            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-1111-10

                         JAMES MELTON FRAZIER, Appellant

                                                 v.

                                  THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FIFTH COURT OF APPEALS
                          DALLAS COUNTY

               K ELLER, P.J., filed a dissenting opinion.

       We granted review in this case to consider whether a co-owner of property may be convicted

of criminal trespass for remaining on that property after another co-owner tells him to leave.

Because the evidence does not establish beyond a reasonable doubt that appellant was on the

property of “another,” or that he lacked effective consent to be on the property, I would render a

judgment of acquittal.

       A person is guilty of criminal trespass if he “enters or remains on or in property of another,

including residential land . . . without effective consent [and]: (1) has notice that the entry was
                                                                         FRAZIER DISSENT — 2

forbidden; or (2) received notice to depart but failed to do so.”1 The term “another” means “a person

other than the actor.”2 The trespass statute therefore proscribes the conduct of entering or remaining

on “the property of a person other than the actor.” Although the Penal Code defines “owner” as a

person who “has title to the property, possession of the property, whether lawful or not, or a greater

right to possession of the property than the actor,”3 the trespass statute makes no reference to

ownership, and we have held that ownership is not an element of criminal trespass.4 Ownership

might nevertheless be alleged in a charging instrument in order to describe in what way the property

is that of “another.”5

        But what happens if two people are title owners to a parcel of land and each tells the other

to depart, with each refusing depart? Are both guilty of criminal trespass? On the other hand, if a

person who has no right to possession of or interest in the land were to fence it in and occupy it,

would the rightful owner commit a trespass by entering the property without the usurper’s

permission, because “owner” includes “one who has possession of the property, whether lawful or

not?” In Boykin v. State, we explained that we give effect to the plain meaning of statutory language

unless the language is ambiguous or the plain meaning leads to absurd results that the legislature




        1
            TEX . PENAL CODE § 30.05(a).
        2
            Id., § 1.07(a)(5).
        3
            Id., § 1.07(a)(35).
        4
            Langston v. State, 855 S.W.2d 718, 721 (Tex. Crim. App. 1993).
        5
            State v. Kinsey, 861 S.W.2d 383, 384-85 (Tex. Crim. App. 1993).
                                                                          FRAZIER DISSENT — 3

could not possibly have intended.6 I do not believe the plain meaning would make both owners

guilty in the first hypothetical, or the rightful owner guilty in the second, but if it did, those would

be absurd results. In conducting a plain meaning analysis, we read the statutory language in context

and construe the words according to the rules of grammar and common usage.7 The word “another”

is used in conjunction with the phrase “without effective consent.” So a person commits trespass

by being on the property of “another” only if he lacks effective consent from someone who has the

authority to give it.

        In Kinsey, we specifically reserved the question of whether a defendant can trespass on

property to which he has lesser title than the complainant.8 In so saying, we seem to have implied

that a trespass would not occur if the defendant had equal or greater title than the complainant. I am

unaware of any cases construing the current trespass statute as it applies to property with multiple

owners, but some very old cases have addressed the issue of trespass with respect to multiple owners

in various contexts. In Davidson v. Wallingford, the Texas Supreme Court stated that, in order to

evict a defendant from a parcel of land, a plaintiff who was a tenant in common (that is, one of

multiple owners) must show not only his ownership interest, “but also that the defendant has no title

to any interest.”9 In McCuen v. State, we held that a defendant could not be convicted of unlawfully



        6
            818 S.W.2d 782, 785 (Tex. Crim. App. 1991).
        7
         Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2010) (citing TEX . GOV ’T . CODE
§ 311.011(a)).
        8
          861 S.W.2d at 385 (emphasis added, bracketed material substituted for original to change
plural terms to singular).
        9
            88 Tex. 619, 625, 32 S.W. 1030, 1033 (1895).
                                                                         FRAZIER DISSENT — 4

breaking a fence when the fence was on property owned in common between himself and the

complainant.10 On the other hand, our predecessor, the Court of Appeals, held in Zallner v. State that

a landlord can be liable for trespass on property that he has leased to a tenant because the landlord

has no right of entry without the tenant’s permission unless such right had been specially reserved.11

       From a review these cases and the current trespass statute, I conclude that owners who have

an equal interest in the property cannot be criminally liable for trespass unless one of the owners has

been given the exclusive right to possess the property, by agreement or otherwise,12 and a different

owner has infringed on that exclusive right. In other words, all owners of equal status have the

ability to effectively consent to their own entry onto the property unless, by agreement or otherwise,

the right of entry has been vested exclusively in only one or some of the owners. I turn now to

whether the evidence in the present case is sufficient to support appellant’s conviction.

