Jeffery Todd Archer v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00139-CR
JEFFERY TODD ARCHER, APPELLANT
V.
THE STATE OF TEXAS
On Appeal from the County Court
Deaf Smith County, Texas,
Trial Court No. 21-0190, Honorable D.J. Wagner, Presiding
June 14, 2023
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Section 30.05(a) of the Texas Penal Code defines criminal trespass to occur when,
among other things, a “person enters * * * on or in property of another * * * without effective
consent and the person [] had notice that the entry was forbidden . . . .” Per statute, notice
can be given through “fencing or other enclosure obviously designed to exclude intruders
or to contain livestock.” TEX. PENAL CODE ANN. § 30.05(b)(2). There is no dispute that
Appellant, Jeffery Todd Archer, crossed such a border fence and entered onto the
property owned by Raymond DeChant. Although DeChant testified he would have
provided Appellant consent to enter his land under other circumstances (i.e., if Appellant
had not been carrying a firearm), such conditions were not present here.
Through three issues, Appellant challenges the sufficiency of the evidence, the
trial court’s refusal to submit two requested jury instructions, and the trial court’s failure to
grant a mistrial because of allegedly improper jury communication. We overrule
Appellant’s issues and affirm the judgment of the trial court.
Background
An information alleged that Appellant intentionally and knowingly entered onto
DeChant’s property without effective consent, that Appellant had notice the entry was
forbidden, and that at the time Appellant was carrying a handgun.1 The State did not
allege Appellant violated the law by remaining on DeChant’s property after being given
notice to depart, so we do not discuss that evidence here.2 Evidence at trial showed
Appellant and his family lived near Hereford, Texas, on property adjacent to DeChant’s.
A fence surrounded DeChant’s property, where he kept chickens, a calf, and a horse.
1 See TEX. PENAL CODE ANN. § 30.05(a). See also TEX. PENAL CODE ANN. § 30.05(d)(3)(C)
(classifying an offense under section 30.05 a Class A misdemeanor if the accused carries a deadly weapon
during the commission of the offense); Ladouceur v. State, No. 05-12-00366-CR, 2013 Tex. App. LEXIS
7792, at *5 (Tex. App.—Dallas June 25, 2013, no pet.) (mem. op., not designated for publication) (stating
“[c]riminal trespass is normally a Class B misdemeanor. However, the offense is a Class A misdemeanor
if the defendant carries a deadly weapon during the commission of the offense.”) (cleaned up).
2 See Martin v. State, No. 07-11-00102-CR, 2012 Tex. App. LEXIS 2587, at *3–5 (Tex. App.—
Amarillo Mar. 30, 2012, no pet.) (mem. op., not designated for publication) (holding that when the State
alleges only the elements of criminal trespass by entry, our review is therefore limited to that theory of
criminal liability).
2
DeChant testified the fence was intended to contain his livestock, and said he considered
anyone who crossed over the fence to be an “intruder.”
Appellant and his family owned a dog that occasionally ventured onto DeChant’s
property. DeChant told Appellant’s spouse he did not want the dog on his property. On
February 21, 2021, DeChant saw Appellant’s dog on his property eating one of his
chickens. DeChant shot and killed the dog. When Appellant learned the news, evidence
revealed he crossed the fence bordering DeChant’s property “screaming and hollering,”
while waving a holstered handgun. At some point, Appellant’s spouse also entered the
property. DeChant contacted the sheriff’s department, and Appellant was arrested for the
offense of criminal trespass.
At trial, when asked if he had given Appellant permission to come onto his property
on February 21, DeChant responded, “Not that day. No I hadn’t.” DeChant later testified
he would have had no objection for Appellant to have entered his land except that
Appellant was carrying a firearm at the time. DeChant also said:
• When Appellant brought a gun onto his property, DeChant felt Appellant
was there to harm him.
• Without Appellant’s presence to commit harm to DeChant, the two
“would’ve sat down and visited.”
• DeChant would have allowed Appellant to come on his property to
retrieve the dog if Appellant had asked and not brought a gun.
• DeChant agreed with the prosecutor’s statement that “if Mr. Archer had
just come over and had a conversation with you, we would not be here
today . . . .”
Other testimony at trial indicated that the families’ children had crossed the border fence
“many times” without complaint by DeChant.
3
A jury found Appellant guilty of the charged offense and the trial court assessed
punishment at 180 days of confinement in the county jail, probated for one year, a fine of
$1,000, and court costs.
