                                                                            PD-0758-15
                                                        COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                        Transmitted 10/8/2015 1:34:51 PM
                                                          Accepted 10/8/2015 2:03:26 PM
         IN THE COURT OF CRIMINAL APPEALS OF         TEXAS                ABEL ACOSTA
                                                                                  CLERK

DEWAN MORGAN,                §
   APPELLANT                 §
                             §
    v.                       §               No. PD-0758-15
                             §
THE STATE OF TEXAS,          §
   APPELLEE                  §
                                                              October 8, 2015




                STATE'S BRIEF ON THE MERITS


     FROM THE SECOND DISTRICT OF TEXAS AT FORT WORTH
               IN CAUSE NUMBER 02-14-00231 -CR
                            AND
          FROM THE 211 TH JUDICIAL DISTRICT COURT
                    DENTON COUNTY, TEXAS
                IN CAUSE NUMBER F-2013-1704-C

                                 PAUL JOHNSON
                                 Criminal District Attorney
                                 Denton County, Texas

                                 CATHERINE LUFT
                                 Assistant Criminal District Attorney
                                 Chief, Appellate Division

                                 YAELZBOLON
                                 Assistant Criminal District Attorney
                                 1450 E. McKinney, Suite 3100
                                 Denton, Texas 76209
                                 State Bar No. 24077065
                                 (940) 349-2600
                                 FAX (349) 2751
                                 yael .zbolon@dentoncounty.com
                       IDENTITY OF PARTIES & COUNSEL

Appellant ........................ ............................. DEWAN MORGAN

                                                   CHRISTOPHER ABEL
                                                   2609 Sagebrush Drive
                                                   Suite 202
                                                   Flower Mound, Texas 75028

                                                   APPELLATE COUNSEL

                                                   DEREKADAME
                                                   1512 East McKinney Street
                                                   Suite 102
                                                   Denton, Texas 76209

                                                   TRIAL COUNSEL

Appellee ....................................................... THE STATE OF TEXAS

                                                   PAUL JOHNSON
                                                   Criminal District Attorney

                                                   CATHERINE LUFT
                                                   Assistant Criminal District Attorney
                                                   Chief, Appellate Division       ·

                                                   YAELZBOLON
                                                   Assistant Criminal District Attorney
                                                   State Bar No. 24077065
                                                   1450 East McKinney, Suite 3100
                                                   Denton, Texas 76209
                                                   (940) 349-2600
                                                   FAX (940) 349-2751
                                                   yael .zbo lon@dentoncounty.com

                                                   APPELLATE COUNSEL

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

IDENTITY OF PARTIES & COUNSEL .................................................................. i

INDEX OF AUTHORITIES .................................................................................... iv

STATEMENT OF THE CASE .............. .. .......................................... ................. ...... I

STATEMENT REGARDING ORAL ARGUMENT ............................................... 2

ISSUES PRESENTED .............................................................................................. 2

                                    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?

                                   GROUND TWO:
         To qualify 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?

STATEMENT OF FACTS ........................................................................................ 2

SUMMARY OF THE STATE'S ARGUMENT ....................................................... 4

ARGUMENT ............................................................................................................ 5

THE STATE'S GROUND ONE ............................................................................... 5

    Elements of burglary of a habitation ........... ......................... ................................ 5

    The Penal Code aptly defines who qualifies as
    t h e " owner" o f a h ab.1tat1on
                                  . ................................................................................. . 5

    As the Penal Code's definition is expansive, it is improper
    to utilize common law property principles to determine
    who qualifies as the owner under a criminal statute ............................................ 7


                                                                                                                       11
    The Second Court of Appeals improperly applied common law
    property principles in deciphering who qualified as the owner
    of the habitation .................................................................................................... 9

    Moreover, as the jury did not receive an instruction nor was
    any evidence presented regarding common law property principles,
    the Second Court of Appeals improperly acted as a thirteenth juror
    by applying such principles ................................................................................ 11