       Under Jackson v. Virginia, evidence is legally sufficient to support a conviction if, “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.”13 In a legal sufficiency

review, the reviewing court must consider all of the evidence.14 We have recently emphasized the




       10
            43 Tex. Crim. 612, 68 S.W. 180 (1902).
       11
            15 Tex. Ct. App. 23, 24-25 (1883).
       12
          For example, the exclusive right of possession could be vested by a temporary court order
in a divorce or a partition proceeding.
       13
            443 U.S. 307, 319 (1979) (emphasis in original).
       14
            Id.; Brooks v. State, 323 S.W.3d 893, 916 (Tex. Crim. App. 2010).
                                                                         FRAZIER DISSENT — 5

need for a “rigorous and proper” application of the Jackson standard.15

       Appellant’s position is that the evidence shows that the property on which he was accused

of trespassing was the family home, formerly owned by his late mother Roylean. He contends that

all of the children—including himself and his sister Claudia, the complainant—now own this land

equally and that he had as much right to be on the property as Claudia did. The affidavit of heirship

that appellant introduced into evidence was signed by Claudia. It is a form with numerous questions,

including the question, “Did the decedent own any real estate in this State.” Following this question,

the answer “no” is circled. The trial judge concluded that this meant that Roylean did not own the

property, and therefore, “there’s nothing to be inherited.” If this affidavit and Claudia’s history of

occupying the property were the only evidence relating to the ownership of the property, then I might

conclude that the evidence is sufficient. But a review of all of the evidence shows otherwise.

       At trial, Claudia herself testified without equivocation that all of Roylean’s children were

record owners of the property:

       [PROSECUTOR]: How did you come to own the residence . . . ?

       [CLAUDIA]: My sister had filled out some papers because the city was gonna take
       the house because of back taxes. And she had the papers filled out, because some –
       I’m on disability.

                                                ***

       [PROSECUTOR]: So who are the record owners of the residence?

       [CLAUDIA]: Delois Frazier, James Frazier, Belinda McBee, Julius Frazier, and
       Charles Ray Frazier.



       15
            Brooks, 323 S.W.3d at 906 & n.25.
                                                                           FRAZIER DISSENT — 6

       [PROSECUTOR]: Are these all your mother’s children?

       [CLAUDIA]:. Yes, ma’am.

                                                 ***

       [DEFENSE COUNSEL]: And you mentioned that there was multiple owners of the
       property?

       [CLAUDIA]: The family, the whole family.

       [DEFENSE COUNSEL]: The family, including Mr. James Frazier?

       [CLAUDIA]: Yes, sir.

                                                 ***

       [PROSECUTOR]: It is not your contention, Ms. Frazier, and just – can you please
       explain to the Court that you are not debating that he has a right to the property, am
       I correct? Okay. You’re not saying that he is not one of the people that inherited the
       house from your mom?

       [CLAUDIA]: Well, it’s – it’s the family house.

       [PROSECUTOR]: Right. Right. And so you’re not saying that he has no right to be
       there?

       [CLAUDIA]: I’m not saying that he don’t – he has all the rights to be there, but he
       – he has all the rights to be there. They come there for birthdays. They come there
       for holidays. They come there for any day, just because days. But it’s fine. But
       when James come the police is on their way. Because James want to draw knife, he
       want to just pick up anything and just erupt everything. It’s not only with me.

       The police officers who testified at trial did not specifically testify that Claudia had told them

that appellant was a co-owner of the property, but their testimony and their conduct that day was

consistent with her having so told them. Officer Chien testified that Claudia claimed to be the owner

of the house; the officer could not recall specifically if she asked appellant if he was a co-owner.

       Sergeant Reginald Franklin testified that he stayed in his vehicle while his subordinates,
                                                                            FRAZIER DISSENT — 7

Officers Chien and Woodburn, handled the situation at the residence. When the officers came

outside, Sergeant Franklin asked what was going on. Sergeant Franklin testified that the officers told

him “there was a guy that wouldn’t leave.” He said that the officers “were trying to I guess figure

out if they could make him leave or what the situation was, and they were about to leave.” Sergeant

Franklin’s testimony that the officers were about to leave is consistent with Claudia’s testimony that

the officers were unwilling to do anything, that they told her that the incident was a civil matter, that

they told her that appellant had “just as much right to live in that house as I did,” and that one of the

officers referred her to their Sergeant when she again pleaded with them to remove appellant from

the house.

