                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       No. 07-15-00154-CR


                            CYNTHIA SCHLAPPER, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE

                          On Appeal from the County Court at Law No. 6
                                      Travis County, Texas
             Trial Court No. C-1-CR-13-153034, Honorable Brandy Mueller, Presiding

                                       October 19, 2015

                               MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant, Cynthia Schlapper, was convicted of the offense of criminal trespass,1

and sentenced to serve 45 days in the Travis County Jail with the jail time suspended

while appellant was placed on community supervision for nine months.                 Appellant

presents one issue for our review. Appellant contends that the evidence is insufficient

to sustain the conviction. We will reverse and render.




      1
          See TEX. PENAL CODE ANN. § 30.05(a) (West Supp. 2014).
       The facts of the case are relatively simple. Appellant is an adjacent landowner to

Crosswater Marina in Travis County, Texas. Appellant had an easement for ingress

and egress only across a portion of Crosswater’s land. Appellant and Crosswater have

a lengthy history of disputes and disagreements concerning the easement and

appellant’s entering upon Crosswater’s land.


       In August 2013, appellant was seen on what Crosswater deemed to be its

property. Appellant was confronted and instructed to leave the property and told if she

came back, she would be arrested.        This confrontation was with the manager for

Crosswater, Mr. Roland Adams. Eventually, a criminal trespass case was filed against

appellant.


       The criminal information alleged that appellant:

       on or about August 16, 2013, did then and there intentionally and
       knowingly enter on the property of another, without the effective consent
       of another, to wit: D. Gibson, and the Defendant did then and there have
       prior notice that entry was forbidden.

       Appellant contends that the evidence reflects that D. Gibson is Detective Gibson

of the Travis County Sheriff’s Office. Further, appellant contends that Detective Gibson

did not send a trespass notice letter to appellant until August 26, 2013. Therefore,

according to appellant, there is no evidence that appellant had notice that entry was

forbidden on the day alleged in the information.


       The State has filed a letter brief with this Court that acknowledges the defect in

the evidence regarding the date of notice that entry was forbidden. The State posits

that, by alleging “without the consent of another, to wit: D. Gibson,” it had unnecessarily

increased its own burden. Further, having done so, the State is required to prove the

                                             2
fact alleged, that is, without the consent of another, to wit: D. Gibson. See Curry v.

State, 30 S.W.3d 394, 398 (Tex. Crim. App. 2000). Since the facts demonstrate that the

trespass letter was not sent until after the date of the offense alleged in the indictment,

the evidence is insufficient. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979). Accordingly, we sustain appellant’s insufficient evidence point.


                                       Conclusion


      Having sustained appellant’s issue, we reverse the judgment of the trial court and

render a judgment of acquittal.




                                                Mackey K. Hancock
                                                    Justice


Do not publish.




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