Tlffi STATE'S GROUND TW0 ............................................................................ 13

    Revocation of effective consent to enter ............................................................ 13

    Once consent is effectively revoked, entry-even
    mere seconds later- is unlawful ........................................................................ 14

    Appellant did not have consent to enter Regina's apartment
    before he broke in ............................................................................................... 16

PRAYER FOR RELIEF .......................................................................................... 18

CERTIFICATE OF COMPLIANCE ...................................................................... 19

CERTIFICATE OF SERVICE ................................................................................ 19




                                                                                                                         111
                                   INDEX OF AUTHORITIES



Statutes, Codes, and Rules

Tex. Code Crim. Proc. Ann. art. 21.08 (West 2009) ................................................. 7

Tex. Penal Code Ann.§ 1.07(a)(l 1) (West Supp. 2014) ........................................ 13

Tex. Penal Code Ann.§ 1.07(a)(19)(A) (West Supp. 2014) ................................... 16

Tex. Penal Code Ann. § 1.07(a)(35)(A) (West Supp. 2014) ................................. 6, 7

Tex. Penal Code Ann. § l .07(a)(39) (West Supp. 2014) .......................................... 6

Tex. Penal Code Ann.§ 30.02(a)(l) (West 2011) .................................................... 5

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

Tex. Prop. Code Ann.§ 92.001(West2014) .......................................................... 10



Cases

Alexander v. State
  753 S.W.2d 390 (Tex. Crim. App. 1988) ............................................................... 6

Allison v. State
  113 S.W.3d 476 (Tex. App.-Houston [1st Dist.] 2003, no pet.) ........................ 13

Carrasco-Flores v. State
 No. 08-13-00231-CR, 2015 Tex. App. LEXIS 4982
 (Tex. App.-El Paso May 14, 2015, no pet.)
 (not designated for publication) ............................................................... ;.... 8, 9, 16

Dewberry v. State
 4 S.W.3d 735 (Tex. Crim. App. 1999) ................................................................. 11




                                                                                                             IV
Dominguez v. State
 355 S.W.3d 918 (Tex. App.-Fort Worth 2011, pet. refd) ....................... 8, 14, 16

Ellett v. State
  607 S. W.2d 545 (Tex. Crim. App. 1980) ............................................................. 17

Garza v. State,
 344 S. W.3d 409 (Tex. Crim. App. 2011) ............................................................... 6

Gregg v. State
 881 S.W.2d 946 (Tex. App.- Corpus Christi, 1994, pet. refd) ............................ 8

Harris v. State
 471S.W.2d390 (Tex. Crim. App. 1971) ............................................................. 15

Hathorn v. State
 848 S.W.2d 101 (Tex. Crim. App. 1992) ............................................................. 13

Hooper v. State
 214 S.W.3d 9 (Tex. Crim. App. 2007) ................................................................. 11

Hudson v. State
 799 S.W.2d 314 (Tex. App.- Houston [14th Dist.] 1990, pet. refd) ................... 8

Jackson v. Virginia
  443 U.S. 307, 99 S. Ct. 2781, 61L.Ed.2d 560 (1979) ....................................... 11

Laster v. State
 275 S.W.3d 512 (Tex. Crim. App. 2009) ............................................................. 11

Mack v. State
 928 S.W.2d 219 (Tex. App.- Austin 1996, pet. refd) ................................ 7, 8, 15

Morgan v. State
 465 S.W.3d 327, No. 02-14-00231-CR, 2015
 Tex. App. LEXIS 5411 (Tex. App.- Fort Worth
 May 28, 2015, pet. granted) ........................................................................... passim




                                                                                                             v
Preston v. State
 No'. 14-04-00151-CR, 2005 Tex. App. LEXIS 500 (Tex.
 App.-Houston [14th Dist.] Jan. 15, 2005, no pet.) ............................................. 16

Ramirez v. State
 429 S.W.3d 686 (Tex. App.-San Antonio 2014, pet refd) ............................... 15

