Crae Robert Pease v. State

Opinion

November 24, 2015

03-14-00512-CR

IN THE COURT OF APPEALS OF TEXAS THIRD DISTRICT, AUSTIN /"RECEIVED ^ CRAE ROBERT PEASE NOV 2 0 2015 Appellant THIRD COURT OF APPEALS,

Vs.

STATE OF TEXAS Appellee.

On Appeal from the County Court at Law No. 6 Travis County, Texas Trial Court Cause No. C-l-CR-13-220763 Judge Bob Perkins, Presiding

APPELLANT'S BRIEF ON THE MERITS

ORAL ARGUMENT REQUESTED

Crae Robert Pease 6715 Skynook Drive Austin, Texas 78745 (512)538-6099 specialcrae@vahoo.com IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1(a), appellant presents the following list of all parties and names and address of counsel:

Appellant

Crae Robert Pease 6715 Skynook Drive Austin, Texas 78745

Appellee

THE STATE OF TEXAS

Counsel for Appellee

William G. Swaim III P. O. Box 1748 Austin, Texas 78767

u TABLE OF CONTENTS

Identity of Parties and Counsel ii

Table of Contents iii

Table of Authorities iv

Statement of the case 1

Any Statement Regarding Oral Argument 1

Issues Presented 2

Statement of Facts 4

Summary of the Arguments 9

Argument 10

Caveat 40

Prayer 41

Certificate of Service 42

Certificate of Compliance 42

in TABLE OF AUTHORITIES

CASES

Aguilarv. State, 846 S.W.2d 318, 319-20 (Tex.Crim.App.1993) 21

Almanzav. State, 686 S.W.2d 157 at 171 (Tex.Crim.App. 1984) 36

Baker v. State, 123 Tex.Crim. 209, 58 S.W.2d 534, 534-35 (1933) 32

Benavidezv. State, No. 13-07-00670-CR (Tex.App.—Corpus Christi, 2009)..29

Benoitv. State, 561 S.W.2d810, 813 (Tex.Crim.App. 1977) 31,32

Brasfield v. State, 600 S.W.2d 288, 295 (Tex.Crim.App.1980) 32

Brownv. Davis, 123 S.W.2d321, 325 (Tex.2002) 2

Cardinal Health Solutions v. Valley Baptist, 643 F.Supp.2d 883 (U.S.D.C., S.D. Tex. Brownsville, 2008) 19

Douglas v. California, 372 U.S.353, 82 S.Ct. 814, 9 L.Ed. 2d 811 (1963) 34

Drumm v. State, 560 S.W.2d 944, 947 (Tex. Crim.App. 1977) 32

Exparte Auten, 458 S.W.2d 466 (TQx.Cr.AppA970) 34

Ex parte Coleman, 455 S.W.2d 209 (Tex.Cr.Ap.\970) 34

Exparte Gordon, 439 S.W.2d 354 (TQX.Cr.App.\969) 34

Exparte Hope, 374 S.W.2d 441, (Tex.Cr.App.1964) 34

Exparte Marshall, 445 S.W.2d 22 (TQX.Cr.App.\969) 34

Farrettav. California , 422 U.S. 806 (1975) 10

Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Crim.App. 1980) 28

Gideon v. Wainwright, 372 U.S 335, 83 S.Ct 792, 9 L. Ed 2d 799 (1963) 34

IV Gillette v. State,No. 13-12-00454-CRand 12-12-00455-CR, (Tex.App.—Corpus Chrisi, Edinburg, 2014) 24

Janecka v. State, 739 S.W.2d 813, 819 (Tex.Crim.App. 1987) 32

Janecka v. State, 823 S.W.2d 232, 232-38 (Tex. Crim.App. 1990) 32

Johnson v. Brewer & Pritchard, P.C 73 S.W.3d 193, 199 (Tex.2002) 18

Johnson v. State, 364 S.W.3d 292, (Tex.Ct.Cr.App.—2012) 23

Jones v. State, 532 S.W.2d 596, (Tex.Crim.App., 1976) 39

Kennerv. CLR., 387 F.3d 689 (1968) 18

Kinsey v. State, 861 S.W.2d 383 at 385-386 (Tex.Cr.App. 1993) 31

McKithan v. State, 324 S.W.3d 582, 588 (Tex.Crim.App.2010) 20

Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997) 22,23

Meyer v.Cathey, 167 S.W.3d 327, 330 (Tex.2005) 18

Moore v. State, 473 S.W.2d 523, 523-24 (Tex.Crim.App. 1971) 32

Munns v. State, 412 S.W.3d 95, (Tex.App.—Texarkana, 2013) 24

National Plan Adm 'rs, Inc., v. National Health Ins. Co., 235 S.W.3d 695, (Tex.2007) 18

Prieto Bail Bonds v. State, 994 S.W.2d 316 , (Tex.App.—El Paso 1999)(pet. denied) 14

Robertson v. State, 94 S.W.2d 861(Tex.App.—Houston [14th Dist], 1996 12 Salazar v. State, 284 S.W.3d 874, 878 (Tex.Crim.App.2009) 24

Sanchez v. State, 209 S.W.3d 117, 121 (Tex.Crim.App. 2006) 36

v State v.Ford, 158 S.W.3d 574 (Tex.App.—San Antonio, 2005) 14

Studer v. State 799 S.W.2d 263, 268-73 (Tex.Crim.App. 1990) 21

7VwWv.5tete,911S.W.2d807,(Tex.App.—El Paso, 1995) 13,22

Trejo v. State, 280 S.W. 3d 258, 260 (Tex.Crim.App.2009) 28

Trejo v. State, 313 S.W.3d870, 872 (Tex.App.—Houston [14th Dist] 2010,pet.refd) 37

Vanderburg v. State 842 S.W.2d 286, at 288-289 (Tex.App.—Houston [1st} 1988) 31

Villarreal v. State, 286 S.W.3D 321, 327 (Tex.Crim.App. 2009 23

Wilson v. State, 520 S.W.2d 377, 379 (Tex.Crim.App. 1975) 31,32

Woodward v. State, 322 S.W.3d 648, (Tex.Crim.App. 2010) 36

Texas Statutes

TEX.CODE CRIM. PROC.ANN. art. 1.05 (Vernon 1977) 12

TEX.CODE CRIM.PROC.ANN. art. 1.14(b) (Vernon Supp. 1995) 21

TEX.CODE CRIM.PROC.ANN. art. 1.051 (Vernon Supp. 1996) 21

Texas Penal Code §30.05 13,16,23,38

Tex.Penal Code Ann. §32.05(b)(2)(Wst Supp.2012) 24

Tex.Gov'tCode§25.0017(c), 13

Tex.Gov.Code, §25.006(a) 13

Tex.Gov.Code, §45.001(b) 14

Tex.Gov't.Code §74.056 13

VI Tex.Gov't Code Ann. §75.403(e)(Vernon 1988) 13

Tex.Loc.Gov.Code §81.002 12

Tex.Prop.Code §51.902 30

TEXAS CONSTITUTION

Art. 1,Sec. 10 2,7,10,11,12,20,31,34

Art. 1, Sec. 29 35

Tex.Const, art. XVI, §1 12, 14

Tex.Const, art. XVI, §1(c) 13,14,15

UNITED STATES CONSTITUTION

U.S. CONST, amend. VI 20

References

Black's Law Dictionary, Sixth Edition page 63 19

Black's Law Dictionary Sixth Edition page 64 19

Vll STATEMENT OF THE CASE

Appellant was arrested on December 11, 2013, in the 8400 block of

Dempsey and Ditmar Drive and booked into Travis county jail on the charge of

criminal trespass of 10820 Gerald Allen Loop, Austin, Texas.

