Arturo Lopez v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00237-CR

ARTURO LOPEZ,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the County Court
Ellis County, Texas
Trial Court No. 2310317 CR

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 raises issues regarding the sufficiency of the

evidence, the trial court’s admission of extraneous-offense evidence, and the trial court’s

denial of his motion for mistrial. We affirm.
Background

Appellant and Azucena Lopez are siblings. Azucena testified that their mother,

Elizsar Lopez, owned approximately 18 acres of property. At some point, these 18 acres

were given two separate property I.D.’s with two separate addresses. One section of the

property was identified as 2616 Wilson Road, which included a brick residence and

consisted of approximately one acre of the property. The remaining section of the

property was identified as 2588 Wilson Road, which was used as farm land. When Elizsar

owned the property, she gave Appellant permission to live in a mobile home at 2588

Wilson Road. The bank repossessed the mobile home on March 26, 2021. Appellant then

began living in a shed at the 2588 Wilson Road address. This shed was described as

uninhabitable, with no running water, no electricity, and water damage.

Azucena testified that Elizsar transferred the entire 18-acre property to her on

March 30, 2021, just a few days after the mobile home was repossessed. The deed

transferring the property from Elizsar to Azucena was admitted into evidence at trial.

Azucena moved into the residence at 2616 Wilson Road with her spouse and two step-

children. She testified that she never gave Appellant permission to live in the shed at

2588 Wilson Road and eventually initiated eviction proceedings to force him to leave. In

June or July of 2021, after posting an eviction notice on the shed door and attending a

hearing at which Appellant did not appear, the court granted the eviction. However,

Appellant was not physically removed from the property because he went to Mexico.

Lopez v. State Page 2
On July 29, 2021, law enforcement officers issued a written criminal trespass

warning to Appellant for the 2616 Wilson Road address. On that occasion, Appellant had

run an extension cord from the residence at 2616 Wilson Road to pull electricity from the

residence to the shed. On June 19, 2022, Appellant was arrested for criminally trespassing

again at the 2616 Wilson Road address. On that occasion, Appellant jumped the fence

surrounding the 2616 Wilson Road property and took water from a spigot at the

residence.1 After this incident, Azucena combined 2588 Wilson Road and 2616 Wilson

Road into one property I.D. so that both sections of the property would be identified as

2616 Wilson Road.

The instant offense occurred on December 15, 2022. At about nine p.m., Azucena

saw a flashlight beam in the shed on the former 2588 Wilson Road portion of the property

and called the police. When law enforcement officers arrived, they found Appellant

inside of the shed. Appellant was arrested for criminal trespass after explaining that he

had been living in the shed, without Azucena’s permission, since he was released from

jail approximately 8 days earlier.

1We affirmed Appellant’s conviction for this offense on June 7, 2023 in Lopez v. State, No. 10-22-00373-CR,
2023 Tex. App. LEXIS 3885, 2023 WL 3868777 (Tex. App.—Waco June 7, 2023, no pet.) (mem. op.).

Lopez v. State Page 3
Insufficient Evidence

In his first issue, Appellant argues that the State failed to present sufficient

evidence that on December 15, 2022, he (1) entered or remained on “the property of

another” and (2) had adequate notice that entry was forbidden. 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
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
Lopez v. State Page 4
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

this case alleged that on or about December 15, 2022, 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.”

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
Lopez v. State Page 5
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.2

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-

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. At trial, the jury heard evidence that

when Elizsar owned the property, she allowed Appellant to live in a mobile home on the

section of the property then-identified as 2588 Wilson Road. This mobile home was not

owned by Appellant or Elizsar; rather, it was owned by an unidentified sibling. When

that sibling failed to make payments on the mobile home, it was repossessed by the bank.

2At trial, Appellant challenged the legitimacy of Azucena’s ownership of the property. He does not do so
on appeal.

Lopez v. State Page 6
We have found no evidence in the record that Appellant was authorized by Elizsar to

occupy the shed or any other structure at the 2588 Wilson Road address after the mobile

home was repossessed. Shortly after the mobile home was removed, Elizsar deeded the

entire 18-acre property to Azucena. It is undisputed that Azucena never gave Appellant

permission to occupy the shed or any other structure on the property at the 2588 Wilson

Road address. Additionally, a body camera video from the night of the offense was

admitted without objection and played for the jury. Appellant admitted on video that he

was staying in the shed without Azucena’s permission. However, because of his belief

that Azucena acquired the property through familial and governmental corruption,

Appellant indicated that he would continue to return to the property despite knowing he

would continue to be arrested for trespassing.3

The jury heard the conflicting evidence regarding Appellant’s right to access the

property, and we presume the jury resolved the conflict in favor of the verdict. We find

that the evidence was sufficient for the jury to reasonably conclude that Appellant had

no legal right to enter the property and that he entered the property “of another” as

contemplated by statute. See TEX. PENAL CODE ANN. § 30.05.

