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Tatro v. State

Court of Appeals of Texas, Fourteenth District

July 16, 2019


          On Appeal from the County Court at Law No 2 Bell County, Texas Trial Court Cause No. 2C16-05680

          Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.



         Appellant Dale Anthony Tatro, Jr. appeals his conviction for criminal trespass. See Tex. Penal Code § 30.05. After a bench trial, the trial court found appellant guilty as charged in the information and assessed punishment at confinement in the Belton County jail for thirty days and a fine of $100. In one issue, appellant contends the evidence is legally insufficient to support his conviction. We affirm.


         The evidence shows that police were called to a home in Harker Heights[1] to investigate a disturbance involving criminal trespass. When responding officer Bruce Smith, Jr. arrived, he spoke with the complainant, Leanne Phillips. Phillips, the owner of the home, told Smith that an individual was in the backyard who had been asked to leave but refused to do so. Officer Smith found appellant in the backyard of the home and appellant appeared intoxicated. After some resistance, Smith placed appellant in handcuffs and took him into custody for criminal trespass. During the booking process, appellant described his address as a location in Kempner, Texas.

         Appellant, who was the boyfriend of Phillips's daughter and the father of the daughter's three children, frequently stayed at the Phillips residence with Phillips, her daughter, and the three children. Phillips stated that she did not mind appellant staying at the home as long as he was not intoxicated. Phillips denied any oral or written landlord-tenant agreement with appellant, but she allowed him to stay the night "all the time," keep clothes and toiletries at the house, and cook at the house. Phillips's daughter testified that she and appellant moved into the home with their three children and that she and appellant gave Phillips money to help with the utilities, though Phillips denied that appellant ever gave her any money. Phillips gave her daughter a key to the home but denied giving appellant a key. Phillips told appellant that he was not to come to the house if he was intoxicated and "he knew that." Phillips's daughter testified that Phillips and appellant had a good relationship "off and on," and that Phillips and appellant fight when appellant is drinking.

         On the night in question, Phillips arrived home from work to find appellant, in an intoxicated state, being dropped off at the house. Phillips went inside and locked the door, telling her daughter that appellant was outside and intoxicated. Phillips's daughter testified that she had taken appellant to a friend's house earlier in the evening because he was drinking and getting on her nerves. She did not expect appellant to come back to the house that evening. Phillips told appellant to leave; in response, appellant told Phillips to "shut up." A few minutes later appellant went in the backyard but did not leave the property. Phillips again asked appellant to leave her property, but he responded with racial slurs and would not leave. Phillips then called police, who took appellant into custody.

         The State charged appellant by information with criminal trespass. Appellant waived a jury trial and entered a "not guilty" plea before the trial court. The trial court found appellant guilty as charged and assessed punishment at thirty days' confinement in the county jail and a $100 fine. This appeal followed.


         Appellant challenges his conviction in one issue. Appellant argues the evidence is legally insufficient to support the trial court's judgment because appellant was a tenant, not a guest, in the home and thus Phillips had no right to ask him to leave. We conclude the evidence is legally sufficient.

         I. Standard of review and elements of criminal trespass

         When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.-Austin 2013, no pet.). During a bench trial, the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). When conducting a legal-sufficiency review, we may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the factfinder. Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); see Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). "A court's role on appeal is restricted to guarding against the rare occurrence when the factfinder does not act rationally." Arroyo, 559 S.W.3d at 487.

         A person commits the offense of criminal trespass if the person enters or remains on property of another, without effective consent, and the person had notice that the entry was forbidden or received notice to depart but failed to do so. Tex. Penal Code § 30.05(a)(1), (2). The State alleged that appellant intentionally and knowingly entered and remained on and in the property of Phillips, the owner, without the owner's effective consent, ...

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