                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00498-CR


EX PARTE KENNETH JANNERETH




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        FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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        Appellant Kenneth Jannereth appeals from the trial court’s denial of his

application for writ of habeas corpus. Tex. Code Crim. Proc. Ann. art. 11.072,

§ 8 (West Supp. 2013). We affirm the trial court’s order. See Tex. R. App. P.

31.3.

        Jannereth was charged with criminal mischief after destroying a barrier

that a homeowners’ association had placed on a private road to block use of a


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        See Tex. R. App. P. 47.4.
private lake by nonresidents.       Jannereth, a member of the homeowners’

association, previously had threatened to tear the barrier down.              In the

indictment, the property owner was alleged to be Vaughn Petty, the president of

the homeowners’ association at the time the property was damaged.             A jury

found Jannereth guilty of criminal mischief, causing damage of $50 or more but

less than $500. See Tex. Penal Code Ann. § 28.03(a)(1), (b)(2) (West 2011).

The trial court sentenced Jannereth to 180 days’ confinement, suspended

imposition of the sentence, and placed him on community supervision for 24

months.    Jannereth appealed his conviction.        We affirmed the trial court’s

judgment, and the court of criminal appeals refused Appellant’s petition for

discretionary review.    Jannereth v. State, No. 02-10-00042-CR, 2011 WL

3426253, at *6 (Tex. App.—Fort Worth Aug. 4, 2011, pet. ref’d) (mem. op., not

designated for publication).

      Jannereth then filed an application for writ of habeas corpus arguing that

his trial counsel was constitutionally ineffective for failing to investigate Petty’s

ownership interest in the property. See Tex. Code Crim. Proc. Ann. art. 11.072,

§ 2(b)(1). Jannereth argues that because the homeowners’ association owned

the property and because there was evidence that Petty did not have standing to

be a member or president of the homeowners’ association, Jannereth was

improperly convicted of damaging the property of a non-owner. Because trial

counsel inadequately investigated Petty’s ownership interest in the property,

Jannereth asserts his trial counsel was constitutionally ineffective.


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      The State responded that Petty was shown at trial to be the president of

the homeowners’ association and that Jannereth had no ownership interest in the

property. The trial court, relying on the penal code’s definition of “owner,” found

that Petty was properly alleged and sufficiently proven to be the owner of the

property.   See Tex. Penal Code Ann. § 1.07(a)(35)(A) (West Supp. 2013).

Therefore, the trial court concluded that trial counsel was not ineffective and

denied Jannereth’s application, which Jannereth now appeals.          We did not

request additional briefing. See Tex. R. App. P. 31.1.

      We usually review the trial court’s decision to grant or deny habeas-corpus

relief under an abuse-of-discretion standard; but if (as is true here) the issue

involves the application of law to facts and does not involve credibility

determinations, we review the trial court’s decision de novo.       See Ex parte

Cummins, 169 S.W.3d 752, 755 (Tex. App.—Fort Worth 2005, no pet.).              To

demonstrate ineffective assistance of counsel, a habeas-corpus applicant must

show that (1) his counsel’s representation fell below an objective standard of

reasonableness and (2) but for counsel’s deficiency, the result of the proceeding

would have been different. Ex parte McFarland, 163 S.W.3d 743, 751–52 (Tex.

Crim. App. 2005) (relying on Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064 (1984)).

      We agree with the trial court that Petty was an owner as defined in the

penal code.    Even if counsel had sufficiently investigated Petty’s ownership

interest, the evidence would have shown that at the time the property was


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destroyed, Petty was the president of the homeowners’ association. Here, the

homeowners’ association was the true owner of the property, and Petty was the

president of the association. Jannereth attempts to argue that Petty was not

properly elected and relies on the affidavit of an attorney who opines that the

deed restrictions may not have been properly amended to bring Petty’s lake

property under the auspices of the homeowners’ association.

      Under Texas pleading rules, ownership may be alleged in either an actual

owner or a special owner. Byrd v. State, 336 S.W.3d 242, 251–52 (Tex. Crim.

App. 2011). Although it is the “better practice” to allege the corporate entity as

the owner, it is permissible to allege ownership in a special owner. Garza v.

State, 344 S.W.3d 409, 414 (Tex. Crim. App. 2011); see Dingler v. State, 705

S.W.2d 144, 145 (Tex. Crim. App. 1984) (recognizing allowable practice of

alleging ownership in “a natural person acting for the corporation”). “A special

owner is a person who has actual custody or control of property that belongs to

another person.” Byrd, 336 S.W.3d at 252. To eliminate the distinction between

special and actual ownership, the legislature expansively defined “owner” and

included in the definition 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 defendant. See Garza, 344 S.W.3d at 413; Byrd, 336 S.W.3d at 252;

see also Tex. Penal Code Ann. § 1.07(a)(35)(A). The definition of “possession”

includes care, custody, control, or management of the property.         Tex. Penal

Code Ann. § 1.07(a)(39) (West Supp. 2013). Therefore, Texas law permitted


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Jannereth’s conviction for criminal mischief where Petty was the alleged owner of

the property because Petty had possession of the property on behalf of the

homeowners’ association whether that possession was lawful or not. This result

is exactly what the legislature intended in enacting a broad definition of owner.

See, e.g., Garza, 344 S.W.3d at 412–14; Freeman v. State, 707 S.W.2d 597, 603

(Tex. Crim. App. 1986) (plurality op.). On these facts, Jannereth has not shown

the requisite prejudice—that the result of the proceeding would have been

different—in trial counsel’s alleged failure to fully investigate the legality of Petty’s

ownership interest. We conclude that the trial court correctly denied Jannereth’s

habeas-corpus application.




                                                      LEE GABRIEL
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 12, 2013




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