Appellant was tried in a jury trial in July of 2014 and it is from that

conviction that he appeals.

Appellant will show this Court that the facts do not match the verdict.

Appellant will show this Court that the jury charge is in variance to the

information.

STATEMENT REGARDING ORAL ARGUMENTS

This case raises significant issues related to the trial court's erroneous

exclusion of critical evidence and factual sufficiency of the evidence presented in

relation to the rule set forth in Brown v. Davis, 123 S.W.2d 321, 325 (Tex.2002).

The inclusion of oral arguments will significantly aid the decision of this Court. ISSUES PRESENTED

ISSUE 1: Did Judge Bob Perkins have the right to deny assistance of counsel, in

violation of Appellant's inviolate right under the Texas Constitution, art. 1, Sec.

10?

ISSUE 2: Did the appointed Judge, Bob Perkins, have authority to preside over the

case?

ISSUE 3: Did William G. Swaim, Travis County assistant prosecutor have the

proper statutory oaths and bonds on file, in order to have authority to prosecute for

the State?

ISSUE 4: Was Hallie Waller the owner or the agent of the owner of the property?

ISSUE 5: Was the information insufficient and therefore defective?

ISSUE 6: Was the jury charge in harmony with the information?

ISSUE 7: If Fannie Mae was the owner of the property at the time of the

intrusion, why didn't it appear at trial?

ISSUE 8: Who was the inhabitant of the property when Appellant got the

criminal trespass warning?

ISSUE 9: Did the prosecution prove the necessary elements of the information,

namely, that Appellant knowingly and intentionally entered the property of

another.

ISSUE 10: How harmful to Appellant was the denial of assistance counsel? ISSUE 11: Did the fact that the judge refused to include the affirmative defense to

criminal trespass in the jury charge have any effect in the outcome?

ISSUE 12: Did the state meet the burden of proof that Appellant trespassed on the

property of another, to wit: Hallie Waller? STATEMENT OF FACTS

Appellant, Crae Robert Pease, a man who, together with his wife, had been

living at 10820 Gerald Allen Loop, Austin, Texas since January of 2011.

Appellant had acquired title to the property through a quit claim deed issued to him

by Grant Trevarthen, who had acquired interest in the property from Christopher

and Jessica Andersen before the Andersens were foreclosed upon.

Appellant attempted to intervene in several suits which were filed against the

Andersens, namely Jessica, which were in reference to the property, to no avail.

After an eviction against and only pertaining to Jessica Andersen, on or

about May 29, 2013, during which time Appellant temporarily moved his

possessions from the property, he moved back in after the Writ of Possession

against Andersen had been returned to the court.

Appellant maintained his residence in the property to which he was and is

the titled owner of record, until May 31, 2013, Hallie Waller, a real estate agent for

Fannie Mae, called the Austin Police Department who responded, and on the

urging of Ms. Waller's sister, rammed the door, forcibly entered the property and

gave possession to Waller. Several days later, a criminal trespass warning was

given to Appellant by Hallie Waller in the presence of APD officers. Appellant knew that Ms. Waller was neither the owner nor the agent of the

owner, and further, he knew that the police had become involved in a civil issue

and had committed trespass when they rammed the door to gain entry.

Appellant's mail continued to be delivered to the Gerald Allen address, and

after the trespass warning, he went by the home fairly regularly to keep an eye on

the upkeep and to get his mail from the boxes at the curb nearby. He did not enter

the home.

On December 11, 2013, Appellant was delivering a cease and desist order to

the neighbor across the street when he saw a suspicious car drive slowly by.

Appellant had parked his car in the driveway at 10820 Gerald Allen, but did not go

near the entrance to the home. He stayed on the other side of the street, away from

the house and saw the car go around again, and when the car went around the

corner, he retrieved his car and left.

After the criminal trespass warning, Appellant, who was the titled owner of

the property, called the APD a number of times and emailed several of the officers

whose name he could find, in an attempt to understand how APD could breach the

peace, ram his door and hand his property over to a real estate agent, all without

court orders or warrants. These inquiries were treated as though they constituted a threat to the APD

and, unbeknownst to him, a tactical team was put in place to surveil Appellant and

10820 Gerald Allen Loop.

Appellant was followed and arrested about 2 to 3 miles from Gerald Allen

and charged with criminal trespass.

The report from the officer, William Nelson1 states that because of the threats contained in Appellant's emails, (no threats were made nor intended to be

made to any police officer), Appellant was considered a high risk stop. When the

three officers approached Appellant, he reached to the gear shift on the floor of the

standard transmission car, and he was leaning over to engage he gear. Officer

Nelson translated that movement into "I could see driver reaching with his right

hand beside the right side of the seat. Because of the threats that had been made

and the drier reaching I actively target the driver with my pistol until he had turned

the vehicle off." In actual fact, Appellant had the barrel of Officer Nelson's pistol

pushed against his head, in addition to two laser dots on his head from two other

officers. Appellant feared for his life, and believes if it had not been for several

persons retrieving their mail from a nearby mailbox, he would have been shot.

Appellant was taken to jail, booked for criminal trespass and issued Cause

No. C-l-CR-13-220763.

1RRVol.5, page 27and 28 There were a number of pretrial hearings in front of the judge of Travis

County Court at Law #6, Judge Brandy Mueller, but when the jury trial began on

August 11, 2014, Appellant was confronted with visiting Judge Bob Perkins.

When the pretrial hearing began, attorney Adam Reposa, who had agreed to

assist Appellant as standby counsel, made his appearance.

A motion in limine was discussed by the parties, and Mr. Reposa was drawn

back into the court,3 wherein the court asked Reposa about hybrid counsel,

which quickly dissolved into a discussion of Faretta counsel between Reposa and

the judge5. Judge Perkins ignored the request for standby counsel, in other words,

denied the request, and forced Appellant to go to trial without assistance of

counsel, a violation of Texas Constitution art. 1, Sec. 10.6

Appellant requested assistance of counsel and Judge Perkins had a

discussion about hybrid counsel, not quite the same thing7 as standby or assistance

of counsel, which Judge Perkins denied to Appellant.

Appellant then asked Judge Perkins for his proper oath and assignment.