Rangel v. State
 179 S.W.3d 64 (Tex. App.-San Antonio 2005 , pet. refd) ................................ 17

Salazar v. State
 284 S.W.3d 874 (Tex. Crim. App. 2009) ............................................................. 15

Stanley v. State
  631S.W.2d751 (Tex. Crim. App. 1982) ............................................................... 8

Tatum v. State
 649 S.W.2d 139 (Tex. App.-Fort Worth 1983, pet. refd) ................................. 13

Taylor v. State
 508 S.W.2d 393 (Tex. Crim. App. 1974) ............................................................. 13


Other Authorities

49 Tex. Jur. Landlord and Tenant§ 13 (2014) .................................................... 9, 10

49 Tex. Jur. Landlord and Tenant§ 14 (2014) ........................................................ 10




                                                                                                    VI
           IN THE COURT OF CRIMINAL APPEALS OF TEXAS

DEWAN MORGAN,                                §
   APPELLANT                                 §
                                             §
      v.                                     §         No. PD-0758-15
                                             §
THE STATE OF TEXAS,                          §
   APPELLEE                                  §



                       STATE'S BRIEF ON THE MERITS


TO THE COURT OF CRIMINAL APPEALS :

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

Attorney, and respectfully submits its brief on the merits urging reversal of the

judgment of the Second District Court of Appeals.

                           STATEMENT OF THE CASE

      After a jury convicted Appellant of burglary of a habitation and sentenced

him to 12 years in    jail ~   Appellant appealed to the Second Court of Appeals.

Finding the evidence legally insufficient, the Second Court of Appeals released a

published opinion reversing Appellant' s conviction for burglary of a habitation but

affirming Appellant's lesser-included assault conviction. This Court granted the

State's petition for discretionary review.




                                                                                   I
              STATEMENT REGARDING ORAL ARGUMENT

      This Court has granted oral argument. Because the issues presented in this

case have yet to be addressed by this Court, the State believes oral argument would

be beneficial to the parties and Court.

                               ISSUES PRESENTED

      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 qualify 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?


                            STATEMENT OF FACTS

      As their relationship progressed, Regina Raglin invited her boyfriend,

Appellant, to live with her at her apartment. While 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). Appellant 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 41 ).       Fearing

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

over that evening after work (3 R.R. at 40-43). When Appellant came home, he

saw Regina's friend in the parking lot and the two exchanged words (3 R.R.


                                                                                 2
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; Appellant 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, 18).   Regina was on the phone with 9-1-1, but quickly

retreated to her bedroom (3 R.R. at 50).

      Appellant grabbed, punched, scratched, choked Regina, and bit her breast

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

choking Regina with his left hand, Appellant used his right hand to punch her in

the face (4 R.R. at 63). When Officer Kenny Lopez arrived on scene, he could

hear Regina screaming for help (4 R.R. at 45). Upon entering the apartment,

Officer Lopez noticed the door was kicked in and saw Appellant on top of Regina,

assaulting her (4 R.R. at 46, 51 ). Officer Lopez verbally commanded Appellant to

leave and took him into custody (4 R.R. at 46).




                                                                               3
                SUMMARY OF THE STATE'S ARGUMENTS

      By turning to common law property principles rather than relying on the

authoritative definition of an "owner" of a habitation as defined by the Penal Code,

the Second Court of Appeals improperly broke away from precedent. Further, its

application of common law property principles was flawed , and by considering

principles that were never presented to the jury, the Second Court of Appeals acted

as a thirteenth juror in applying the sufficiency standard.

      Applied properly, Regina Raglin qualified as the owner of the apartment

under the Penal Code.      Moreover, by her actions and her testimony, Regina

effectively revoked Appellant's consent to enter her apartment. Therefore, when

Appellant broke in and assaulted her, Appellant committed burglary of a

habitation.   Accordingly, the Second Court of Appeals erred by reversing

Appellant's burglary of a habitation conviction.




