a.nd Tenant                > L Ovemiew of Landlord ønd Tenant Relationship >                                     C.
Kinds oÍ Tenqncies

Author
Amy G. Gore, J,D., of the staff of the National Legal Research Group, Inc,, Tammy E. Hinshaw, J,D,,
Elizabeth Williams, J.D.


$ L4 Tenancy at sufferance
A   tenant who remains in possession of the premises after terrnination of the lease occupies
"wrongfully"and is said to have a tenancy at sufferance,nr Thus, fbr example, a tenancy at suffèrance
is createcl and exists where a person who has entered as a tenant for a term holds over after the
expiration of the term.n2 So, too, a person holding over afler a judgment divesting him or her of title
to real property is regarded as a tenant at sufferance of the prevailing party,n3 A party that holds over
after an adverse judgment has been rendered against it may, in the alternative, be referred to as a
"permissive tenant,"n4 in addition to a "tenant at sufferance,"''s

A tenant's continued possession of land covered by a prior lease but omitted from a succeeding lease
is as a tenant at sufferance''6 or at will.nT

Distinction: The clistinction between a tenancy at will and a tenancy by sufferance is that in the former
both the entry and the occupancy are lawful, whereas in the latter, although the entry is lawful, the
occupancy is not.ns A tenancy at sufferance is a lesser possessory estate than a tenant at will.''e A tenant
at sufTerance is merely an occupant in naked possession of property afier his or her right to possession

    'Wes('s
''r         Key Number Digest, Lancllorcl ancl Tenant lwestkey]l17, ll9
Landlord's Recovcry of l)arnagcs for Tcnant's Wrongful Holding ovcr of Lcascd Premiscs, 68 Aln, Jur. Proof of Facts 3d                                    I

Wes('s Texas Forms, Lancllord and Tenant to Beyer,                l5 West's Tex, Fonns: Real Propely $             16. I   I   (Lease term -- Tenancy al suftèrance)

Çl¿r"r,l,s.r'   l:,sl-o"¡itt, l,Ì{ s,W.,lùl0l   (-l.p-x,   Anp-hl lliLlll l0llÓl'
A "tenant at sufferance"is one who wrongfully continues in naked possession of property after his or hel right to possession has ceased.
(i!þ,t,,,,l r. Dyuç-cr ñ:lrr,l,:l,qcilLìt s-çll:i"ç"ç1,!.,,9, liE
                                                         '5.w,1!
                                                                         ilI
                                                                  t,l!:¡.Apl' l"çn !]:tlt"ttt ?l)l):[1.
t'2    lntonriùi-q¡-¡4l¡!][ì¡\I-<.llor-.Ll-¡ql!Lalr,(l7-Tcx 24-lS,lY-515 (1S8-0.

As ro holding over, gcncralìy, see $$ 291 to 300.
rrr .\!çlç-d- l:, f.l..Lrç:Lj"qld,-1,,1,'!$,\!l.lr! Z()J ll,ç¡, (lir.ôru, ,t:.it¡tlottrl rL()ól-). writ refused n.r,e,, (Oct. 2,s. 196 l)'
n4 wi!dNl-!-!|Ð!rl 2..() 5-\yjtl!l¿O!¡.--¿\pll.]i'¡¡r\a¡1200.ì                          I
                                  -l
Ccnelally, an occupant of the property holding over al'(er execution of'a deed is considered a permissive ten¿tnt whose right !o possession
is inferior to that of thc party holding title. Nl
,JQ(þ). review denied, (Mar. 23,2007).


'[rxlrkmr        2(X)-] L

n6      A_-&A_l,r_quor-5_tercs rr     l)qu¡¡r-l-Ei_S.lY2rl Lì|.(lc,vCt-r'-,,\Ur Q¡Il¡.s !j)ff-¡.
        $ l3'
"-                                                                             707 (1891).
                                                     49 Tex Jur Landìord and Tenant $ 14



has ceased.nro A tenant at sufferance does not assert a claim to superior title,nrr is not in                          privity with
the owner,nl2 and possesses no interest capable of assignment.''13

Practice Tip: To remove a tenant by sufferance, the new owner must file a forcible detainer suit.nra
 Also, a tenancy at sutlþrance must be repudiated before the adverse possession statutes begin to run
on the lenant's claim for aclverse possession.nl-5