        As the officers were preparing to leave, Claudia approached Sergeant Franklin’s vehicle and

explained that appellant would not leave and that she was afraid of him. At that point, Sergeant

Franklin investigated the matter further. During this investigation, appellant said that the house “was

his mother’s house” and “that he had a claim to it.” Sergeant Franklin told appellant that if Claudia

lived there and appellant did not, and Claudia wanted appellant to leave, then appellant was

trespassing, regardless of his “monetary or possessionary situation with the house.” When asked if

he ascertained whether appellant had an ownership interest in the house, Sergeant Franklin

responded negatively and said, “That’s not our job.”

        In light of all the testimony, the affidavit of heirship is simply not sufficient evidence to show

beyond a reasonable doubt that appellant does not have an ownership interest in the property. The

affidavit of heirship makes no statement about who owned the property at the time appellant refused

to leave. The affidavit simply states that Roylean did not own any real property at the time of her
                                                                         FRAZIER DISSENT — 8

death. That statement is not inconsistent with appellant owning an interest in the property. Nor is

the affidavit inconsistent with appellant and his siblings obtaining title to the property from Roylean

before or at the time of her death. Roylean could have transferred it to them before death, or she

could have given them a future interest that would have caused full ownership of the property to vest

automatically at death, so that there would be no real property in her estate.16 So, even if believed,

the affidavit is not inconsistent with Claudia’s testimony that the home was the family home and all

of the children owned it together.

       The affidavit is inconsistent with the notion that the children inherited the property.

Claudia’s testimony is consistent with the property passing to the children by inheritance, but her

testimony is also consistent with the property passing to the children by an instrument that conveyed

a present or future interest in the property.17 Appellant’s testimony, taken as a whole, is likewise

consistent with either scenario.18 But even if Claudia and appellant had both testified that they

       16
          See TEX . PROP . CODE § 5.041 (“A person may make an inter vivos conveyance of an estate
of freehold or inheritance that commences in the future, in the same manner as by a will.”); Terrell
v. Graham, 576 S.W.2d 610, 612 (Tex. 1979) (prior version of current statute “allows estates in
futuro to be conveyed in derogation of the common law rule which prohibited such conveyances.
Under this statute the grantor conveys the title and interest specified in his deed, but full enjoyment
and possession is not had by the grantee until the death of the grantor.”).
       17
           See TEX . PROP . CODE § 13.001(b) (“The unrecorded instrument [of a conveyance of real
property] is binding on a party to the instrument, on the party’s heirs, and on a subsequent purchaser
who does not pay a valuable consideration or who has notice of the instrument.”).
       18
         Appellant’s testimony on redirect suggests that the children obtained the property by some
method other than inheritance:

       [DEFENSE COUNSEL]: And when did you – this affidavit of heirship, when did
       you inherit the house? Was that before this incident?

       [APPELLANT]: No. My mother did that years ago. . . . She did that back in the 60’s
                                                                         FRAZIER DISSENT — 9

obtained the property through inheritance, the affidavit of heirship is not affirmative evidence that

they did not own the property; at best, it negates the idea that inheritance is the method by which the

property passed.

       Regardless, Claudia’s testimony was clear that all of Roylean’s children—including

appellant—owned the property. A rational jury could not accept her testimony that she had the right

to be on the property while ignoring her testimony of where that right came from—ownership

acquired from her mother—and who else also had ownership in the property. In fact, the conduct

of the police suggests that either she told them that appellant was a co-owner of the property, or that

appellant said so and she did not contradict him.

       Even the prosecutor did not dispute appellant’s ownership interest but argued that he was a

trespasser nevertheless: “There’s been no debate, and no one is trying to force the defendant off of

the property or cheat him out of his ownership interest in the house. However, the possessory

interest is lying solely in the – in Ms. Frazier, because the house was left to them all.” Later, the

prosecutor continued, “At this time it’s not Ms. Frazier’s contention today, nor is it then, that he

could never come to the residence. However, she lives there apparently, and he did not have the

right to come there on that day.”

       That leaves only the question of whether there is evidence that Claudia was granted the right

to sole possession of the property by agreement or otherwise, and appellant infringed on that right

to sole possession. Despite the prosecutor’s suggestion to the contrary in argument, there was no

evidence of an agreement or anything else that would confer upon Claudia a right to sole possession



       . . . And at that time I reviewed those papers.
                                                                       FRAZIER DISSENT — 10

of the property.

       There was evidence at trial that appellant was a troublemaker and that Claudia had reason

to be afraid of him. But as far as the law of criminal trespass is concerned, even a troublemaker has

the right to use his own property unless the exclusive right to use that property has been assigned to

someone else. I would hold that the evidence is legally insufficient to establish that appellant

committed the offense of criminal trespass.

       I respectfully dissent.


Filed: April 20, 2011
Do Not Publish
