Opinion issued January 23, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00800-CR ——————————— BETTY DOUGIA JASPER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court Hardin County, Texas1 Trial Court Case No. 64262
MEMORANDUM OPINION
1 The Supreme Court of Texas transferred this appeal from the Court of Appeals for the Ninth District of Texas. Misc. Docket No. 13-9138 (Tex. Sept. 13, 2013); see also TEX. GOV’T CODE ANN. § 73.001 (Vernon 2013) (authorizing transfer of cases). We are unaware of any conflict between precedent of the Court of Appeals for the Ninth District and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. Appellant, Betty Dougia Jasper, was charged by information with criminal
trespass. 2 Appellant pleaded not guilty. The trial court found her guilty. The trial
court assessed punishment at 180 days in state jail, suspended the sentence, and
placed her on community supervision for nine months. In one issue on appeal,
appellant argues that the evidence is insufficient to establish that she actually
trespassed.
We affirm.
Background
On May 11, 2011, appellant was inside the Crawdad’s Convenience Store in
Lumberton, Texas. She and another customer were waiting for coffee to brew.
She told the customer about her pending divorce, and the man said he knew her
husband. Appellant told him to “watch out” because her husband was probably
sleeping with his wife. Appellant kept talking, using vulgar language. The man
looked at the store clerk, asking, “Can you do something about this?”
The clerk asked appellant to leave, and appellant became hostile. The store
manager came out from the back office and also told appellant she needed to leave.
Appellant told the clerk she knew where she lived and threatened to record her
license plate number. The manager called the police. Appellant went outside,
2 See TEX. PENAL CODE ANN. § 30.05(a)(1) (Vernon Supp. 2013).
2 wrote some things on some paper, and videotaped the premises, including the
clerk’s car. She then drove away.
Sergeant B. Powell and Officer C. Robichaux responded to the alert.
Sergeant Powell drove to the convenience store. Officer Robichaux located
appellant in her car and pulled her over. Sergeant Powell notified Officer
Robichaux that the manager asked for a criminal trespass warning to be issued, and
Officer Robichaux issued it to appellant. The written warning identified the
property she was prohibited from entering as being at the corner of Chance and
Highway 96. At trial, the following exchange occurred with Officer Robichaux:
Q. Was it clear to you that [appellant] understood she was not to go back to Crawdad’s store?
A. Yes, sir, it was.
Q. Was it understood that she was not to drive around, walk on, or do anything at Crawdad’s store?
A. Yes, sir, it was.
On July 11, 2011, appellant returned to Crawdad’s Convenience Store. She
drove around the parking lot. At one point, she parked the car and a friend of
appellant’s got out of the car, went inside, purchased some items, and returned to
appellant’s car. Appellant drove around the parking lot of the convenience store a
number of times, videotaping the premises, extended her middle finger out her
3 window, and yelled obscenities. The manager called the police. Appellant was
later arrested.
Sufficiency of the Evidence
In her sole issue on appeal, appellant argues that the evidence is insufficient
to establish criminal trespass because she never entered the store on July 11, 2011.
A. Standard of Review
We apply the same standard of review in bench trials as we do in jury trials.
Grant v. State, 989 S.W.2d 428, 432 (Tex. App.—Houston [14th Dist.] 1999, no
pet.). We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under a single
standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)
(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.
Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071
(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.
4 State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be
insufficient under the Jackson standard in two circumstances: (1) the record
contains no evidence, or merely a “modicum” of evidence, probative of an element
of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See
Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). An appellate court presumes that the fact finder resolved any conflicts
in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In
viewing the record, direct and circumstantial evidence are treated equally;
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.
Clayton, 235 S.W.3d at 778. Finally, the “cumulative force” of all the
circumstantial evidence can be sufficient for a jury to find the accused guilty
beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.
App. 2006).
5 B. Analysis
Section 30.05 of the Texas Penal Code provides, “A person commits an
offense if the person enters or remains on or in property of another . . . without
effective consent and the person . . . had notice that the entry was forbidden.” TEX.
PENAL CODE ANN. § 30.05(a)(1) (Vernon Supp. 2013).
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Opinion issued January 23, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00800-CR ——————————— BETTY DOUGIA JASPER, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Court Hardin County, Texas1 Trial Court Case No. 64262
MEMORANDUM OPINION
1 The Supreme Court of Texas transferred this appeal from the Court of Appeals for the Ninth District of Texas. Misc. Docket No. 13-9138 (Tex. Sept. 13, 2013); see also TEX. GOV’T CODE ANN. § 73.001 (Vernon 2013) (authorizing transfer of cases). We are unaware of any conflict between precedent of the Court of Appeals for the Ninth District and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. Appellant, Betty Dougia Jasper, was charged by information with criminal
trespass. 2 Appellant pleaded not guilty. The trial court found her guilty. The trial
court assessed punishment at 180 days in state jail, suspended the sentence, and
placed her on community supervision for nine months. In one issue on appeal,
appellant argues that the evidence is insufficient to establish that she actually
trespassed.