2RR Vol. 2 of 5, page 4, lines 23-25, page 5, lines 1-9 3RR. Vol. 2 of5, page 11, lines 18-25, Hybrid counsel is a term arising out of federal courts. The U. S. Constitution , Article the eighth states that when held to a criminal prosecution, the accused has the right to have the Assistance of Counsel for his defense. This has been construed by the federal Courts, if and when the defendant is allowed to speak for himself and still have Assistance of Counsel, to be hybrid representation. 5RR Vol. 2 of 5, page 12, page 13, lines 1-21 6RR Vol. 2 of 5, page 23, lines 14-25, page 24, lines 1-18. 7RR. Vol. 2 of 5, page 19, lines 20-25, page 20, page 21. Appellant then asked Judge Perkins for a plea in bar, and Judge Perkins,

sight unseen, denies the plea inbar.9

8RR Vol. 2 of 5, page 22, lines 1-16 9RR. Vol. 2 of 5, page22, line 18-25, page 23, lines 1-6 SUMMARY OF THE ARGUMENTS

Appellant was deprived of a constitutional right of assistance of counsel, and

since Appellant did not know the procedures in court, was denied counsel which

would have made a difference in the outcome of the case.

Appellant was denied the inviolate rights promised by the Texas

Constitution.

Judge Bob Perkins did not fill the mandatory requirements of the office of a

county court at law judge before he assumed the duties of the office, therefore,

Judge Bob Perkins was not qualified to sit as a county court at law judge in this

case.

William G. Swaim, III, did not meet the mandatory requirements for

authority of office.

Hallie Waller was not an owner or agent of the owner and could not issue a

criminal trespass warning to Appellant. The prosecution never proved who the

owner was or what agency relationship Hallie Waller had with the alleged owner

of the property.

The information was insufficient to charge the crime of criminal trespass of

a habitation. It is fatal error when the information does not list all the elements of

the crime and when it does not give the defendant notice of exactly what he is

charged with. ARGUMENTS

ISSUE 1: Did Judge Bob Perkins have the right to denv assistance of counsel, in violation of Appellant's inviolate right under the Texas Constitution, art. 1, Sec. 10? No.

Tex.Const. art. 1,Sec.10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. He shall have the right of being heard by himself or counsel, or both.

Attorney Adam Reposa was present in court and had been asked to be

standby counsel10. The judge told him to wait. . The judge cites the Faretta case as hisjustification for Appellant not beingallowed a standby counsel .

Farretta v. California , 422 U.S. 806 (1975) is an inappropriate case, as it

is federal and does not deal with assistance of counsel, but with the ability of the

defendant to represent himself in court. Appellant wanted and asked for assistance

of counsel, and the Texas Constitution at art. 1, Sec. 10 states: "He shall not be

compelled to give evidence against himself, and shall have the right of being heard

by himselfor counsel, or both." The Texas Constitution guarantees Appellant the

inviolate right to represent himself and have counsel during the criminal trial. He

had a right to represent himself, or appear through counsel, "or both" and he was

coerced to choose between the first two alone. Judge Perkins erroneously equated

standby counsel with hybrid representation.

10 RR Vol.2 of 5, page 4-5, lines 23-25-, 1-9 11 RR Vol.2 of 5, page 11, line 18-25, page 12, page 13 to line 16 10 Appellant testified that he was under duress when he was presented with

Waiver of Counsel forms, thus forcing him to waive an attorney and he signed the

document waiving counsel "under duress".12 Appellant testifies the first Waiver of Attorney was signed No thank you, in German and not his signature. The

document13 is signed Neine Danke. The second waiver14 contains his signature with the qualification, "Under duress". Neither document is binding on Appellant

as they were both coerced.

Appellant requested appointment of counsel and attorney Adam Reposa was

present. Appellant had the right to both his representation and that of counsel.

Tex.Const. art. 1, Sec. 10 gives an accused three rights and triple cord protection

which is not easily broken. Appellant was coerced to choose between the first two.

The Texas Constitution has provided the triple cord protection from the inception

of Texas independence and it is a forever inviolate right of the people. No court

can repeal, alter, amend or abrogate the clear language and intent ofthe People.

No court can repeal, alter, amend or abrogate the clear language and intent

of the framers of the Texas Constitution.

In all criminal prosecutions, the accused has a right of assistance of counsel

for his defense. U.S. CONST, amend. VI; see also TEX.CODE CRIM.PROC.ANN. art.

12 RR Vol. 4 of 5, page 34, lines 14-25, page 35, lines 13 CR page 14 14 CR page 15 11 1.051 (Vernon Supp.1996). An accused also has the right of being heard by himself or

counsel or both. TEX. CONST, art. I, § 10; TEX.CODE CRIM. PROC.ANN. art.

1.05 (Vernon 1977). Robertson v. State, 94 S.W.2d 861(Tex.App.—Houston [14th Dist], 1996

In the absence of standby counsel, the court had an obligation to admonish

the defendant of the dangers of self-representation. Judge Perkins did not do this.

This admonishment was not necessary in the event the Court allowed standby

counsel, but when the Court denied Appellant the right to standby counsel, the

Court had an obligation to admonish him of the dangers of self-representation.

Had Judge Perkins denied assistance of counsel and then admonished

Appellant about the dangers of self-representation it would have been a dichotomy.

However, no admonishment was given and none appears in the jury trial transcript.

Appellant told the Court that it had never been his intention to waive counsel, as he

wanted standby, art. 1, Sec. 10, counsel at trial. The Court denied Appellant's

inviolate right to counsel, and at the same time, failed to admonish him of the

dangers of proceeding pro se.

ISSUE 2: Did the appointed Judge, Bob Perkins, have authority to preside over the case? No. The prerequisites for a County Court at Law Judge are:

Oath Requirement: A person must take the official oath. Tex.Const., art. XVI, §1; Tex.Loc.Gov.Code §81.002.

12 Statement of Officer: Must be filed in the official records of the office before the oath can be taken. Tex.Const., art. XVI, §l(c). Bond Requirements: The judge of a statutory county court must execute a bond as prescribed by law for county judges. Tex.Gov.Code, §25.006(a). The bond must be payable to the treasurer of the county in an amount set by the commissioners court of not less than $1,000.00 nor more than $10,000.00.

The qualifications, duties, and powers of a special judge are the same as for

a duly elected sitting judge. Tex.Gov't Code Ann. §75.403(e)(Vernon 1988).

Tex.Gov't Code §25.0017(c), A retired or former judge may be assigned as a

visiting judge of a statutory county court only if the judge has filed with the

regional presiding judge an oath of office as required by this section.

The Texas Criminal Code §30.05 required the clerk to make a record of the

appointment of the special judge as required by Tex.Gov't Code Ann. §30.05 (now

Tex.Gov't Code §25.0017(c) to make a record of the appointment of the special

judge as required by Tex.Gov't Code Ann. §30.05, showing that the judge was

absent, that the judge was appointed and that the oath of office was duly

administered to the special judge. Todd v. State, 911 S.W.2d 807, (Tex.App.—El

Paso, 1995). Although the Tex.C.Cr.Pro. Art. 30.05, record by the clerk, was

repealed in 1999, Appellant, nevertheless, asked the clerk, in her supplemental

record, for the appointment of Judge Bob Perkins, which reflects the assignment of

Perkins to his case.