Analysis
First Issue: Sufficiency of the Evidence
By his first issue, Appellant argues the State failed to present sufficient evidence
that he entered the property of DeChant without his effective consent. Our sufficiency
determination is directed by the familiar standard of Jackson v. Virginia, 443 U.S. 307,
318–19 (1979). We view all the evidence in the light most favorable to the verdict to
determine whether any rational factfinder could have found the essential elements of the
offense beyond a reasonable doubt. Jackson, 443 U.S. at 318–19; Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007). This standard gives full play to the trier of fact’s
responsibility of resolving conflicts in testimony, weighing evidence, and drawing
reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13 (citing
Jackson, 443 U.S. at 318–19). The trier of fact is the sole judge of the credibility of
witnesses and the weight, if any, given their testimony. Brooks v. State, 323 S.W.3d 893,
899 (Tex. Crim. App. 2010) (plurality op.). In a sufficiency review, “circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt.” Hooper, 214 S.W.3d
at 13.
Section 30.05(a) requires the State to prove that at the time Appellant entered onto
DeChant’s land on February 21, 2021, such entry was both “without effective consent”
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and that Appellant “had notice that the entry was forbidden . . . .” Notice that entry was
forbidden to Appellant is evidenced by the presence of the fence that surrounded
DeChant’s land, as well as his testimony that the fence was designed to exclude intruders
and contain livestock. See TEX. PENAL CODE ANN. § 30.05(b)(2); Salazar v. State, 284
S.W.3d 874, 877 (Tex. Crim. App. 2009) (“[I]f there is some sort of indication of a
separation of property in the form of a fence, a border, or even a sign, then the entrant
has explicit notice that entry is forbidden.”).
The question of whether Appellant had “effective consent”3 to enter DeChant’s land
in spite of the fence required the jury to assess and resolve what Appellant accurately
characterizes as “equivocal” testimony by DeChant. On the one hand, DeChant testified
he had never given Appellant permission to come onto his property on February 21, 2021.
On the other hand, the jury received evidence about the past instances when family
members crossed the fence without incident,4 as well as DeChant’s testimony that he
would have not objected to Appellant entering his land if he hadn’t been carrying a firearm
at the time. Consistent with our adherence to a legal standard that recognizes the jury’s
role in resolving evidentiary conflicts, we find that the evidence was such that a rational
factfinder could have found the essential elements of the offense beyond a reasonable
doubt. Hooper, 214 S.W.3d at 13 (citing Jackson, 443 U.S. at 318–19). Moreover, even
if we only considered DeChant’s testimony that he would have implicitly given permission
for Appellant to enter the land under other circumstances we could not find that DeChant
3 According to the submitted jury charge, “‘Effective Consent’ means assent in fact whether express
or apparent[.]” See also TEX. PENAL CODE ANN. § 1.07(a)(11).
4 No evidence suggests these individuals carried a firearm at the time.
5
gave effective consent on February 21 because the condition (i.e., not carrying a
handgun) was not satisfied.
We overrule Appellant’s first issue.
Second Issue: Requested Defensive Instructions
At the charge conference, Appellant requested, and the trial court denied, jury
instructions based on subsections (d-3) and (f) of Penal Code section 30.05. In
Appellant’s second issue, he argues that the trial court’s decision was in error. We
disagree.
A defendant is entitled to an instruction on any defensive issue raised by the
evidence if: (1) the defendant timely requests an instruction on that specific theory and
(2) the evidence raises that issue. Evans v. State, No. 07-14-00145-CR, 2015 Tex. App.
LEXIS 2724, at *6 (Tex. App.—Amarillo Mar. 23, 2015, pet. ref’d) (mem. op., not
designated for publication) (citing Rogers v. State, 105 S.W.3d 630, 639 (Tex. Crim. App.
2003)). The evidence must touch upon each element of the defense. Holloman v. State,
948 S.W.2d 349, 350 (Tex. App.—Amarillo 1997, no pet.). A trial court’s decision not to
include an instruction on a defensive issue in the charge is reviewed for an abuse of
discretion with the evidence viewed in the light most favorable to the defendant’s
requested submission. Reynolds v. State, 371 S.W.3d 511, 522 (Tex. App.—Houston
[1st Dist.] 2012, pet. ref’d).
We begin with Appellant’s complaint that the trial court erred in refusing to charge
the jury with an instruction consistent with TEX. PENAL CODE ANN. § 30.05(d-3). In relevant
part, subsection (d-3) makes it a Class C misdemeanor punishable by a fine not to exceed
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$200 if the defendant enters the property, land, or building with a firearm and the sole
basis for forbidding entry was the carrying of the firearm. See TEX. PENAL CODE ANN.