3 The jury also heard testimony that Azucena obtained a judgment granting her petition to evict Appellant
from the property, and Appellant indicated on video that he was aware of the eviction proceedings. See
TEX. PROP. CODE ANN. Title 8. We need not address Appellant’s argument 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 7
Notice of Forbidden Entry

Appellant argues that there was insufficient evidence to prove that he received

notice that entry onto the property was forbidden. His argument is based on the written

criminal trespass warning issued for the 2616 Wilson Road address before it was

combined with the 2588 Wilson Road address. He claims that because the written

criminal trespass warning did not apply to 2588 Wilson Road when it was issued, no

reasonable juror could conclude that he had notice that entry onto that portion of the

property was forbidden.

However, “notice” for purposes of criminal trespass does not require a formally-

issued criminal trespass warning by law enforcement. Notice can include oral or written

communication by the owner or someone with apparent authority to act for the owner.

See id. at § 30.05(b)(2)(A). Azucena testified that she told Appellant that he needed to

leave the property – including the shed in which he was located – three or four times

before this incident. She also testified that she provided written notice to Appellant that

he was forbidden from entering the property by posting an eviction notice on the door of

the shed. Appellant indicated on video that he was aware of the eviction proceedings.

Further, testimony established that the entire property was fenced, which serves as

another statutorily acceptable form of notice that entry is forbidden. See id. at §

30.05(b)(2)(B). On video, Appellant explained to law enforcement officers that he

considered the two addresses “all the same land.” He admitted to law enforcement

Lopez v. State Page 8
officers that he was choosing to enter the property despite his awareness that Azucena

did not want him there because he was trying to prove a point. We conclude that there

was sufficient evidence for a jury to determine that Appellant had notice that entry onto

the property was forbidden.

Accordingly, we overrule Appellant’s first issue.

Extraneous Evidence

In his second issue, Appellant asserts that the trial court abused its discretion by

admitting extraneous-offense evidence regarding Appellant’s arrest for criminal trespass

at the 2616 Wilson Road address on June 19, 2022, before the two addresses were

combined into the single address of 2616 Wilson Road. We disagree.

STANDARD OF REVIEW AND RELEVANT LAW

We review the trial court’s admission of extraneous-offense evidence for an abuse

of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the trial

court’s ruling is within the zone of reasonable disagreement, there is no abuse of

discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). Evidence of other

crimes, wrongs, or acts is not admissible to prove a person's character in order to show

action in conformity therewith. See TEX. R. EVID. 404(b). If extraneous-offense evidence

has relevance apart from character conformity, it is admissible if the proponent

persuades the trial court that it tends to establish some elemental or evidentiary fact, or

Lopez v. State Page 9
that it rebuts a defensive theory. Santellan v. State, 939 S.W.2d 155, 168-69 (Tex. Crim.

App. 1997).

DISCUSSION

The trial court did not abuse its discretion by admitting the extraneous-offense

evidence because it was relevant for non-propensity purposes. The State was required to

prove in this case that Appellant had notice that his entry onto the property was

forbidden. At the time of the instant offense, both the 2588 Wilson Road address and

2616 Wilson Road address had been combined under one property I.D., and the entire

18-acres of property was identified as 2616 Wilson Road. One of Appellant’s defensive

theories at trial was that his written notice not to enter the former, one-acre 2616 Wilson

Road address could not be imputed to him as notice not to enter the former 2588 Wilson

Road portion of the property because the addresses were still separate when the written

trespass warning was issued. However, Appellant’s arrest for the criminal trespass

offense at the former one-acre 2616 Wilson Road address on June 19, 2022, in conjunction

with Appellant’s verbal indication on video that he considered the two addresses as “all

the same land,” tended to prove that Appellant had notice he was prohibited from

entering the portion of property where he was found by law enforcement in the instant

case. See TEX. R. EVID. 401.