                                                                                   4
                                   ARGUMENT

                         THE STATE'S 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?

Elements of burglary of a habitation

      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 2011).

      In its opinion, the Second Court of Appeals focused on two primary

elements of burglary of a habitation: (1) who is the owner? and (2) when is consent

revoked? See Morgan v. State, 465 S.W.3d 327, No. 02-14-00231-CR, 2015 Tex.

App. LEXIS 5411, at *2 (Tex. App.- Fort Worth May 28, 2015, pet. granted). In

assessing who qualified as the owner, the Second Court of Appeals departed from

precedent and rather than turning to the authoritative Penal Code, looked to

common law property principles. Such a deviation is reversible error.

The Penal Code aptly defines who qualifies as the "owner" of a habitation.

      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



                                                                                    5
possession of the property than the actor. Tex. Penal Code Ann. § l .07(a)(35)(A)

(West Supp. 2014). "Possession" is defined as actual care, custody, control or

management.    Tex. Penal Code Ann. § l.07(a)(39) (West Supp. 2014).           Thus,

under the Penal Code, any person who has a greater right to actual care, custody,

control, or management of the property than the defendant is the owner.

See Alexander v. State, 753 S.W.2d 390, 392 (Tex. Crim. App. 1988).

      By including a three-pronged definition of an "owner," the Penal Code's

definition contemplates a wide variety of situations, including a case like this one,

where both the defendant and the victim cohabit.              See Garza v. State,

344 S.W.3d 409, 413 (Tex. Crim. App. 2011) (The Penal Code includes an

expansive definition of an owner.) Specifically, this case falls squarely under two

applicable definitions of "owner."

      Under the Penal Code, one who has possession of the property, whether

lawful or not, is the owner. See Tex. Penal Code § l .07(a)(35)(A). As Regina had

possession of the apartment before Appellant broke in, she qualified as the owner.

See id.   The Penal Code also defines the owner as having a greater right to

possession than the actor. Id. As Regina was the only person listed as a tenant on

the lease, and because she solely paid rent, Regina had a greater right to possession

of the property than did Appellant.      Id.; see Alexander, 753 S.W.2d at 392.

Accordingly, between Appellant and Regina, Regina was the owner under the law.



                                                                                   6
      Further, Appellant met none of the definitions of an "owner." Appellant did

not have title to the apartment. See Tex. Penal Code § l .07(a)(35)(A). Appellant

did not have possession of the apartment before breaking in. Id. Appellant did not

have a greater right to possession than Regina since he was not named in the lease,

nor did he pay rent. Id. Therefore, under a straight-forward application of the

Penal Code's definition of an owner, Regina, not Appellant, was the owner. 1

As the Penal Code's definition is expansive, it is improper to utilize common
law property principles to determine who qualifies as the owner under a
criminal statute.

      The Second Court of Appeals focused on cohabitation, or co-tenancy.

Morgan, 2015 Tex. App. LEXIS 5411, at *2.               Yet, under the Penal Code,

cohabitation is not definitive. As noted, Regina met two definitions of an owner

and Appellant met none. Accordingly, the Penal Code would have served to aptly

answer the question of who qualified as the owner between two cohabitants.



        Accordingly, contrary to the Second Court' s interpretation, whether Appellant
lived at the apartment, slept at the apartment the night before, or had his belongings
inside the apartment are immaterial considerations in determining whether Appellant had
a greater right to possession than Regina or had possession of the property before the
break in. See Mack v. State , 928 S.W.2d 219, 223 (Tex. App.- Austin 1996, pet. refd)
("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.").
        Additionally, the Second Court cited Texas Code of Criminal Procedure
article 21.08 for the proposition that when there is more than one owner, either may be
listed in the indictment as the owner. Tex. Code Crim. Proc. Ann. art. 21.08 (West
2009); see Morgan, 2015 Tex. App. LEXIS 5411 , at *5. As noted, this provision is
inapplicable, because Appellant was not an owner.