The Supplemental Clerk's record, page 6-8, reflects an Order of assignment,

pursuant to Tex.Gov't.Code §74.056 by Billy Ray Stubblefield on July 25, 2014, 13 naming Judge Robert A. Perkins to the County Court at Law #6 of Travis County,

Texas, for a three day period beginning August 11, 2014; and Order of assignment

on January 14, 2015, naming Judge Robert A. Perkins to the County Court at Law

#6 of Travis County, Texas for one day beginning January 20, 2015; and an Order

of assignment of Judge Robert A. Perkins to the County Court at Law #6 of Travis

County, for one day beginning May 22, 2015. That completes the record of the

clerk as requested.

The clerk's record does not contain an oath of office of Judge Bob Perkins.

Judge Bob Perkins did not have authority to preside over this case as he failed to

meet the mandatory requisites of a county court at law judge before taking the

bench, and all his orders are void. Prieto Bail Bonds v. State, 994 S.W.2d 316 ,

(Tex.App.—El Paso 1999)(pet. denied); State v. Ford, 158 S.W.3d 574

(Tex.App.—San Antonio, 2005)

ISSUE 3: Did William G. Swaim, Travis County assistant prosecutor have the proper statutory oaths and bonds on file, in order to have authority to prosecute for the State? No.

Willaim Swaim was appointed by Travis County Attorney David Escamilla.

In order to have the authority to act, a County Attorney must be in compliance with

Tex.Const., art. XVI, §§l(a)(c). In addition, the county attorney shall execute a

bond payable to the governor in the amount of $2,500, in compliance with

Tex.Gov.Code, §45.001(b).

14 William G. Swaim III was appointed by David Escamilla on January 25,

2013. On January 22, 2013, (three days before he was appointed), Swaim signed

his Statement of Officer pursuant to the Texas Constitution art. XVI. I is at the

discretion of the county attorney to require his assistant to execute a bond.

Swaim has no bond, therefore, Swaim is covered under the Travis County

Attorney's bond.

David Escamilla signed a Statement of Officer on January 11, 2013. David

Escamilla signed the Constitutional Oath of Office on January 11, 2013. David

Escamilla was issued a $2,500 bond payable to the Governor of the State of Texas

which was signed on November 1, 2012, five days before he was elected to the

office of Travis County Attorney. The bond is defective, as it contains no oath on

the back, and must be dated after election, although it was approved in open

Commissioner's Court on December 18, 2012.

If Escamilla has not completedthe requisite documents prior to his assuming

the office after each and every election, he does not have the authority of an officer

of Travis County. If the Travis County Attorney does not have the authority of an

officer, he cannot statutorily appoint an assistant who has any authority.

15 ISSUE 4: Was Hallie Waller the owner or the agent of the owner of the property? No. Hallie Waller attested to the fact that she is a realtor for Fannie Mae15, and

her Fannie Mae Master Listing Agreement was admitted in the court. This is a real

estate listing contract, and does not give evidence of Fannie Mae's ownership of

the property, nor does it convey ownership agency to Ms. Waller. Appellant told

Ms. Waller that he was the owner ofthe property.16 Hallie Waller served Appellant with a criminal trespass warning. Hallie

Waller told Appellant she was a representative of Fannie Mae. Hallie Waller's

sister instructed that the locked door to the property be rammed. This in itself is

an element of criminal trespass by the APD.

Hallie Waller was not the listing agent at the time of Appellant's arrest.19 Tex.Penal Code §30.05, Criminal Trespass, states that Notice means "oral or

written communication by the owner or someone with apparent authority to act

for the owner,' but Notice is also (B) fencing or other enclosure obviously

designed to exclude intruders. Courts have ruled that this also includes locks on

the doors.

15 RR Vol.5 of 5 Exhibit 7 16 RR. Vol. 3 of 5 page 76 line 25, page 77 lines 1-2. 17 RRVol. 3 of 5, page 82, lines 2-5. 18 RRVol. 3 of 5, page 97, lines 3-15 19 RRVol. 3 of 5, page 102,13-23 20 RR Vol. 3 of 5, page 106, lines 5-11, RR Vol. 5 of 5, Defendant's Exhibit 5 16 In addition, (c) lists notice as a sign or signs posted on the property or at the

entrance of the building, reasonably likely to come to the attention of intruders,

indicating that entry is forbidden. Appellant told Ms. Waller that he had posted

"No Trespassing" signs in the windows when the APD forced entrance to his

home.

Appellant presented the Court with the definition of owner. Hallie Waller

was not the owner of the property, nor was it claimed she was in the information.

A discussion of Hallie Waller's lack of ownership or agency relationship is

discussed.22

The testimony of Duane Naumann gives evidence of the abstract of title

showing evidence that the last instrument in public record reflects Crae Pease as

owner ofthe property at 10820 Gerald Allen Loop.23 Fraud on the court. Hallie Waller is not the owner of the property. The

information doesn't claim she is the owner, nor does it claim she is the agent for

the owner. Hallie Waller testifies she does not own the property and states she

acted for Fannie Mae. Fannie Mae did not appear and testify that it owned the

property and had charged criminal trespass. Hallie Waller did not have the

21 RR Vol. 3 of 5, page 107, line 16-24 22 RRVol. 3 of 5 pages 122-126 23 RRVol. 3 of 5, page 165-173.

17 authority to issue a criminal trespass warning, nor did she have the authority to

instruct the Austin Police department to forcibly enter the home of another.

Fraud on the Court: "embraces that species of fraud which does, or attempts

to, defile the court itself, or is a fraud perpetrated by officers of the court so that

the judicial machinery cannot perform in the usual manner its impartial task of

adjudging cases that are presented for adjudication". Kenner v. C.I.R., 387 F.3d

689(1968)

To be an agent of an owner requires an agency relationship. An agency

relationship imposes certain fiduciary duties on the parties. But even in an agency

relationship such as employer-employee, courts take all aspects of the relationship

into consideration when determining the nature of fiduciary duties flowing

between the parties. National Plan Adm'rs, Inc., v. National Health Ins. Co., 235

S.W.3d 695, (Tex.2007).

Whether a fiduciary duty exists is a question of law. Meyer v. Cathey, 167

S.W.3d 327, 330 (Tex.2005). Fiduciary duties are imposed on parties to certain

relationships based on the special nature of the relationships. Johnson v. Brewer &

Pritchard, P.C. 73 S.W.3d 193, 199 (Tex.2002).

Even if Fannie Mae had been the owner, which was asserted but never

proven, Hallie Waller did not have a fiduciary relationship with Fannie Mae.

18 Fannie Mae did not convey ownership of the property to Waller, she was merely a

real estate agent with a contract to sell a property.

"This Court adopts the example of the Supreme Court of Texas in finding

that even if parties agree that a contract provides that one party act as the other's

agent for certain "specific" purposes, this does not mean that the contract creates

an agency relationship "in all matters connected with their relationship." Cardinal

Health Solutions v. Valley Baptist, 643 F.Supp.2d 883 (U.S.D.C, S.D. Tex.

