Texas Burglary Own Home

Can You Burglarize Your Own Residence?

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Can a Roommate Who is Not on the Lease be Convicted of Burglary of His or Her Own Residence?

Texas Burglary Own HomeThe Court of Criminal Appeals recently held that a roommate, who is not a co-tenant on the lease, could be convicted of burglary into his or her own residence. The key issue facing the Court was whether Appellant Dewan Morgan was an owner of the apartment he was residing in at the time of the criminal act.

In order to commit a Burglary of a Habitation, a person “without the effective consent of the owner (a) enters a habitation with intent to commit an assault or (b) enters a habitation and commits or attempts to commit an assault.” Tex. Penal Code § 30.02(a)(1). An “‘owner’ means a person who has title of the property, possession of the property, or a greater right to possession of the property than the person charged.” Tex. Penal Code § 1.07(a)(35).

Morgan v. State (Tex. Crim. App. 2016)

The Facts – Trial Court Found Appellant was NOT Considered an Owner

Dewan Morgan moved in with his girlfriend, Regina, in November of 2012. Regina gave Dewan Morgan a key to the apartment, but did not add his name to the lease. She mostly paid the bills and expenses with occasional help from Appellant. Additionally, Appellant kept his personal items at the apartment.

On June 20, 2013, Morgan and Regina got into an argument. Regina did not want Morgan back in the apartment, so she locked the deadbolt from inside the apartment so that Morgan could not get in with his key. He knocked on the door and rang the doorbell, but Regina did not open the door. Morgan threw a rock into a side window, which broke the window, and then began kicking in the door. He was able to gain entry into the apartment, and when he went inside he grabbed Regina, pushed her to the bed, bit her on the side of her left breast, punched her, and choked her. The police arrived and arrested Morgan. The jury found Morgan guilty of Burglary of a Habitation – a 2nd Degree Felony.

The Court of Appeals Reversed and Found Appellant was an Owner and Could Not Commit Burglary

The Second Court of Appeals held that there was “no evidence of the absence of ‘the owners’ consent” because Appellant was a co-tenant, thus an owner of the apartment. The court erroneously relied on Texas Code of Criminal Procedure, Article 21.08, which provides a definition of an owner for indictment purposes. Under that definition, the court held that because Appellant lived in the apartment and kept his belongings inside it, he was also an owner of the apartment. Additionally, there was no evidence that his tenancy was terminated, thus he had the right to occupy and control his apartment.

The Court of Criminal Appeals Reverses — Holds Appellant was Not an Owner and Did Not Have Effective Consent to Enter the Apartment

The CCA followed the Freeman standard to determine ownership: “A person’s ‘right to possession’ must be measured at the time of the accused’s alleged criminal act.” Freeman v. State, 707 S.W.2d 597 (Tex. Crim. App. 1986). The Court also extended this application to effective consent and concluded that “if a person’s status as ‘owner’ is measured at the time of the criminal act, then so is giving, or removing, of the effective consent to enter.” Essentially, the Court takes a snapshot of the criminal action and determines effective consent in only that instance.

The CCA first analyzed who the owner of the apartment was. It quickly rejected reliance on Article 21.08 because it is “only applicable in evaluating the sufficiency of an indictment.” Instead, the Court looked to the Penal Code’s definition that was included in the jury charge, as noted above. The Court said the “Penal Code’s definition of ‘owner’ clearly indicates that a defendant who has some, but less, right to control a habitation than the alleged owner may be prosecuted for burglary.”

The key concern for the Court was whether Regina’s right to possess the property was greater than Appellant’s at the time of the criminal act. The Court considered that only Regina’s name was on the lease, that she paid the rent, and that she gave Appellant a key and she could take it away. Ultimately, Regina’s possession of the apartment was greater than Appellant’s, which did not give Appellant equal ownership rights. The Court held that at the time of the offense, Regina’s right to possess the apartment trumped Appellant’s and that only she was the owner at the time of the criminal act.

The CCA next analyzed whether there was no effective consent to enter. Again, the Court analyzed effective consent only in the snapshot of when the criminal act occurred. Even though Regina testified at trial that she did not intend to permanently withhold consent to enter and it was only temporary, the Court found that the temporary revocation of consent during the criminal act was “sufficient to establish the absence of effective consent.” When Regina locked Morgan out of the apartment during their argument, the Court found it clear that Regina did not want Morgan to enter the apartment. Thus, the CCA held that Morgan did not have effective consent to enter the apartment.

