Comment

The Committee found one difference between the terminology in criminal trespass and in burglary particularly troublesome. Burglary, under Tex. Penal Code § 30.02, implicitly requires that the entered place be owned by another. It does not so describe the place entered but rather requires that the entry be “without the effective consent of the owner.” See Morgan v. State, 501 S.W.3d 84, 91 (Tex. Crim. App. 2016) (defendant who has some, but less, right to control habitation or building than alleged owner may be prosecuted for burglary); Morrow v. State, 486 S.W.3d 139, 164–65 (Tex. App.—Texarkana 2016, pet. ref’d) (victim had greater right to possession of home than that of her estranged husband, the burglary defendant, even though defendant was joint record owner and community property owner of home, because victim and defendant had agreed that victim would have possession of home after divorce).

Criminal trespass, in contrast, explicitly requires the place entered to be proved to be that “of another.” The phrase of another is not defined. But “another” is defined as a person other than the “actor,” i.e., the defendant. Tex. Penal Code § 1.07(a)(5). Criminal trespass also requires that the entry or remaining be “without consent” but does not specify that the owner must not consent.

Property, whether real or personal, is to be described in a charging instrument in terms of the owner. Tex. Code Crim. Proc. art. 21.09. Apart from the requirements of charging the offense of criminal trespass, then, the requirement to adequately describe the property that is the subject of the offense demands specification of the owner. The pleading, if not the Penal Code provision, is likely to interject ownership into the litigation.

Courts have noted that, by the express terms of Tex. Penal Code § 30.05, the offense of criminal trespass does not require the state to prove “ownership” of the property trespassed on, but merely requires proof that the property belonged to “another.” Anthony v. State, 209 S.W.3d 296, 309 (Tex. App.—Texarkana 2006, no pet.). The phrase the owner thereof may be and is often substituted for the statutory word another. Anthony, 209 S.W.3d at 309 (citing State v. Kinsey, 861 S.W.2d 383, 384 (Tex. Crim. App. 1993)). Where the state alleges “ownership,” the state may establish ownership by proving that the complainant had a greater right to possession of the property than the defendant. Anthony, 209 S.W.3d at 309–10. See Arnold v. State, 867 S.W.2d 378, 379 (Tex. Crim. App. 1993). Cf. Thompson v. State, 12 S.W.3d 915, 921 (Tex. App.—Beaumont 2000, pet. ref’d) (proof of “ownership” is not required if state pleads that property was “of another”).

If in a criminal trespass case the state relies on notice under Tex. Penal Code § 30.05(b)(2)(A), the concept of “owner” is explicitly interjected into the case by the Penal Code itself. Particularly if the state relies on notice under section 30.05(b)(2)(A), the term owner probably must be defined if the jury is instructed on that section. For the purposes of criminal trespass, as well as burglary, an “owner” means a person who has (1) title to the property, (2) possession of the property, whether lawful or not, or (3) a greater right to possession of the property than the defendant. Tex. Penal Code § 1.07(a)(35)(A). In criminal trespass cases, then, the case law will often speak in terms of the named complainant’s “ownership.” See Wilson v. State, 504 S.W.3d 337, 346–48 (Tex. App.—Beaumont 2016, pet. ref’d) (as compared to defendant, city manager had greater right of possession of community center where defendant was charged with trespassing); Bader v. State, 15 S.W.3d 599, 607–08 (Tex. App.—Austin 2000, pet. ref’d) (university campus police officers had greater right to possession of campus property than did defendant as member of public).

The Committee decided that including a definition of the term of another would be unnecessary in the majority of cases. If desired, a court could include the definition of “another” from Tex. Penal Code § 1.07(a)(5).