Brownsville, 2008).

Agency relationship: An employment for purpose of representation. In

establish legal relations between principal and third person. Black's Law

Dictionary, Sixth Edition page 63.

Real-estate agent: Person whose business it is to sell, or offer for sale, real

estate for others, or to rent houses, store, or other building, or real estate, or to

collect rent for others. Black's Law Dictionary Sixth Edition page 64.

Hallie Waller was not a fiduciary agent of Fannie Mae, no evidence was

given that Fannie Mae was the owner of the property, and the issuance of a

criminal trespass warning by a party who has no agency relationship with the

owner is a nullity.

19 ISSUE 5: Was the information insufficient and therefore defective?

Yes.

Both the United States Constitution and the Texas Constitution guarantee a

defendant the right to notice of the criminal charges against him. U. S. Const,

amend VI; Tex. Const., art 1, §10. This constitutional constraint does not prevent

the State from prosecuting or the trial court instructing the jury on a lesser-included

offense of the charged crime, even if the indictment does not expressly allege it.

See McKithan v. State, 324 S.W.3d 582, 588 (Tex.Crim.App.2010). Conversely, it

stands to reason that if there is a stated charge in the information, these

constitutional constraints would not allow a greater charge than was in the

information to be prosecuted and charged to the jury. The latter is the case in this

instance.

Appellant made a point of asking for the statute with which he was

charged.24 He asked to see the statute or be given the statute number. The court refused to give him the statute or the number of the statute, saying it was in the

jury charge. Appellant at no time in the proceeding knew what the charge against

him was.

24 RR Vol. 4 of 5, page 31, lines 9-25, page 32, page 33, page 34 lines 12 20 Swaim tells the court he would request a finding of habitation should the it

jury return a verdict of guilty.

The information must state the status of the "another", i.e. "the owner or

agent of the owner". The information simply lists another as Hallie Waller.

Neither owner nor agent of the owner appear in the information.

When the case went to the jury, Appellant was charged with Criminal

Trespass of a Habitation26, a totally different animal than Criminal Trespass. Nowhere on the information does it mention "habitation", and had it done so,

Appellant could have prepared a defense to "habitation".

The information does not state that Appellant is charged with criminal

trespass, nor does it state that Appellant is charged with criminal trespass of a

habitation. Neither is there a mention of the statute charged which Appellant had

asked for and to which Judge Perkins had told him it would be in the jury charge.

"In Point of Error No. Two, Appellant asserts that the information does not

allege criminally negligent homicide because the facts alleged show nothing more

than ordinary negligence. Appellant did not file a motion to quash or otherwise

object on this ground at trial. In the absence of an objection, this complaint is

waived." TEX.CODE CRIM.PROC.ANN. art. 1.14(b) (Vernon Supp. 1995);

Aguilar v. State, 846 S.W.2d 318, 319-20 (Tex.Crim.App. 1993); Studer v. State

25 RR Vol. 4 of 5, page 38, lines 19-25, page 39, lines 1-7 26 RR page 72, lines 5-11 21 799 S.W.2d 263, 268-73 (Tex.Crim.App. 1990) Todd v. State, 911 S.W.2d 807,

(Tex.App.—El Paso, 1995).

Appellant filed a Motion to Quash Information27, wherein at the hearing, Bill Swaim inserted: "to wit: 10820 Gerald Allen Loop, Austin, Travis County, Texas,

one of the issues complained of in the motion. Appellant gave notice the

information was defective, but it was not Appellant's duty to inform the state as to

all aspects of the irregularities.

There is a material variance between the information and the proof at trial.

The information does not state what offense Appellant is charged with, does not

state who Hallie Waller might be, (owner or agent of the owner), does not state the

owner of the property, and does not mention habitation.

ISSUE 6: Was the jury charge in harmony with the information?

No.

"The standard for determining whether the evidence is legally sufficient to

support a conviction is "whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. In Malik v. State, we

articulated the modern Texas standard for ascertaining what the "essential elements

of the crime" are; they are the elements of the offense as defined by the

27 CR page 195-196 22 hypothetically correct jury charge for the case. The hypothetically correct jury charge is one that at least "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or

unnecessarily restrict the State's theories of liability, and adequately describes the

particular offense for which the defendant is tried." Johnson v. State, 364 S.W.3d

292, (Tex.Ct.Cr.App.—2012).

In this instance, the charging instrument states: ....without the effective

consent of another, to wit: Hallie Waller." At trial, the prosecution alleged that

the owner of the property was Fannie Mae, and gave no proof as to Hallie Waller's

agency relationship or ownership. This is a material variance.

The information does not contain the words "owner" or "agent of the

owner", a necessary element of a criminal trespass. This is a material variance.

The charging instrument, the information, does not state what the offense is,

neither the statutory charge, i.e, Tex.Penal Code §30.05, nor "criminal trespass",

certainly there are no elements of criminal trespass of a habitation, or the charge of

"criminal trespass of a habitation", the charge given to the jury. This is a material

variance.

"We measure the sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge". Villarreal v. State, 286

S.W.3D 321, 327 (Tex.Crim.App. 2009)(citing Malik v. State, 953 S.W.2d 234,

23 240 (Tex.Crim.App. 1997). "Such a charge is one that accurately sets out the law,

is authorized by the indictment, does not unnecessarily increase the State's burden

of proof or unnecessarily restrict the State's theories of liability, and adequately

described the particular offense of which the defendant was tried." Gillette v. State,

No. 13-12-00454-CR and 12-12-00455-CR, (Tex.App.—Corpus Chrisi, Edinburg,

2014).

Rather than Appellant having committed criminal trespass, (he was living in

the property and had keys to the door locks, and the doors were locked on the day

that the APD, which, at the behest of a realtor, forcibly entered the property),

Waller and APD are the parties who trespassed on Appellant's property. The

doors to the residence were locked. The locks would be sufficient notice to a

naked trespasser (including APD), that entry was forbidden. See Tex.Penal Code

Ann. §32.05(b)(2)(Wst Supp.2012). The inherent nature of a habitation gives

notice that entry is forbidden. Salazar v. State, 284 S.W.3d 874, 878

(Tex.Crim.App.2009). Munns v. State, 412 S.W.3d 95, (Tex.App.—Texarkana,

2013). _ Oft The judge begins to give the charge to the jury. Judge Perkins states: Crae

Pease, stands charged by information with the offense of criminal trespass

28 RR Vol.4 of5, page 69,lines 23-25, page 70, lines 1- 29 CRpage 12 24 This is fatal error. The information does not say criminal trespass. This is a

material variance.

The judge goes on:30 "It is also an offense if the trespass is committed in a habitation or in a shelter center". This is judicial error. Nowhere in the

information does the word habitation appear, and this is a greater offense than

criminal trespass. The judge sua sponte increased the offense. This is a material

Judge Perkins has a long and lengthy dialogue with Appellant during the

discussion of the jury charge, and they discuss the fact that Hallie Waller is not the

owner of the property.31 The judge falsely assures Appellant that if the jury has been given evidence that Hallie Waller was not the owner of the property, he will

be found not guilty. This is equivalent to: "Welcome to my web, said the Spider

to the Fly."

