Arturo Lopez v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00260-CR

ARTURO LOPEZ,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the County Court at Law No. 3
Ellis County, Texas
Trial Court No. 2310434CR

MEMORANDUM OPINION

After a jury trial, Appellant, Arturo Lopez, was convicted of the offense of criminal

trespass and sentenced to 180 days in the Ellis County Jail. See TEX. PENAL CODE ANN. §

30.05(a), (d)(1). On appeal, Appellant challenges the sufficiency of the evidence

supporting his conviction. We affirm the judgment of the trial court.
Background

This case involves an ongoing dispute between siblings — Appellant and Azucena

Lopez — regarding approximately 18-acres of land transferred from their mother to

Azucena in 2021. The subject property was divided into two sections and each section

was listed under a separate address – 2616 Wilson Road and 2588 Wilson Road. While

their mother still owned the property, she permitted Appellant to live in a mobile home

at 2588 Wilson Road. However, due to nonpayment, the mobile home was removed from

the property and Appellant began living in a shed at the same address. The shed had no

water or electricity. When the subject property was transferred to Azucena, she and her

family moved into a residence at 2616 Wilson Road. Azucena informed Appellant that

he was not permitted to live on the property, but he refused to leave.

In July of 2021, law enforcement officers issued a formal, written criminal trespass

warning to Appellant for 2616 Wilson Road. This incident involved Appellant running

an extension cord from the house at 2616 Wilson Road to the shed where he was staying

in an attempt to get electricity to the shed. Because Appellant refused to leave the shed,

Azucena initiated eviction proceedings. Azucena posted a notice on the shed door telling

Appellant to vacate the premises. After obtaining a judgment ordering Appellant’s

eviction, Azucena attempted to have Appellant physically removed from the property.

However, because Appellant had left the country, the constable’s office told Azucena

they were unable to remove Appellant and his personal belongings from the shed.

Lopez v. State Page 2
In June of 2022, Appellant was arrested for violating the criminal trespass warning

when he returned to 2616 Wilson Road and took water from an outdoor spigot at the

residence. After this incident, in an attempt to clear up ongoing confusion over the

property having two addresses, Azucena combined the two addresses under the 2616

Wilson Road address. On December 15, 2022, Appellant returned to the shed and was

arrested for criminal trespass. Less than 24 hours after Appellant was released from jail,

on January 14, 2023, he returned to the shed and was arrested again for criminal trespass.

Sufficiency of the Evidence

Appellant contests the sufficiency of the evidence that on January 14, 2023, he (1)

had notice that he was prohibited from entering the property, and (2) was on the property

“of another.” We disagree.

STANDARD OF REVIEW

The Court of Criminal Appeals has expressed our standard of review of sufficiency

issues as follows:

When addressing a challenge to the sufficiency of the evidence, we consider
whether, after viewing all of the evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 61 L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227, 232 (Tex.
Crim. App. 2017). This standard requires the appellate court to defer “to
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.” Jackson, 443 U.S. at 319. We may not re-weigh
the evidence or substitute our judgment for that of the factfinder. Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The court conducting
a sufficiency review must not engage in a “divide and conquer” strategy
Lopez v. State Page 3
but must consider the cumulative force of all the evidence. Villa, 514 S.W.3d
at 232. Although juries may not speculate about the meaning of facts or
evidence, juries are permitted to draw any reasonable inferences from the
facts so long as each inference is supported by the evidence presented at
trial. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016) (citing Jackson,
443 U.S. at 319); see also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App.
2007). We presume that the factfinder resolved any conflicting inferences
from the evidence in favor of the verdict, and we defer to that resolution.
Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This is because
the jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Brooks v. State, 323
S.W.3d 893, 899 (Tex. Crim. App. 2010). Direct evidence and circumstantial
evidence are equally probative, and circumstantial evidence alone may be
sufficient to uphold a conviction so long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction. Ramsey
v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at
13.

We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to “the elements of the offense as
defined by the hypothetically correct jury charge for the case.” Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury 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
describes the particular offense for which the defendant was tried.” Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law
as authorized by the indictment” includes the statutory elements of the
offense and those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

DISCUSSION

A person commits the offense of criminal trespass 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.” See TEX. PENAL CODE ANN. § 30.05(a)(1). The information in
Lopez v. State Page 4
this case alleged that on or about January 14, 2023, Appellant “did then and there

intentionally and knowingly enter property of another, namely Azucena Lopez, hereafter

styled the complainant, without the effective consent of the complainant, and [Appellant]

had notice that the entry was forbidden.”