We affirm.
Background
On May 11, 2011, appellant was inside the Crawdad’s Convenience Store in
Lumberton, Texas. She and another customer were waiting for coffee to brew.
She told the customer about her pending divorce, and the man said he knew her
husband. Appellant told him to “watch out” because her husband was probably
sleeping with his wife. Appellant kept talking, using vulgar language. The man
looked at the store clerk, asking, “Can you do something about this?”
The clerk asked appellant to leave, and appellant became hostile. The store
manager came out from the back office and also told appellant she needed to leave.
Appellant told the clerk she knew where she lived and threatened to record her
license plate number. The manager called the police. Appellant went outside,
2 See TEX. PENAL CODE ANN. § 30.05(a)(1) (Vernon Supp. 2013).
2 wrote some things on some paper, and videotaped the premises, including the
clerk’s car. She then drove away.
Sergeant B. Powell and Officer C. Robichaux responded to the alert.
Sergeant Powell drove to the convenience store. Officer Robichaux located
appellant in her car and pulled her over. Sergeant Powell notified Officer
Robichaux that the manager asked for a criminal trespass warning to be issued, and
Officer Robichaux issued it to appellant. The written warning identified the
property she was prohibited from entering as being at the corner of Chance and
Highway 96. At trial, the following exchange occurred with Officer Robichaux:
Q. Was it clear to you that [appellant] understood she was not to go back to Crawdad’s store?
A. Yes, sir, it was.
Q. Was it understood that she was not to drive around, walk on, or do anything at Crawdad’s store?
A. Yes, sir, it was.
On July 11, 2011, appellant returned to Crawdad’s Convenience Store. She
drove around the parking lot. At one point, she parked the car and a friend of
appellant’s got out of the car, went inside, purchased some items, and returned to
appellant’s car. Appellant drove around the parking lot of the convenience store a
number of times, videotaping the premises, extended her middle finger out her
3 window, and yelled obscenities. The manager called the police. Appellant was
later arrested.
Sufficiency of the Evidence
In her sole issue on appeal, appellant argues that the evidence is insufficient
to establish criminal trespass because she never entered the store on July 11, 2011.
A. Standard of Review
We apply the same standard of review in bench trials as we do in jury trials.
Grant v. State, 989 S.W.2d 428, 432 (Tex. App.—Houston [14th Dist.] 1999, no
pet.). We review the sufficiency of the evidence establishing the elements of a
criminal offense for which the State has the burden of proof under a single
standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)
(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.
Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a
conviction if, considering all the record evidence in the light most favorable to the
verdict, no rational fact finder could have found that each essential element of the
charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071
(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.
4 State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be
insufficient under the Jackson standard in two circumstances: (1) the record
contains no evidence, or merely a “modicum” of evidence, probative of an element
of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See
Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see
also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). An appellate court presumes that the fact finder resolved any conflicts
in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In
viewing the record, direct and circumstantial evidence are treated equally;
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.
Clayton, 235 S.W.3d at 778. Finally, the “cumulative force” of all the
circumstantial evidence can be sufficient for a jury to find the accused guilty
beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.
App. 2006).
5 B. Analysis
Section 30.05 of the Texas Penal Code provides, “A person commits an
offense if the person enters or remains on or in property of another . . . without
effective consent and the person . . . had notice that the entry was forbidden.” TEX.
PENAL CODE ANN. § 30.05(a)(1) (Vernon Supp. 2013). One definition of “notice”
under the statute is “oral or written communication” by the proper authority. Id.
§ 30.05(b)(2)(A). Appellant argues that she did not commit criminal trespass
because she did not enter the store when she returned on July 11, 2011. We
disagree.
The relevant statute provides that the offense is committed if the person
enters “on or in” the relevant property. Id. § 30.05(a). The language of the statute,
then, does not limit criminal trespass violations to entering indoor areas only. The
warning that appellant received did not limit her restriction to the inside of the
premises. Further Officer Robichaux testified that it was clear to appellant when
she received the notice that she could not “drive around, walk on, or do anything at
Crawdad’s store.” (Emphasis added.) See id. § 30.05(b)(2)(A) (permitting notice
to be written or oral).
Appellant testified at trial that she thought she was only prohibited from
entering the building. While this may create a factual conflict to Officer
Robichaux’s testimony that it was clear to appellant that she understood the
6 prohibition was greater than that, conflicts in the evidence are for the trier of fact to
resolve. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (holding it is “the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts”). This testimony does not render the contrary evidence insufficient.
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).