§ 30.05(d-3). This subsection was added by the 87th Legislature and made applicable to
an offense committed on or after September 1, 2021.5 It is undisputed that the date of
the alleged criminal trespass for which Appellant was convicted occurred nearly seven
months before subsection (d-3)’s effective date. Thus, the trial court did not err in refusing
to submit the instruction, even if it was for a different reason. See Johnson v. State, 490
S.W.3d 895, 908 (Tex. Crim. App. 2016) (concerning evidentiary ruling).
We next examine Appellant’s complaint that the trial court erred in refusing to
submit a jury instruction consistent with Subsection (f) of section 30.05. Appellant points
to the record evidence that he was alleged to have waved the handgun while still in its
holster, and that the arresting officer testified to performing a background check on
Appellant and discovering Appellant possessed a concealed handgun license. This
necessitates an examination of the text of Section 30.05(f), which states:
It is a defense to prosecution under this section [30.05] that:
(1) the basis on which entry on the property or land or in the building was
forbidden is that entry with a handgun was forbidden; and
(2) the person was carrying:
(A) a license issued under Subchapter H, Chapter 411, Government
Code, to carry a handgun; and
(B) a handgun:
(i) in a concealed manner; or
5 Act of May 24, 2021, 87th Leg., R.S., ch. 809 §§ 17, 28, 29, 2021 TEX. GEN LAWS 1960, 1966,
1972–73.
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(ii) in a [shoulder or belt] holster.
TEX. PENAL CODE ANN. § 30.05(f).6
There is no doubt that Appellant was carrying his handgun at the time, but was he
carrying his license? The verb “carry” is not defined by statute, so we look to its ordinary
meaning as aided by dictionary definitions. Webster’s dictionary offers two definitions
that are potentially applicable in this context: (1) “to get possession or control of : capture”
(e.g., she “carried off the prize”); and (2) “to wear or have on one’s person” (e.g., “Police
officers carry guns.”). Both definitions involve having physical possession and asportation
of an item. CARRY, Merriam-Webster Dictionary, https://tinyurl.com/565y28ue (accessed
on June 7, 2023). Black’s Law Dictionary offers similar meanings, but also includes a
definition that encompasses figuratively possessing or holding contractual rights, as in
“the decedent did not carry life insurance.” CARRY, Black’s Law Dictionary (11th ed.
2019). This definition could potentially be extended to include instances when an
individual held a recognized right (e.g., a license) even if it was not within one’s physical
possession at the time.
We believe the proper definition, in line with principles of statutory consistency,
requires that an individual asserting an affirmative defense under section 30.05(f) present
evidence that he physically possessed the license at the time he entered the land. The
Texas Court of Criminal Appeals has described this tool of statutory construction in more
detail:
6 The version of subsection (f) of section 30.05 in effect at the time of the offense pertained to a
person carrying a handgun in a concealed manner; or in a shoulder or belt holster. See Act of May 24,
2021, 87th Leg., R.S., ch. 809 §§ 17, 28, 29, 2021 Tex. Gen Laws 1960, 1966, 1972–73. We find this
difference to be irrelevant for the reasons stated herein.
8
[A] word or phrase that is used within a single statute generally bears the
same meaning throughout that statute and that when a second statute
refers to the first statute, words or phrases within the first statute will bear
their same meaning in the second statute. As the United States Supreme
Court has stated, “the normal rule of statutory construction” is that
“identical words used in different parts of the same act are intended to
have the same meaning.” Although that presumption may give way if the
legislature has clearly intended a different result, we are unable to find
any clear indication that the legislature intended that the term “previously
convicted” in Section 508.149(a) carry an entirely different meaning for
purposes of good-time credits under Section 508.283(c) than it does for
purposes of determining eligibility for release on mandatory supervision.
Ex parte Keller, 173 S.W.3d 492, 498 (Tex. Crim. App. 2005) (footnotes omitted).
To return to the relevant language, section 30.05(f) requires that the individual be
“carrying” two things: (A) a license issued under Chapter 411 of the Government Code,
and (B) a handgun. Reading the term “carry” to mean anything less than physical
possession of the item would render a different meaning depending on whether one was
reading subsection (f)(2)(A) or subsection (f)(2)(B). Put another way, equating “carrying”
under section 30.05(f) with merely holding a recognized right would potentially criminalize
conduct never intended under sections 30.05 and 30.06. See TEX. PENAL CODE ANN.
§ 30.05(d)(3)(C) (making it a Class A misdemeanor if the individual “carries” a deadly
weapon during the commission of the offense); § 30.06(a) (trespass by license holder
who “carries” a concealed handgun). See also TEX. PENAL CODE ANN. §§ 30.05(f-1
through f-4), 30.05(e-1 through e-4) (articulating affirmative defenses that distinguish
carrying a firearm from storing one).
