                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00639-CR


ANDRE LAMONT BROWN II A.K.A.                                       APPELLANT
ANDRE BROWN

                                       V.

THE STATE OF TEXAS                                                       STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                        MEMORANDUM OPINION 1

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      Pursuant to a plea bargain agreement, Appellant Andre Lamont Brown II,

also known as Andre Brown, pled guilty to the offense of burglary of a building,

and the trial court placed him on three years’ deferred adjudication community

supervision. Appellant did not waive his right to appeal “those matters that were


      1
       See Tex. R. App. P. 47.4.
raised by written motion filed and ruled on before trial.” 2       In a single point,

Appellant appeals the trial court’s denial of his pretrial motion to quash the

reindictment of his case. Because the trial court committed no reversible error,

we affirm the trial court’s judgment.

      On September 28, 2011, Appellant filed an affidavit of adverse possession

in the Tarrant County property records regarding a home owned by Brenda

Thornton.   The State charged Appellant with burglary and theft.          In the first

paragraph of the burglary count, Appellant was charged with intentionally and

knowingly entering the habitation of Brenda Thornton without her consent with

intent to commit theft. The second paragraph of the burglary count charged that

Appellant entered the habitation of Brenda Thornton and attempted to commit or

committed theft.       The theft count charged Appellant with “unlawfully

appropriat[ing], by bringing about a transfer or purported transfer of title to or

other non-possessory interest in property, whether to the actor or another, to-wit:

real property, of the value of $100,000 or more, but less than $200,000, with

intent to deprive the owner Brenda Thornton, of the property.” 3

      Appellant filed a motion to quash, asserting, in part, that the indictment did

not allege the address of the property that he was alleged to have entered. The


      2
       See Tex. R. App. P. 25.2(a)(2)(A).
      3
       For readability, the use of all capital letters in the quoted text of the
indictment has been abandoned.



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trial court quashed the theft count but not the burglary count. The State moved

to dismiss the indictment, and the trial court dismissed it. A grand jury then

returned a reindictment against Appellant, alleging burglary again and in the

second count of the reindictment that Appellant

      unlawfully appropriate[d], by bringing about a transfer or purported
      transfer of title to or other nonpossessory interest in property,
      whether to the actor or another, to-wit: real property, situated at
      [specific location of the property listed in the reindictment],
      Mansfield, Tarrant County, Texas, of the value of $100,000 or more,
      but less than $200,000, with intent to deprive the owner Brenda
      Thornton, of the property.

The trial court denied Appellant’s motion to quash the reindictment.

      At trial, Appellant and the State stipulated that he “took possession of real

property, that being the same real property as identified in the . . . indictment[,]

and that [he] believed the real property to be abandoned.”          The trial court

admitted Defendant’s Exhibit 1, which contained both an affidavit of adverse

possession and a release thereof, over no objection by the State. The following

discussion occurred:

      THE COURT: And Defendant’s Exhibit 1 . . . is the[i]r notice of
      affidavit of adverse possession . . . ?

      [Defense Counsel]: That’s correct, Your Honor.

      THE COURT: And that’s regarding the property that’s the subject of
      [this] burglary case[]?

      [Prosecutor]: Yes, Your Honor.

      THE COURT: The adverse possession is for the same property
      that’s the subject of the burglary case[]?



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       [Prosecutor]: Correct.

       [Defense Counsel]: That’s correct, Your Honor.

In the plea bargain, Appellant pled guilty to burglary of a building, a lesser-

included offense of burglary of a habitation as alleged in the first count of the

reindictment.

       Appellant first argues that, in order to vest jurisdiction in the trial court, the

reindictment was required to negate his adverse possession defense.

Specifically, he argues that the trial court “could not adjudicate a dispute

concerning whether or not adverse possession had been established because

such would involve a civil suit between the Appellant and the record title owner of

the property.” The reindictment alleged that Appellant entered the real property

of Brenda Thornton with intent to commit theft and alternatively that he entered

the property and did commit or attempted to commit theft. The reindictment

therefore properly alleged the elements of burglary of a habitation 4 and thereby

vested jurisdiction in the trial court. 5

       Appellant also argues that the reindictment fails to provide adequate notice

of the illegal acts that he was alleged to have committed in order to allow him to



       4
        See Tex. Penal Code Ann. § 30.02(a)(1), (3) (West 2011).
       5
       See id.; see also Tex. Const. art. V, § 12(b); Teal v. State, 230 S.W.3d
172, 177, 180–81 (Tex. Crim. App. 2007); Duron v. State, 956 S.W.2d 547, 551
(Tex. Crim. App. 1997).



                                            4
prepare his defense. 6     Notice must come from the face of an indictment. 7

Appellant contends that the State was required to give notice in the reindictment

of how his legal adverse possession became burglary. Yet Appellant does not

contend that adverse possession is an exception to the offense of burglary, 8 nor

does he cite any legal authority for that proposition. 9

      It is undisputed that Appellant had not successfully adversely possessed

the property at the time of the indictment. As his own exhibit makes clear, he

had possessed the property for less than a year, not the requisite ten years. 10 As

Gil Lahav has opined in a different context,

      The legal doctrine of adverse possession seems to suggest that the
      law is not opposed—at least in principle—to condoning efficient
      theft. The justification for the doctrine of adverse possession is that
      it encourages the efficient use of scarce resources by awarding
      property rights to those who value the property more (as evidenced
      by their possession and use of it) over those who value it less (as
      evidenced by their disuse or inadequate protection of the property).
      However, the doctrine’s goal of promoting efficiency is balanced by
      the doctrine’s other goals—protecting the true owner’s interests,
      safeguarding the adverse possessor’s reliance interests, and

      6
       See Swabado v. State, 597 S.W.2d 361, 364 (Tex. Crim. App. 1980).
      7
       DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988); Miller v.
State, 333 S.W.3d 352, 356 (Tex. App.—Fort Worth 2010, pet. ref’d).
      8
      See Tex. Penal Code Ann. § 2.02 (West 2011) (providing that exception
must be negated in charging instrument).
      9
       See Tex. R. App. P. 38.1(i); Lucio v. State, 351 S.W.3d 878, 896 (Tex.
Crim. App. 2011), cert. denied, 132 S. Ct. 2712 (2012).
      10
          See Tex. Civ. Prac. & Rem. Code Ann. § 16.026 (West 2002).



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      preventing stale claims—and hence is unavailable to takers of
      property for many years. Thus, those seeking to justify efficient theft
      by analogy to the property rule of adverse possession must account
      for those goals of the doctrine that make it unavailable to efficient
      thieves of land for many years. 11

Consequently, even if adverse possession were an exception to burglary, which

we do not hold, it would not be available to Appellant.

      The reindictment states that Appellant entered “the habitation” of Brenda

Thornton with intent to commit theft. It further provides the legal description of

the real property that he was accused of stealing. We therefore hold that the

reindictment provided Appellant the requisite notice of the allegations against

which he would have had to defend absent the plea bargain. We overrule his

sole point.

      Having overruled Appellant’s sole point, we affirm the trial court’s

judgment.




      11
        Lahav, Gil, A Principle of Justified Promise-Breaking and Its Application
to Contract Law, 57 N.Y.U. Ann. Surv. Am. L. 163, 206 n.48 (2000) (emphasis
added).



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                                       LEE ANN DAUPHINOT
                                       JUSTICE

PANEL: DAUPHINOT, MCCOY, and GABRIEL, JJ.

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

DELIVERED: December 19, 2013




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