The judge goes on to read:32 "Effective consent includes consent by a person legally authorized to act for the owner". Nowhere in the information does the

word owner appear. The word has been used throughout the trial, but, it is not

charged nor shown on the information. Hallie Waller is the only name that appears

on the information, and it does not claim she is the owner or agent for the owner.

This is fatal error and egregious harm to Appellant. This is a material variance.

30 RR Vol. 4 of 5, page 70, lines 15-17 31 RR. Vol. 4 of 5, page 56, lines 6-25, page 57, lines 1-11 32 RR. Vol. 4 of 5, page 70, lines 18-25, page 71, line 1 25 When the jury charge was being discussed, Swaim asks the court to include

a finding of habitation.33 Appellant did not object because he did not understand the significance of the action. He had requested assistance of counsel for this very

purpose, and cannot be held to the premise that it was unobjected-to jury-charge.

It was unlawful and illegal to enhance the charge to the jury in order to get a

greater conviction than the one charged, whether it was objected to or not. This is

an egregious harm to Appellant and is a material variance.

The inclusion of the word habitation throughout the trial is as follows:

Swaim wrongly stated to the jury pool in voir dire that the offense is a Class A

misdemeanor ifthe property was a habitation.34 Judge Perkins tells the jury pool in voir dire,

"Ladies and gentlemen of the jury, let me explain that an information has

been filed in this case with the accusation that we'll be going to trail on. If

you're selected as jurors, it will be your responsibility to decide whether

the State has proven their case beyond reasonable doubt. I believe that it is

alleged in the information that the premises involved are a habitation. If

you were to find the defendant guilty beyond a reasonable doubt of that,

then that would be a finding of a Class A misdemeanor."

33 RR Vol. 4 of 5, page 38, lines 22-25, page 39, lines 1-8 34 RR. Vol. 2 of 5, page 38, lines 12-13, page 57, lines 9-11 26 Again, during voir dire, the judge tells the jury pool that Class B

misdemeanor would be a lesser included offense of habitation.

And again, during voir dire, the judge tells the jury pool:

"Class B misdemeanor would be a lesser included offense of habitation.

That would be a situation where if y'all had a reasonable doubt as to

whether or not a habitation was involved then he would—but you have no

question as to guilt otherwise, then you would be empowered to find the

defendant guilty of the Class B misdemeanor. If that happened—

guilt/innocence, then the second phase of the trial on punishment would be

whetherthe punishment could be meted out for that Class B misdemeanor."

There was no charge of habitation on the information, and the judge, by his

speech, again taints the jury pool with erroneous information causing Appellant

egregious harm.

Surely the judge had read the information before beginning the case. If he

had, and it was his job to do so, his statement to the jury pool, irrevocably tainted

the jury pool with improper information. That is incurable error on the part of the

judge.

There is no more mention of habitation during the trial. The word is not

included in any testimony or on any evidence submitted to the jury. The only

35 RR. Vol. 2 of 5, page 58, lines 15-16 27 references in the transcript to habitation are in the voir dire and the jury charge.

This jury was polluted with incorrect information at voir dire and given the

incorrect choices when it deliberated. This is egregious behavior on the part of the

judge and can't be corrected.

The jury charge36 states that one of the verdicts of the jury could be: "We,

the jury, find the defendant, Crae Pease, guilty of the offense of criminal trespass

of a habitation as alleged in the information."

The charge goes on to say37, "We the jury find the defendant, Crae Pease,

not guilty of the offense of criminal trespass. If that is your verdict, then that's the

one the foreperson would sign and print their name."

Unbelievable! Find him guilty of criminal trespass of a habitation or find

him not guilty of criminal trespass!

The trial court has no jurisdiction to convict a defendant of an offense not

charged in an information unless the offense is a lesser-included offense of the

crime charged. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex.Crim.App. 1980), see

also Trejo v. State, 280 S.W. 3d 258, 260 (Tex.Crim.App.2009)(setting out that

"subject matter jurisdiction requires both a general grant of authority to the trial

court and a charging instrument that invokes that jurisdiction over the particular

case")

36 RR Vol. 4 of 5, page 75, lines 4-15 37 RRVol. 4 of 5, page 75, lines 16-19 28 In this instance there is no information charging Appellant with the offense

of criminal trespass of a habitation, the offense of criminal trespass of habitation is

not a lesser-included offense, in fact, it is a greater offense than criminal trespass.

The court was without jurisdiction to enter a judgement convicting Appellant of an

offense not charged in the information. Benavidez v. State, No. 13-07-00670-CR

(Tex.App.—Corpus Christi, 2009).

There is no question that the jury charge was in variance to the information.

There is no question that the jury pool was tainted.

There is no question that the judgment should be voided by this Court.

ISSUE 7: If Fannie Mae was the owner of the property at the time of the intrusion, why didn't it appear at trial?

Appellant makes the argument that if Fannie Mae is the owner of the

property, why hasn't Fannie Mae shown up to claim it. In point of fact, Fannie

Mae did not have clear title to the property, and on April 21, 2015, Fannie Mae

sued Grant Trevarthen and Crae Robert Pease in the 200 Judicial District of

Travis County, Texas, Cause No. D-l-GN-15-001573 for quiet title.

If Fannie Mae held clear title on December 11, 2013, why did it file suit for

quiet title on April 21, 2015?

38 RR Vol. 4 of 5, page 88, lines 1-4 29 ISSUE 8: Who was the inhabitant of the property when Appellant got the criminal trespass warning?

If Appellant committed criminal trespass of a habitation, the Court needs to

know who was inhabiting the residence at the time? When the APD and Waller

broke in, Appellant was the inhabitant of the property. Can one commit criminal

trespass of a habitation when he is lives on the property? If the prosecution wanted

to delude the jury into believing the property was a habitation, who was the

inhabitant? Was it Fannie Mae, was it Hallie Waller? On the day that APD were

stalking him and he did not go in the house, the "habitation" had been sitting

vacant for 7 months.

ISSUE 9: Did the prosecution prove the necessary elements of the information, namely, that Appellant knowingly and intentionally entered the property of another? No.

Appellant believed so strongly in his right to title, that it could not be proven

that he knowingly and intentionally entered the property of another.

Appellant had a quit claim deed which was the last deed filed in public

record39. He had a Judicial Finding of Fact and Conclusion of Law filed in public record, which complies with Tex.Prop.Code §51.902.

39 CR pages 653-655, Abstractor's Certificate of Abstract. 30 Appellant lived in the house for 3 years until the APD forcibly entered the

property. Everyone knew he lived there. All anyone had to do was look in public

records and see the last one to hold deed to the property.

There is no question that Crae Robert Pease was the titled owner of the

property on the fateful day the man with the battering ram came.

It is not enough to say the property of another, the "another" must be

identified as either the owner or the agent of the owner.