                                                                                       7
      Moreover, precedent establishes that when determining who qualifies as the

owner, courts utilize the Penal Code's definition without turning to property law

principles. See Stanley v. State, 631 S.W.2d 751 (Tex. Crim. App. 1982) (although

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

had greater right to possession of her new apartment); Dominguez v. State,

355 S.W.3d 918 (Tex. App.-Fort Worth 2011, pet. refd) (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. ref d) (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,

881 S.W.2d 946 (Tex. App.-Corpus Christi, 1994, pet. ref d) (although victim's

home was in her parent's name she had greater rights to possession than defendant

smce 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 victim had

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

out); Carrasco-Flores v. State, No. 08-13-00231-CR, 2015 Tex. App. LEXIS 4982



                                                                                 8
(Tex. App.-El Paso May 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).

      Accordingly, the Second Court of Appeals should have adhered to

established precedent and remained within the Penal Code's framework without

turning to common law property principles.            By disregarding established

precedent, the Second Court of Appeals introduced needless confusion to the

interpretation of a criminal statute.

The Second Court of Appeals improperly applied common law property
principles in deciphering who qualified as the owner of the habitation.

      The Second Court of Appeals concluded that because Appellant lived at the

apartment, and kept his possessions inside, he was either a tenant at will or a tenant

at sufferance. Morgan, 2015 Tex. App. LEXIS 5411, at *5-6. However, even after

applying common law property principles, Appellant would still not qualify as

the owner.

      A tenant at will is defined as "one in lawful possession of the premises by

permission of the owner or landlord and for no fixed term." 49 Tex. Jur. Landlord

and Tenant § 13 (2014). Most significant in this definition is the tenant at will is

allowed on the premises by the owner and is therefore inherently, not the owner.

Accordingly, even if Appellant was a tenant at will, he was still not the owner.

                                                                                    9
Additionally, a tenant at will has "no certain or sure estate," and can be "put out at

any time." Id. Therefore, Appellant would not have equal possessory rights and

the owner, Regina, could terminate his tenancy at any time. See id. Accordingly,

even if this Court were to apply the common law property principles utilized by the

Second Court, Appellant would still not qualify as the owner.

      A tenancy at sufferance is created when a tenant "remains in possession of

the premises after termination of the lease" and occupies the property

"wrongfully."    49 Tex. Jur. Landlord and Tenant § 14 (2014).             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. Id. Therefore, as a tenant at

sufferance is not in privity with the owner, Appellant could not be considered a

tenant capable of divesting ownership from Regina. Additionally, there was no

evidence that Appellant had held over his possessory interest after its termination

and therefore could not be considered a tenant at sufferance.             Accordingly,

Appellant was neither a tenant at sufferance, a tenant at will , nor the owner under

common law property principles or the Penal Code's definition. 2




2
       Moreover, under the Texas Property Code, Appellant would not have qualified as
a tenant at all. 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). Appellant was never
recognized as a tenant under the lease, nor did he pay rent.

                                                                                     10
Moreover, as the jury did not receive an instruction nor was any evidence
presented regarding common law property principles, the Second Court of
Appeals improperly acted as a thirteenth juror by applying such principles.

       In assessing the legal sufficiency of the evidence under Jackson v. Virginia,

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

verdict and determine[ s] 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.W.3d 9, 13 (Tex. Crim. App . .

2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89,

61 L. Ed. 2d 560 (1979)). A reviewing court's role is not to become a thirteenth

juror, and it should not reevaluate the weight and credibility of the record evidence

and substitute its judgment for that of the fact-finder.         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 (quoting Jackson, 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 occurrence when a

factfinder does not act rationally." Id. at 518.




