Hudson v. State , 1990 Tex. App. LEXIS 2345 ( 1990 )

SEARS, Justice,

dissenting.

I respectfully dissent. I find the court’s charge directed the jury to conclude that complainant had a greater right to possess the apartment than appellant, an element the state was required to prove beyond a reasonable doubt. The court instructed the jury that “owner” meant a person who had a greater right to possession of the property than the defendant. The court also instructed the jury:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 11th day of June, 1988, in Harris County, Texas, the defendant, Maurice Luffett Hudson, did then and there unlawfully with intent to commit theft, enter a habitation owned by Carol Ann Barfield, a person having a greater right to possession of the habitation than the defendant, without the effective consent of Carol Ann Barfield, namely, without any consent of any kind, then you will find the defendant guilty as charged in the indictment.

Appellant complained that “a person having a greater right of possession” was “a jury question ... a fact question,” and requested the court to add the following instruction to the charge:

If you find from the evidence beyond a reasonable doubt that on the 11th day of June, Nineteen Hundred and Eighty-Eight, in Harris County, Texas, the defendant, Maurice Luffett Hudson, because of his relationship with Carol Ann Barfield had the right to enter the premises in question, then you will find the defendant not guilty."

Appellant argued this instruction would enable the jury to find that he could not commit burglary if he had a possessory right in the premises.

The evidence established that appellant and complainant lived together in the apartment for some time prior to the offense. The jury was entitled to disbelieve complainant’s testimony that she kicked appellant out of the apartment prior to the offense. If the jury believed appellant still had a right to enter the premises, they would have to find him not guilty of burglary. However, the court instruction took this right away from the jury and instructed them to find an ultimate fact question.

The state had the burden of proof to establish, beyond a reasonable doubt, that at the time of the commission of the offense, complainant not only had a possesso-ry interest in the property, but that she also had the greater right to possession of the property than appellant. Freeman v. State, 707 S.W.2d 597, 604 (Tex.Crim.App.1986). I find the court’s language “a habitation owned by Carol Ann Barfield, a person having a greater right to possession of the habitation than the defendant,” instructed the jury that the complainant had “a greater right to possession than the defendant. The court not only commented on the evidence essential to the state’s burden of proof, but it also directed the jury to find, irrespective of the evidence, that complainant had a greater right to possession than appellant. I would find beyond a reasonable doubt that such an instruction improperly influenced the jury and contributed to appellant’s conviction. See Tex.R. App.P. 81(b)(2).

I would reverse and remand for a new trial.