Further, "overruling an objection to evidence will not result in reversal when other

such evidence was received without objection, either before or after the complained-of

Lopez v. State Page 10
ruling." Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Here, Azucena was

the State’s first witness at trial. She testified, without objection from defense counsel as

to the relevance of the extraneous offense, that Appellant was arrested in June of 2022

because he returned to her property after he had been issued a criminal trespass warning

by law enforcement. Defense counsel also cross-examined her about the extraneous

incident. Using photographs of the property, Appellant’s counsel asked Azucena to

identify the location of the spigot from which Appellant took water and pinpoint where

he was jumping the fence to enter the 2616 Wilson Road property. Appellant’s trial

counsel did not object to the relevance of the extraneous offense until Deputy Hightower

– an officer who responded to the scene of the extraneous offense – testified about it as

the State’s third witness at trial. Any error in admitting Deputy Hightower’s testimony

about the extraneous offense was cured because the same evidence was admitted

elsewhere without objection. See Leday, 983 S.W.2d at 718.

Accordingly, Appellant’s second issue is overruled.

Denial of Motion for Mistrial

In his third issue, Appellant claims that the trial court abused its discretion by

denying his motion for mistrial after the State elicited testimony that he threatened

Azucena and her family. We disagree.

Lopez v. State Page 11
STANDARD OF REVIEW AND RELEVANT LAW

We review a trial court’s denial of a motion for mistrial for an abuse of discretion.

Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). A mistrial is an extreme

remedy that is appropriate when improper conduct is “so prejudicial that expenditure of

further time and expense would be wasteful and futile.” See Ladd v. State, 3 S.W.3d 547,

567 (Tex. Crim. App. 1999). In reviewing a trial court’s denial of a motion for mistrial,

"[a]n appellate court views the evidence in the light most favorable to the trial court's

ruling, considering only those arguments before the court at the time of the ruling." Ocon

v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We have previously explained:

[T]he appropriate test for evaluating whether the trial court abused its
discretion in overruling a motion for mistrial is a tailored version of the test
originally set out in Mosley v. State, 983 S.W.2d 249, 259-60 (Tex. Crim. App.
1998), a harm analysis case. See Hawkins [v. State], 135 S.W.3d [72,] 77 [(Tex.
Crim. App. 2004)]. The Mosley factors that we consider in determining
whether the trial court abused its discretion in denying a mistrial . . . are:
(1) the prejudicial effect, (2) curative measures, and (3) the certainty of
conviction absent the misconduct. [See id.;] Mosley, 983 S.W.2d at 259.

Watson v. State, No. 10-14-00359-CR, 2016 Tex. App. LEXIS 6580, 2016 WL 3452777, at *6

(Tex. App.—Waco June 22, 2016, no pet.) (mem. op., not designated for publication)

(quoting Abbott v. State, 196 S.W.3d 334, 347 (Tex. App.—Waco 2006, pet ref'd)). Further,

instructions to the jury are generally considered sufficient to cure improprieties that occur

during trial, and we generally presume that a jury will follow the trial court’s instructions.

See Gamboa, 296 S.W.3d at 580.

Lopez v. State Page 12
DISCUSSION

The State questioned Azucena about why Appellant’s presence on her property

concerned her. Azucena described how Appellant would become verbally aggressive

toward her and how Appellant had stolen things from other family members when they

lived on the property. The following complained-of line of questioning occurred:

[The State]: Okay. Does that have you concerned about him being on the
property when you’re there?
[Azucena]: Yes.
[The State]: Okay. Has he ever made any threats to your wife or your
children?
[Azucena]: Yes.
[The State]: And what were those threats?
[Azucena]: I’m going to kill you. I’m going to get someone to rape you.

Appellant’s trial counsel objected that the State had not provided notice of these

extraneous acts. The trial court sustained the objection and, at defense counsel’s request,

instructed the jury to disregard the testimony. Appellant’s trial counsel also moved for

a mistrial, which the trial court denied. Appellant argues that this evidence was so

inflammatory that a mistrial was the only appropriate remedy to cure the improper

conduct.

Considering the Mosely factors, the complained-of question and answer were not

so extreme that any prejudice could not be cured by the trial court’s instruction to

disregard the testimony. Evidence supporting the conviction was strong, including

Appellant’s statements on video indicating his awareness that he was prohibited from

entering the property but planned to continually return to it, despite knowing he would

be arrested. Further, we presume that the jury followed the trial court’s instruction to

Lopez v. State Page 13
“disregard that answer and just focus on the allegations made in this case[,]” and no

evidence was presented to rebut this presumption. Accordingly, the trial court did not

abuse its discretion in denying Appellant’s motion for mistrial. Appellant’s third issue is

overruled.

Conclusion

Having overruled all of Appellant’s issues 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 August 8, 2024
[CR25]

Lopez v. State Page 14