The Texas Legislature understood it was protecting the "property of

another" hose "ownership" and concomitant rights are exclusive against intruders

who have no right to possession whatsoever. Vanderburg v. State 842 S.W.2d 286,

at 288-289 (Tex.App.—Houston [1st} 1988)

Criminal trespass cases obviously presuppose that the 'property of another'

contemplates 'ownership' in the sense of'belonging to' 'possessed by' or 'held by'

some person other than the alleged trespasser who is bereft of any such

'ownership'. Kinsey v. State, 861 S.W.2d 383 at 385-386 (Tex.Cr.App.1993)

(Clinton, J. concurring).

"Article I, section 10 of the Texas Constitution "guarantees an accused the right to be informed of the nature and cause of the accusation against him in a criminal prosecution." Ward v. State, 829 S.W.2d 787, 794 (Tex.Crim.App. 1992). This information must come from the face of the indictment. Id; see e.g. Benoit v. State, 561 S.W.2d 810, 813 (Tex.Crim.App. 1977); Wilson v. State, 520 S.W.2d 377, 379 (Tex.Crim.App. 1975). The accused is not required to look elsewhere.

31 Baker v. State, 123 Tex.Crim. 209, 58 S.W.2d 534, 534-35 (1933} (indictment alleging that defendant unlawfully possessed an unspecified narcotic gave insufficient notice). When writing on this notice requirement, then Presiding Judge Onion stated for the Court of Criminal Appeals: It is, of course, not sufficient to say that the accused knew with what offense he was charged, but the inquiry must be whether the charge in writing furnished that information in plain and intelligible language.

Benoit v. State , 561 S.W.2d 810, at 813; Moore v. State, 473 S.W.2d 523, 523-24

(Tex.Crim.App. 1971).

This fundamental guarantee enables the accused to learn in advance of trial,

and with reasonable certainty, the charge against him so that he can properly

prepare his defense. Wilson, 520 S.W.2d at 379. "[T]he accused is not required to

anticipate any and all variant facts the State might hypothetically seek to establish."

Brasfieldv. State, 600 S.W.2d 288, 295 (Tex.Crim.App.1980), overruled on other

grounds, Janecka v. State, 739 S.W.2d 813, 819 (Tex.Crim.App. 1987); Drumm v.

State, 560 S.W.2d 944, 947 (Tex. Crim.App.1977).

If the indictment affects the defendant's ability to prepare his defense, then it

is a defect of substance and the motion to quash should be granted. Janecka v.

State, 823 S.W.2d232, 232-38 (Tex. Crim.App.1990)

Since the information in this case named Hallie Waller, not as owner or

agent of the owner, the state had the burden of proving she had a greater right to

possession than the man who was living there.

32 The state made the case that the owner of the property was Fannie Mae, not

Ms. Waller, however, in the information Hallie Waller was described as "another".

This connotes ownership or greaterrightto ownership than Appellant.

How did the state prove its case when it continued to say Fannie Mae owned

the property, not Appellant. The information did not reflect the name of Fannie

Mae, it reflected the name of Hallie Waller, as "another".

During witness testimony, Ms. Waller, when asked who was listed as the

owner by TCAD, stated "Fannie Mae".40 At no time did Hallie Waller claim she was the owner of the property. All times Ms. Waller said she was acting on behalf

of Fannie Mae.

The state did not amend the information to reflect Fannie Mae, nor did it

prove a fiduciary relationship between Ms. Waller and Fannie Mae.

In Bill Harthcock's testimony, when he was asked about ownership, he

replied, "All of the factors that I saw indicated that Mr. Pease was the owner. All

the public records indicated so.41 The prosecution would have the jury believe that the last title appearing in

public record does not indicate ownership of the property, and that Hallie Waller's

real estate contract supersedeas public record. This is an incorrect legal

conclusion, but it was sufficient to confuse the jury.

40 RRVol. 3 of 5, page 129 line 7 41 RRVol. 4 of 5, page 16, line 5-7 33 ISSUE 10: How harmful to Appellant was the denial of assistance of counsel?

Extremely harmful

Appellant asked for and was refused standby counsel in the trial of this case.

The Texas Constitution at art. 1, Sec. 10 guarantees the right to be heard by

himself or counsel, or both. Judge Perkins denied this inviolate constitutional right

to counsel. The reason Appellant wanted standby counsel is, although he knew his

case well, he is ignorant in trial procedure, i.e., how and when to object, how to

preserve issues for appeal. As a result, he was grievously harmed by the lack of

counsel and the judge denied him a guaranteed constitutional right.

In addition to denying him the right to counsel, the judge did not admonish

him of the dangers of proceeding to trial without counsel.

The right to the assistance of counsel is applicable to both the trial [Gideon

v. Wainwright, 372 U.S 335, 83 S.Ct 792, 9 L. Ed 2d 799 (1963); Exparte Auten,

458 S.W.2d 466 (Tex.Cr.App.1970); Ex parte Hope, 374 S.W.2d 441,

(Tex.Cr.App.1964)] and the appeal [Douglas v. California, 372 U.S.353, 82 S.Ct.

814, 9 L.Ed. 2d 811 (1963); Exparte Coleman, 455 S.W.2d 209 (Tex.Cr.Ap.1970);

Ex parte Gordon, 439 S.W.2d 354 (Tex.Cr.App.1969); Ex parte Marshall, 445

S.W.2d 22 (Tex.Cr.App.1969)] of a criminal case.

Appellant asked the judge for assistance of counsel and was refused, a denial

of a constitutional right and right to due process.

34 Appellant is also entitled to assistance of counsel to write an appeal.

Appellant was denied that right as well. Is that egregious harm to Appellant?

Most certainly.

Appellant was twice presented with forms which waived his right to counsel.

Since he did not believe he needed an attorney appointed during the hearings phase

of this charge, and he was not ever going to make a plea, at first, he signed the

form, Nein Danke,42 as he did not want to waive his right to counsel. When Swaim

discovered that Appellant had not agreed to the form, Swaim threatened him with

contempt of court and jail if he did not sign it. As a result, Appellant signed

"under duress". 43 Swaim could not consider that a legal binding document when it

clearly preserves Appellant's right.

Appellant asserts that the practice ofthe criminal courts to coerce an accused

to sign a waiver of attorney is unconstitutional. The Texas Constitution, art. 1

Sec. 10, guarantees the right to the accused in a criminal trial of being heard by

himself or counsel, or both. Yet, it is a standard policy and practice of the criminal

courts in Texas to compel a defendant to sign a waiver of attorney form at the

beginning of appearances in a criminal court in violation of the constitution.

The Texas Constitution art. 1, Sec. 29, PROVISIONS OF BILL OF RIGHT EXCEPTED FROM POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE. To guard against transgressions of the high powers

42 CR page 14 43 CR page 15 35 herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

Appellant asserts that the mere fact that this form is printed and a defendant

is compelled to sign it in the early stages, or at any point of the prosecution, is

unconstitutional. The rights enumerated in the Texas Bill of Rights are inviolate.