Reference
West's Key Number Digest, Landlord and Tenant [westkey]7O to 73, 113 to l15, 117 to 119
A.L.R. Index, Landlord and Tenant
West's A,L.R. Digest, Landlord and Tenant fwestkey]7O                         to73,    113   to l15,    ll7 to l19
Ant. Jur. 2tl, Lundlr¡rd ¿tncl Tettunt iN                ll0 to 124
C,J.S., Landlord and Tenant $$ 24 to 28, 208 to 294
Landlord's Recovery of Damages for Tenant's Wrongful Holding over of Leased Premises, 68 Am. Jur.
Proof of Facts 3d I
Texas Forms Legal and Business $$                       9:ll9 to 9:126,9:105
West's Texas Forms, Landlord and Tenant to Beyer,                         l5 West's   Tex. Forms: Real property $$ 16.8 to
16.1    1




Supplement

Cases
If    a lease can be terminated at the               will of the lessee, it may   also be terminated at the    will of the lessor.


A tenant at sufferance is merely an occupant in naked possession of property after his or her right to
possession has ceased, does not assert a claim to superior title, is not in privity with the owner, and
possesses no interest capable of assignment. Aq¿¡.u-!&JLel AplrrLualt Çt¿t2,--u-,-l-aituuul-lLtt Jt)

As to tenancy at will, see $ 13.
ne ICM Morts. Corn. v. lacob,902 S.W.2d 527 (Tex. Apo. El Paso 19941, writ denied, (Aug. l, 1995),
nro ICM Morts. Corp. v. Jq.cob. 902 5.W.2¡l 527 (Tex. App. El Paso 1994), writ denied, (Aug. I, 1995); Co'rqìns v. Lco. [ì49 S,W.2d
371ì ('l'cx.   ¡\nn. Ht'¡ust<rn l4th Dist. l99.ll.
nI I ICM Morte. Corp. v. Jacob, 902 S.W.2d 527 (Tex. App. El Paso 19941. writ denied, (Aug. 1, 1995).
nt2 ICM Morte. Corp. v, Jacoh,902 S.W2d 527 (Tex, Aon. El Paso 1994). writ denied, (Aug. I, 1995); (ìoe,qins         v. Lco. 849 S.W.2d
ll]r re¿,App*_l lquQll4lh- At$ 9t31.       .1


nr'ì ICM Mortg. Corp. v. .lacob.902 S.W.2d 527 (Tex, Anp. El Paso 19941, writ denied, (Aug. I, 1995).

 199-{).    writ denied, (May 4, 1995).
As to lorcible entry and detainer, generally, see Tex. Jur. 3d, Forcible Entry and Detainer $$   I to 13.
nl5

                                                                                                                          Page 2 o1 3
                                                     49 Tex Jur Landlord and Tenant $ l4



S.W.3d 621 (Te.r, App. ÍIrntsron l.çt                 Dist.20llt, petition for review filed, (Apr. 26,2011) and   petition
for review filed, (May 26,2011).

A tenant at     sufferance       falls short of being a trespasser only by virtue of having initially been in
possession rightf'ully; he may thus be treated by the landlord either as a trespasser or as a periodic
tenant retroactively to the beginning of the relationship. Aspenv,rtr¡tl Apurtmettt ()orp. v. ()rtinntut'h.
!1c, ,1..19 ,S, W.3ri. 62- ! tTc,,r, Apt¿, fltuuleu,hl Ði";t, ZQ-!..1, petition for review filed, (Apr, 26,2011) and
petition for review filed, (May 26,2011).

Second purchaser of apartment complex following foreclosure did not consent to lessee's continued
possession of apartment complex laundry rooms under lease, and thus lessee became a tenant at
sufferance and coulcl not be liable to the second purchaser for breach of lease, where second purchaser
gave lessee written notice that lease had been terminated by foreclosure and requested that lessee
vacate laundly rooms, second purchaser did not cash checks received from lessee, second purchaser
filed forcible entry and detainer suit against lessee, and second purchaser continued to assert that lessee
wasrequiredtovacateproperty, A,slten\yootlApurttnent()orp.t'.()oinmat.'11, Ittt'.,-l49S.W,.ld62l (Te.u.
t\,nn. Hot,t.slrnt   r'/   /)i,ç/   2() I I   I   petition for review filed, (Apr. 26,2011) and petition for review filed,
(May 26,2011).

The general common law rule provides that a tenant who remains in possession of the premises after
termination of the lease occupies "wrongfully" and is said to have a tenancy at sufferance.'llq,lor r.
Çqrl¿çjg.!,-31-4 .1-!TJ"r-l- "),rl-5 (Te,y, Apt¿. frçtLltruuil,2Ql.U, petition for review filed, (Mar' 24,2010).

Source: WEST GROUP
Texas Jurisprudence Copyright O 20 l4 West Group




                                                                                                                Page 3 ol" 3