                                                                                    11
      The record is devoid of any mention of tenancy at will or at sufferance. The

jury heard no evidence regarding whether Appellant classified as a tenant at will or

at sufferance, nor was there a jury instruction in the court's charge regarding

common law property principles (C.R. at 16). By relying on factors that were

never presented to the jury, and applying common law property principles

improperly, the Second Court of Appeals acted as a thirteenth juror by substituting

its judgment for that of the fact finder. Accordingly, the Second Court ·of Appeals

improperly applied the sufficiency standard and improperly found the evidence

insufficient to support Appellant's conviction.




                                                                                 12
                          THE STATE'S GROUND TWO

         To qualify 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?

Revocation of effective consent to enter

      "Consent'' is defined as "assent in fact, whether express or implied." Tex.

Penal Code Ann. § 1.07(a)(l 1) (West Supp. 2014). Consent may be withdrawn

or limited in    scope.     See Allison v.      State,   113   S.W.3d 476 (Tex.

App.- Houston [1st Dist.] 2003, no pet.). In burglary of habitation cases, lack of

consent to enter may be established by circumstantial evidence.                See

Hathorn v. State, 848 S.W.2d 101 , 107 (Tex. Crim. App. 1992); Taylor v. State,

508 S.W.2d 393, 397 (Tex. Crim. App. 1974); Tatum v. State, 649 S.W.2d 139,

142 (Tex. App.- Fort Worth 1983, pet. ref'd).

      Despite the evidence indicating that Regina revoked her consent for

Appellant to enter her apartment by locking the top lock and continually denying

Appellant entry after he knocked, banged, yelled, and broke a window, the

Second Court of Appeals concluded that there was ''no evidence of absence of

owner's consent" and "no evidence that Appellant's tenancy was terminated before

his arrest for this incident." Morgan, 2015 Tex. App. LEXIS 5411, at *4, *6.

Implicitly then, the Second Court of Appeals found that Regina's actions of

continually and intentionally denying Appellant entry, and resorting to calling 911

                                                                                 13
for assistance rather than unlocking the door and allowing Appellant inside her

apartment, was insufficient to constitute revocation of his consent to enter.

Once consent is effectively revoked, entry-even mere seconds later-is
unlawful.

      Conversely, the Second Court of Appeals in Dominguez concluded that

possession is determined immediately prior to the break in. Dominguez v. State,

355 S.W.3d 918, 923 n.2 (Tex. App.- Fort Worth 2011, pet. ref'd) ("possession

must be determined immediately prior to and not during the break-in"). Therefore,

under Dominguez , possession and consent to enter should be determined

immediately prior to the break-in. See id. In this case, prior to Appellant's break

in, Regina's actions clearly demonstrated that Appellant's consent to enter had

been effectively revoked.

      Yet, in Morgan, the Second Court of Appeals considered Regina's testimony

at trial-almost a year after the offense- that she did not intend to revoke his

consent forever. Morgan, 2015 Tex. App. LEXIS 5411, at *6. If consent and

possession are determined prior to the break-in, Regina's considerations regarding

whether she may grant Appellant consent in the future are immaterial to

determining whether Appellant had consent to enter in the moments prior to his

break-in. Moreover, the Second Court's considerations that Appellant had consent

to enter at some point in the past are immaterial to determining whether in the

moment of his entry his consent was revoked. The Second Court relied on the fact

                                                                                14
that Regina had initially granted Appellant consent to move in, that he had slept

there the night before the offense, and that his belongings were still inside as an

indication that he had consent. Id.

      Whether Appellant had consent to enter at some point in the past or may be

granted consent to enter at some point in · the future are both immaterial

considerations to whether he had consent to enter on the night of the offense. See

Harris v. State, 471 S.W.2d 390, 392 (Tex. Crim. App. 1971) (opinion on

appellant's motion for rehearing) (It is settled law in Texas that the controlling date

for ownership of property is the date of the offense.). In Ramirez, 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.

Ramirez v. State, 429 S.W.3d 686, 688, 690 n.3 (Tex. App. -San Antonio 2014,

pet ref d) (possession is measured at the time of the accused's alleged criminal

act); see Mack, 928 S.W.2d at 223 (possession determined on the date of the

offense); see also Salazar v. State, 284 S.W.3d 874, 877-78 (Tex. Crim. App.