The CCA’s Snapshot Analysis – Evidence is Legally Sufficient to Support the Jury’s Guilty Verdict

The CCA considered the factors during the time of the crime and held that the jury was authorized to find that Regina was the owner of the apartment because she had a greater right to possession of the apartment than Appellant, and at the time Appellant entered the apartment, he did so without the effective consent of Regina and with the intent to assault her.

Fort Worth violent crimes attorneys

Burglary of a Former Residence Leads to Capital Murder

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Felony Murder Conviction is Affirmed on Appeal

Fort Worth violent crimes attorneysGardner v. State (14th Court of Appeals, Houston 2015)

Herbert Gardner and his ex-girlfriend dated for four years and lived together in his ex-girlfriend’s home. When the couple broke up on November 2, 2012, Gardner moved into a hotel. On December 23, 2012, his ex-girlfriend was found murdered in her home and Gardner was found nearby, badly injured. On the way to the hospital Gardner stated to the police officer, “I should not have shot her.” A jury found Gardner guilty of an elevated charge of capital murder, and the trial court sentenced him to mandatory life in prison.

Gardner appealed to the Court of Appeals, arguing (1) that the evidence was insufficient to prove that he murdered his ex-girlfriend in the course of committing a burglary, an aggravating factor that elevates a murder charge to a capital offense with a heavier punishment; and (2) that the evidence was insufficient to prove that when he entered his ex-girlfriend’s home, he committed or intended to commit a felony, theft, or assault, which also carries a heavier punishment in Texas. The Court of Appeals disagreed with both of Gardner’s arguments, affirming his conviction.

First, the language of the statute under which Gardner was convicted states, “A person commits burglary if, without the effective consent of the owner, he: (1) enters a building or habitation with intent to commit a felony, theft or an assault, or, (2) enters a building or habitation and commits or attempts to commit a felony, theft or an assault.”

Gardner argued that he had an equal right to possession of the property and could not be found to have entered without his ex-girlfriend’s consent because he had lived in the home for four years, that the neighbors saw him in the home on a regular basis, and that he used the residence as home address on his driver’s license. The State argued that Gardner lost his right to possession before the murder because he moved into a hotel, his name was not on the property deed, that the front window of the home was broken and blood-stained with Gardner’s blood, that his vehicle registration reflected a different address, and that there were not any items that suggested a male was living in her home at the time of the murder.

In assessing the sufficiency of evidence, the Court of Appeals must view all evidence in the light most favorable to the verdict to determine whether the trial court could have found the elements of the offense beyond a reasonable doubt. Here, the Court of Appeals agreed with the State, that there was indeed sufficient evidence for a rational jury to conclude that Gardner no longer lived with his ex-girlfriend and no longer had consent to enter the home at the time of the murder. Because the evidence was sufficient to prove the unlawful entry element of burglary, the Court of Appeals overruled Gardner’s first argument.

Second, the language of the statute under which Gardner was convicted states, “A person commits capital murder if he intentionally or knowingly causes an individual’s death while in the course of committing or attempting to commit burglary.” Gardner argued that the State wrongly used his murder to establish the murder requirement for capital murder and to establish the felony component of the underlying burglary. The State argued that the Court of Criminal Appeals—the court of last resort for criminal matters in Texas— has held in several cases that a murder occurring after a break-in can indeed serve as both the basis for the murder charge and the underlying felony required for burglary.

Under the legal doctrine of Stare Decisis, courts must follow the precedent established by the higher court from cases the higher court has heard from previous years. In criminal appeals, these prior cases serve as an example for lower courts to follow when making decisions about upholding or overturning convictions. Here, the Court of Appeals overruled Gardner’s second argument because the court is bound to follow precedent set forth by the Court of Criminal Appeals. The State could use Gardner’s murder to establish the murder requirement for capital murder and to establish the felony component of the underlying burglary in order to elevate the murder to capital murder, which incurs a higher penalty in Texas.

In criminal appeals, the court is primarily responsible for ensuring that proper form and procedures are followed in the trial courts, rather than determining the facts of the case. The trial court is tasked with determining and recording the facts of the case, to be used later on appeal if necessary.

A criminal defense attorney in Fort Worth will understand the subtle nuances of the statutory language found in the Texas Code of Criminal Procedure and in legal doctrines, such as Stare Decisis. As you can see from the case above, statutory language and legal doctrine have a direct impact on establishing the elements of a crime, elements that may determine the severity of the penalty in the punishment phase of a trial. This essay does not replace legal counsel or advice.

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Barnett Howard & Williams PLLC is a proven and dedicated criminal defense law firm. With offices in Fort Worth, Keller, and Grapevine, our attorneys stand ready to defend your liberty and your future. Call our office at (817) 993-9249 to arrange a Free consultation of your criminal case today. Do not wait until it is too late.