We find no evidence that at the time Appellant entered DeChant’s property he
carried his handgun license as required by subsection (f)(2)(A). While the arresting
deputy’s background check showed that Appellant was a handgun licensee, nothing of
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record shows at the time in question it was in his physical possession. The trial court,
accordingly, did not abuse its discretion by refusing to submit Appellant’s requested
subsection (f) instruction.
Appellant’s second issue is overruled.
Third Issue: Improper Jury Communication
We end with Appellant’s third complaint: that the trial court should have granted
his motion for mistrial due to improper communications by a trial spectator with a juror.
We overrule the issue.
On the morning of the third day of trial, the trial court received testimony from a
deputy sheriff that he heard a spectator tell a juror to “look it through.” The juror allegedly
did not respond. Juror Lucio was also brought into the courtroom. She stated that on the
preceding day, “I walked out of the restroom, and [the spectator] just said, ‘You’re really
pretty.’ And I said, ‘Thanks,’ and I walked off. So that’s it.” When the spectator was
questioned, her account of the exchange was that she saw three female jurors near the
restroom, and said, “‘Hello. How are you? Good to see you. It’s a beautiful day. I wish
D.J. would turn on the air conditioner.’” The spectator denied saying to one of the jurors,
“‘You need to look it through’ or ‘Consider the facts.’”
The court then explained that it “had the bailiff question the jury and we were told
the same thing as we were told this morning.” Appellant’s counsel argued he was left “in
a bad situation” because he did not know what the bailiff said to the jury, but the bailiff
was not questioned in open court. After Appellant’s counsel moved for a mistrial, the trial
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court offered to bring in each juror one-by-one for questioning, and to replace juror Lucio
with an alternate. Appellant’s counsel declined both proposals.
Thereafter, the court’s charge to the jury included the following instructions:
In deliberating upon this case, you must not refer to nor discuss any
matter not in evidence before you. No juror may lawfully relate to any
others any fact or circumstances of which he/she may have knowledge
or information not introduced in evidence. Neither any nor all of the jurors
may lawfully consider or discuss anything else so far as the evidence is
concerned except the evidence introduced by the parties, admitted by
the Court and not withdrawn from your consideration.
No one has any authority to communicate with you except the officer who
has you in charge. During your deliberations in this case, you must not
consider, discuss, nor relate any matters not in evidence before you. You
should not consider nor mention any personal knowledge or information
you may have about any fact or person connected with this case which
is not shown by the evidence.
A mistrial is an appropriate remedy in “extreme circumstances” for a narrow class
of highly prejudicial and incurable errors. See Ocon v. State, 284 S.W.3d 880, 884 (Tex.
Crim. App. 2009) (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)).
We review a trial court’s decision to deny a motion for abused discretion. See Ocon, 284
S.W.3d at 884. The denial of the motion for mistrial must be upheld if, when viewing the
evidence in the light most favorable to the denial, it was within the zone of reasonable
disagreement. Id.; Alcoser v. State, No. 07-18-00032-CR, 2022 Tex. App. LEXIS 5722,
at *4 (Tex. App.—Amarillo Aug. 9, 2022, pet. ref’d) (mem. op., not designated for
publication).
A mistrial is used to halt proceedings when the error is so prejudicial that it makes
the expenditure of further time and expense wasteful and futile. Ocon, 284 S.W.3d at884 (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It should be granted
11
only in instances where the record demonstrates the occurrence of an objectionable event
so inflammatory that curative instructions would likely fail to prevent the jury from being
unfairly prejudiced against the defendant. Mason v. State, Nos. 07-19-00066-CR, 07-19-
00067-CR, 2020 Tex. App. LEXIS 5929, at *15 (Tex. App.—Amarillo July 29, 2020, no
pet.) (mem. op., not designated for publication). We examine whether the trial court
explored less drastic alternatives, including jury instructions and questioning the jury
about the extent of any prejudice. See Jenkins v. State, 493 S.W.3d 583, 612 (Tex. Crim.
App. 2016).
The record provides no clear indication about what juror Lucio heard from the
spectator. Moreover, there is no record indication whether the bailiff, acting at the court’s
direction, transmitted any new information about the case to the jury. Based on our
consideration of the evidence in the light most favorable to the trial court’s ruling, we hold
that the denial of Appellant’s motion for mistrial was within the zone of reasonable
disagreement, and therefore, the trial court did not abuse its discretion. Appellant’s third
issue is overruled.
Conclusion
Having overruled Appellant’s three issues, we affirm the judgment of the trial court.
TEX. R. APP. P. 43.2(a).
Lawrence M. Doss
Justice
Do not publish.
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