2009) (the mere fact that a person has been invited to a home in the past does not

eliminate the societal expectation that he must be given permission to enter in the

future). Similarly, whether consent may be granted at some point in the future is

equally irrelevant to determining whether Appellant had consent before




                                                                                    15
breaking-in. The relevant consideration is whether, in the moments before the

break-in, Appellant had consent. See Dominguez, 355 S.W.3d at 923 n. 2.

Appellant did not have consent to enter Regina's apartment before he
broke in.

      By locking a deadbolt that rendered Appellant's key useless, denying him

entry after he repeatedly banged on the door and yelled at Regina to let him in, and

by refusing to allow him entry after he shattered a window, and opting to call 911

rather than granting him access, Regina's actions clearly indicated that she did not

want Appellant in her apartment on the night of the offense. 3 See Carrasco-Flores,

2015 Tex. App. LEXIS 4982, at *23 (consent effectively revoked when deadbolt

locked, defendant's key did not work, defendant knocked on door, and eventually

kicked down the door with the deadlock still engaged); see also Preston v. State,

No.    14-04-00151-CR,      2005     Tex.   App.     LEXIS     500,    at   *3    (Tex.

App.- Houston [14th Dist.] Jan. 15, 2005, no pet.) ("since Taylor locked her door

to prevent appellant's entrance, after which appellant kicked Taylor's door down to

enter the apartment, no question exists as to whether Taylor gave appellant consent

to enter ... she clearly did not"). Additionally, Regina testified that she gave

Appellant notice that she did not want him inside her apartment by locking the top

lock (3.R.R. at 45). The testimony of an owner that she did not give permission to

3
       Even if she had opened the door after Appellant shattered the window, her consent
would not be considered effective since it would have been induced by force, threat, or
fraud. See Tex. Penal Code Ann. § l.07(a)(l 9)(A)(West Supp. 2014).

                                                                                     16
enter the habitation is sufficient to establish the absence of effective consent.

Ellett v. State, 607 S.W.2d 545, 550 (Tex. Crim. App. 1980); see Rangel v. State,

179 S.W.3d 64, 69 (Tex. App.- San Antonio 2005, pet. ref d). Therefore, by her

testimony and her actions, Regina had revoked her consent. To hold otherwise is

to hold that a victim of an impending assault may never revoke consent for her

live-in boyfriend to enter, even at a time when she needs to most.

      Accordingly, the Second Court of Appeals erred in reversing Appellant's

burglary of a habitation conviction.




                                                                               17
                             PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that this Court reverse the judgment

of the Court of Appeals, find the evidence sufficient to sustain Appellant's

conviction, and reinstate Appellant's conviction for burglary of a habitation.


                                             Respectfully submitted,

                                             PAUL JOHNSON
                                             Criminal District Attorney
                                             Denton County, Texas

                                             CATHERINE LUFT
                                             Assistant Criminal District Attorney
                                             Chief, Appellate Division




                                               ~sis nt Crimina istrict Attorney
                                             State Bar No. 24077065
                                             1450 East McKinney, Suite 3100
                                             Denton, Texas 76209
                                             (940) 349-2600
                                             FAX (940) 349-2751
                                             yael.zbolon@dentoncounty.com




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                     CERTIFICATE OF COMPLIANCE

      The State certifies that the State's Brief on the Merits in the instant cause

contained a word count of 3540, said count being generated by the computer

program Microsoft Word that was used to prepare the document.




                        CERTIFICATE OF SERVICE

      A true copy of the State's brief has been sent by United States Mail, postage

prepaid, to counsel for Appellee, Chris Abel, 2609 Sagebrush Drive, Suite 202,

Flower Mound, Texas 75028 and to Lisa C. McMinn, State Prosecuting Attorney,

Post Office Box 13046, Austin, Texas 78711-3046, on this, the 8th day of

October 2015.




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