LIO in Burglary Case

An Instruction on Lesser-Included Instructions

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LIO in Burglary CaseSomehow I let this case slip down in my pile of blogworthy CCA cases.  It was released in November 2011. Sorry ‘bout that.

Goad v. State (Tex. Crim. App. 2011) presents some interesting facts.  Facts that almost sound like they are out of a law school hypothetical.  Here is the skinny version:

Goad and a friend knock on a neighbor’s door and ask if she has seen his dog.  They also ask if they can come into the house and look for the dog.  The State thinks that they were “casing” the house at this point.  After Goad leaves, the neighbor pulls her car around back so that Goad will think she is not home, hoping that he will not come back to bother her anymore.  Fifteen minutes later, the neighbor notices the curtains in her front room moving and then she sees Goad and his friend stick their heads through the window.  The neighbor screamed and then Goad and his friend retreated.  The neighbor called the police and Goad was later apprehended.

The State charged Goad with Burglary of a Habitation, on the theory that Goad entered his neighbor’s house with the intent to commit theft.  At trial, Goad requested an instruction on the lesser-included offense (LIO) of Criminal Trespass, arguing that he did not intend to steal anything, but only to look for his lost dog.  The trial court refused to give the LIO instruction and Goad was convicted of Burglary of a Habitation.

The 11th District Court of Appeals (Eastland) held that the trial judge erred in refusing to give the LIO instruction:

[T]he jury rationally could have found Goad guilty only of criminal trespass because the jury could have believed that Goad was looking only for his dog.

On State’s petition for discretionary review, the Texas Court of Criminal Appeals explained that for Criminal Trespass to be an LIO of Burglary…

[t]here must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. …Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.

The State’s basic argument against the LIO instruction was that there was no “affirmative evidence” to negate the defendant’s intent to commit theft.  However, Judge Keasler wrote, “[w]e must consider all of the evidence admitted at trial, not just the direct evidence of a defendant’s intent.” The fact that the defendant had knocked on the door looking for his dog 15 minutes earlier, and the fact that he did not carry any traditional burglary tools, while not direct evidence of his lack of intent, were enough for the CCA to hold that an LIO instruction should have been given.  The CCA affirmed the Court of Appeals.

Presiding Judge Keller concurred, noting that “juries are entitled to choose among multiple reasonable inferences, as long as each inference is supported by the evidence presented at trial.”

Judge Alcala concurred, but wrote separately in an effort to point out that, in her opinion, the majority failed to specify the standard of appellate review under which the case was being considered.  This issue was apparently very important to Judge Alcala, because her concurring opinion is 16 pages in length (longer than the majority opinion and Presiding Judge Keller’s opinion combined).

Intent to Commit Theft

The “Don’ cha know” Standard | Intent to Commit Theft

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Intent to Commit TheftHere’s the scenario – man is caught entering a home through a window that he broke. A female occupant of the home comes face-to-face with him and he then runs away. Is there evidence that the man was attempting to unlawfully enter the woman’s home? Certainly. Is there evidence to support the notion that he intended to commit a theft (or other felony) therein? That’s the question.

In Gear v. State, when posed with this question, the 12th District Court of Appeals (Tyler) held that the evidence was insufficient to prove that the man intended to commit a theft or other felony on the premises. Yes, the man tried to break in and yes the man was poor, but the State simply did not prove that an attempted “burglary” had occurred.

Enter the CCA (and exit the burden of proof). The Texas Court of Criminal Appeals reversed the Court of Appeals, holding:

On this record, we decide that a factfinder could reasonably find beyond a reasonable doubt that the recently unemployed appellant with about one dollar in his pocket intended to commit theft inside the complainant’s home when he attempted to enter the home through the window that he had just broken and where the evidence also shows that appellant ran when interrupted by the complainant and that appellant gave conflicting and implausible explanations for his actions.

If you ask me, who cares what explanations appellant gave for his actions? The State must prove this specific intent crime. The burden doesn’t shift to appellant to prove his innocence. If the State doesn’t prove the specific intent to commit theft, a verdict of acquittal is required.

Judge Cochran dissented from the majority. She writes,

[The majority opinion] seems to me to be a “Don’cha know” standard; appellant broke the window and was about to climb inside, therefore “don’cha know” he intended to commit theft…Looking at all of the evidence in this case, even in the light most favorable to the trial judge’s verdict, I cannot find the evidence sufficient in quality, character, or weight…

While everyone can probably agree that the man intentions were not honorable, if the State is going to charge something, the State must prove up the charge.