Notice of Forbidden Entry

Appellant’s argument focuses solely on the written criminal trespass warning

issued by law enforcement officers applicable to 2616 Wilson Road. He argues that

because the criminal trespass warning was issued when the property still had two

separate addresses, his notice not to enter 2616 Wilson Road should not constitute notice

that he was forbidden to enter the section of the property formerly known as 2588 Wilson

Road. However, “notice” also includes oral or written communication by the owner or

someone authorized to act on the owner’s behalf. See id. at § 30.05(b)(2)(A). Azucena

testified that she told Appellant that he was not allowed on the subject property prior to

this incident, including the area formerly identified as 2588 Wilson Road. Azucena also

provided written notice that Appellant was not permitted on the property by posting an

eviction notice on the shed door. Additionally, “fencing or other enclosure obviously

designed to exclude intruders” can serve as notice that entry onto property is forbidden.

See id. at § 30.05(b)(2)(B). The entire property was fenced and there were chains and locks

on the gates. According to the record, Appellant would climb the fence to access the

property. Azucena also testified that she had placed locks on the shed that had been

Lopez v. State Page 5
broken. Notably, Appellant was also arrested on December 15, 2022 for criminally

trespassing on the exact same portion of the property where he was located in the instant

case. Appellant then returned to the prohibited property less than 24 hours after his

release from jail. We find that the evidence was sufficient for a jury to conclude that

Appellant had notice that entry onto the property where he was located was forbidden.

Property “of Another”

The Texas Penal Code defines “another” as a person “other than the actor.” See id.

at § 1.07(a)(5). Appellant asserts that the evidence was insufficient to establish that he

entered the property “of another” because the State failed to negate his claim of right to

access the property as a tenant who was purportedly not properly evicted.1

The Texas Penal Code does not define “tenant.” However, according to the Texas

Property Code, a “tenant” of residential real property is, in relevant part, “a person who

is authorized by a lease to occupy a dwelling to the exclusion of others.” TEX. PROP. CODE

ANN. § 92.001(6). In addressing an appellant’s tenancy argument in a criminal trespass

case, the Austin Court of Appeals summarized tenancy caselaw by stating, “it appears

that a tenancy creating an estate in real property requires an express written or oral lease-

contract or a lease-contract implied from the circumstances and acts of the parties

showing an intent to become landlord and tenant.” See Tossow v. State, No. 03-02-00308-

1At trial, Appellant challenged the legitimacy of Azucena’s ownership of the property. He does not do so
on appeal.

Lopez v. State Page 6
CR, 2003 Tex. App. LEXIS 1910, 2003 WL 738331, at *8-9 (Tex. App.—Austin Mar. 6, 2003,

no pet.) (mem. op.).

The evidence was sufficient for the jury to conclude that Appellant did not have a

right to access the property as a tenant or otherwise. The jury heard evidence that

Appellant believed that the property was wrongfully taken from his deceased father and

that he believed he had a right to access the property. Testimony at trial established that

Appellant did not provide any documentation to law enforcement officers to support his

claim to the property. Additionally, Azucena, her spouse, and law enforcement officers

testified that Azucena owned the subject property. There was also testimony that

Azucena paid the taxes on the property and that the tax appraisal district listed her as the

owner. A deed indicating that Azucena owned the subject property was also admitted

into evidence at trial. Further, it was undisputed that Azucena did not give Appellant

permission to occupy the shed or any other structure on the property. Although he

contested the legitimacy of Azucena’s ownership and her authority to exclude him from

the property, Appellant indicated to law enforcement officers that he was aware the

property was listed under Azucena’s name and that he did not have her permission to

enter the property. We presume that the jury resolved this conflicting evidence in favor

of the verdict.2 Considering the evidence in the light most favorable to the verdict, the

2At trial, the jury also heard evidence that Azucena obtained a judgment granting her petition to evict
Appellant from the property. See TEX. PROP. CODE ANN. Title 8. We need not address Appellant’s argument

Lopez v. State Page 7
evidence was sufficient for a jury to conclude that Appellant had no legal claim to the

property and to find that Appellant was on the property “of another.” See TEX. PENAL

CODE ANN. § 30.05.

Accordingly, we overrule Appellant’s sole issue on appeal.

Conclusion

Having overruled Appellant’s sole issue on appeal, we affirm the judgment of the

trial court.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed on August 8, 2024
[CR25]

regarding the adequacy of the eviction because we find the evidence was sufficient for the jury to conclude
Appellant had no legal right to access the property.

Lopez v. State Page 8