Inviolate means untouchable, unsullied, unbroken, pure, intact, unscathed,

unharmed. In other words, inviolate rights cannot be signed away, they are always

there. No signature on a form titled Waiver of Counsel could do away with or

interfere with inviolate rights. It is not possible. No matter what, inviolate rights

are always there.

Woodward v. State, 322 S.W.3d 648, (Tex.Crim.App. 2010) sets the

egregious harm standard as it applies to unobjected-submission of unindicted

offense injury charge. The degree of harm must be evaluated in light of the entire

record. Under the Egregious harm standard, the court reviews the alleged charge

error by considering (1) the entirety of the charge itself, (2) the evidence, (3) the

arguments of counsel, and (4) other relevant information revealed by the record.

See Sanchez v. State, 209 S.W.3d 117, 121 (Tex.Crim.App. 2006); Almanza v.

State, 686 S.W.2d 157 at 171 (Tex.Crim.App. 1984).

"The trial court charged the jury on criminal trespass of a habitation—an

offense that was neither expressly charged in the information nor implicitly 36 charged in the indictment as a lesser-included offense of the crime charged. In

point of fact, it is a greater offense than criminal trespass." See Trejo v. State, 313

S.W.3d870, 872 (Tex.App.—Houston [14th Dist.] 2010, pet.refd). During voir dire Swaim states44, "This offense is a Class A misdemeanor if the property was a habitation. Habitation. And in that case the penalty is

potentially up to a year in jail and a $4,000 fine. Otherwise, criminal trespass is a

class B misdemeanor, 180 days, and $2,000. That's the maximum punishment for

either of those two versions of this offense." (There is further discussion with the

jury pool on the Class A and Class B misdemeanors. RR Vol. 2 of 5, page 38,

lines 12-18, page 56, lines 21-25, page 57, lines 2-8, page 57, lines 9-16. At page

57, line 25 and page 58, lines 1-4, Swaim tells the jury it is alleged in the

information that the premises involved are a habitation. This constitutes absolute

prosecutorial misconduct.

Swaim goes on planting erroneous seeds in the jurors mind at RR Vol. 2 of

5, page 58, lines 15-24.

The Court told the jury pool at RR Vol. 2 of 5, page 58, lines 15-24, that the

Class B misdemeanor would be a less included offense of habitation. Again,

44 RR Vol.2 of 5, page 38, lines 12-18.

37 poisoning the jury pool. There was no charge of criminal trespass of a habitation.

The word is not in the information, but it is in the jury charge.

ISSUE 11: Did the fact that the judge refused to include the affirmative defense to criminal trespass in the jury charge have any effect in the outcome?

It can be no clearer that the court committed error than the argument

Appellant offered concerning "the mistake of error".45 When Appellant asks for instruction to be given on an affirmative defense46, the court goes to great lengths to explain to him47why that would be to his detriment, and Appellant explains that he wants the jury to be aware that it is a defense to criminal trespass if he

believed himself to be the owner of the property. The court deflected and won't

agree to the jury knowing they can find him not guilty if they believed him when

he over and over expressed he was the owner of the property. The court

committed error by not including the affirmative defense.

Swaim joined in and objected to the jury being told of the affirmative

defense.49

The Texas penal statute for criminal trespass is Texas Penal code 30.05. The

jury charge included the definition of "habitation" which is not applicable in this

instance. The jury charge starts out that Crae Pease stands charged by information

45 RR Vol. 4 of 5, page 39,lines 9-25, page 40,page 41,page 42 46 RR Vol. 4 of 5, page 42, line 25,page 45, lines 23-25, page 46, line 1 47 RR Vol. 4 of 5, page 44, lines 6-20 48 RR Vol. 4 of 5,page 44, lines 21-25 49 RR Vol. 4 of 5, page 46, lines 2-25, page 47, page 48,pag 49, page 50, page 51, page 52, page 53, page 54,page 55, page 57, page 58, page 59,

38 with the offense of criminal trespass.. .50 and goes on to state that "you will find the Defendant guilty of the of Criminal Trespass of a Habitation as alleged in the

information".51 Talk about duplicity! He is charged with criminal trespass, but

we wantyou to find him guilty of criminal trespass of a habitation.

Jones v. State, 532 S.W.2d 596, (Tex.Crim.App., 1976) is the seminal case

on the definition of habitation. Appellant's property was his residence and does

not meet the criteria as laid out in Jones. The state threw in the term "habitation"

in order to make the offense worse than it was, thereby elevating the punishment

level from Misdemeanor B to Misdemeanor A.

The jury was confused as to ownership, had no understanding of the

deficiencies of the information, and only given the choice of finding him guilty of

criminal trespass of a habitation or not guilty of criminal trespass.

Judge Perkins did not include in the jury charge that a defense to criminal

trespass is the beliefthat one owns the property, whether it was legal or not.

The jury returned the verdict of "Guilty of the offense of criminal trespass of

a habitation as alleged inthe information." 52 The other document given to the jury, their other choice was, "Not Guilty of

the offense of criminal trespass."53

50 CR page 435 51 CRpage 437, complete jury charge is CR435 to 440 52CR441 53CR442 39 Then to compound the travesty, the jury is given the Court's Charge on

Punishment, which reflects the offense of Criminal Trespass of a habitation.

Of course, the jury brought back a punishment assessed on the charge of

Criminal Trespass of a habitation.55 ISSUE 12: Did the state meet the burden of proof that Appellant trespassed on the property of another, to wit: Hallie Waller?

No

When the state named Hallie Waller, as the "another" as in "property of

another", did the state meet its burden of proof that Appellant trespassed on

property owned by Hallie Waller? No. Not even Hallie Waller claimed it was her

property or she had a superior right to the property, she only claimed she was a real

estate agent and thought she had the right to sell it for someone else.

The state never named someone else, the state named Hallie Waller as the

"another" on the information. The state did not meet its burden of proof.

CAVEAT

In the interest of judicial economy, Appellant has not enumerated the scores

of instances of cumulative prosecutorial conduct which were rampant and replete

in this trial. Should the 3rd Court of Appeals find that it does not have enough

54CR443 55CR444 40 evidence to reverse and render, Appellant reserves the right to allege further

misconduct in his Motion for En Banc hearing.

PRAYER

Appellant, Crae Robert Pease, respectfully, for the reasons stated above,

asks the Court to reverse the judgment of the trial court and render a judgment of

not guilty.

Respectfully submitted,

Crae Robert Pease 6715 Skynook Drive Austin, Texas 78745 (512)538-6099 specialcrae@yahoo.com

41 CERTIFICATE OF COMPLIANCE

I certify that this document contains 9,802 words (counting all parts of the

document). The body text is in 14 font, and the footnote text is in 12 point font.

CERTIFICATE OF SERVICE

I hereby certify by my signature above that I have served a true and correct

copy of the above and foregoing document n all counsel of record via electronic

mail n accordance with the requirements of the Texas Rules of Civil Procedure,

Rule 21a on this the 20th day of November, 2015