Morgan, Dewan ( 2015 )

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.
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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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