TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00517-CR
v.
The State of Texas, Appellee
NO. 463-573, HONORABLE FRED A. MOORE, JUDGE PRESIDING
The factual background resulting in the prosecution of appellant appears to be undisputed. The Battle Oaks room at the University of Texas is restricted to current faculty, staff, and students. While University police were "doing a walk through patrol" in December 1995 they discovered that appellant did not possess a valid I.D. card. After being warned that he was in violation of the law prohibiting criminal trespass, appellant was asked to sign a receipt that he understood the warning. Appellant was argumentative, stating that there was no warning sign to advise him that his entrance was forbidden, and appellant refused to sign the receipt. The officers acknowledged that there had been a problem about people tearing down the warning signs about eligibility for admittance, and opined that there was probably no warning sign on the occasion in question. When appellant stated that he was refusing to leave the Battle-Oaks room, he was placed under arrest for criminal trespass.
Applicable to the instant cause, the offense of criminal trespass, Tex. Penal Code § 30.05 provides in pertinent part:
(a) A person commits an offense if he enters or remains on property or in a building of another without effective consent and he:
(1) had notice that the entry was forbidden; or
(2) received notice to depart but failed to do so.
(b) For purposes of this section:
(1) "Entry" means the intrusion of the entire body.
(2) "Notice" means:
(A) oral or written communication by the owner or someone with apparent authority to act for the owner;
(B) fencing or other enclosure obviously designed to exclude intruders or to contain livestock;
(C) a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden; or . . .
Omitting the formal portions, the information alleged:
TERRANCE STEWART, the Defendant, on or about the 19th day of November, A.D. 1995, did then and there and without the effective consent of another, to wit: MIKE BUCKLEY, intentionally and knowingly remain in the building of another and the Defendant did then and there have prior notice by oral communication from Officer L. MILKS, one with apparent authority to act for the owner, indicating that remaining there was forbidden.
Appellant claims the information was invalid because it did not allege that appellant failed to depart after having received oral notice to depart. The thrust of appellant's argument appears to be that the allegation that appellant did intentionally and knowingly remain does not satisfy the statutory requirement that he failed to depart.
Our research has resulted in finding only one case that has considered the meaning of the word remain. See Liquor Control Board v. Johnson, 298 S.W.2d 227 (Tex. Crim. App. 1957). In Johnson, the court stated that one of the definitions given the word remain in Webster's International Dictionary was: "To stay behind after others have withdrawn." Id. at 231. (1) The two-prong requirements of a charging instrument are that it must accuse a person of a crime with enough clarity to identify the penal statute under which the State intends to prosecute, and it must contain language sufficient to make it possible for the defendant to know with what offense he has been charged. See Duron v. State, 956 S.W.2d 547, 547-49 (Tex. Crim. App. 1997).
Reading the information as a whole, and taking into consideration the subject matter and context in which the words are employed, we find that the meaning of the information clearly conveys that appellant failed to depart. See Butler v. State, 551 S.W.2d 412, 413 (Tex. Crim. App. 1997). To hold otherwise would be tantamount to turning the clock back to the time when it was held that an averment in an indictment that the victim was killed by drowning was not sufficient to inform the defendant whether life was deprived by immersion in water or other liquid. See Gragg v. State, 186 S.W.2d 243 (Tex. Crim. App. 1945). (2) Appellant's first point is overruled.
In his second point of error, appellant contends that the trial court abused its discretion in denying his motion to quash the information because it did not put him on notice of the specific conduct upon which the State would rely for conviction so that appellant could plan his defense. We find our disposition of appellant's first point of error dispositive of this contention. Appellant's second point of error is overruled.
In his third point of error, appellant complains that the trial court erred in overruling his objection to the following paragraph of the jury charge applying the law to the facts:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 19th day of November, 1995, in Travis County, Texas, the Defendant, Terrance Stewart, did then and there and without the effective consent of another, to wit: Mike Buckley, intentionally or knowingly remain in the building of another and the Defendant did then and there have prior notice by oral communication from Officer L. Milks, one with apparent authority to act for the owner, indicating that remaining there was forbidden, you will find the defendant guilty as charged.
In essence, appellant's position is that the paragraph in question allowed the jury to convict appellant for an offense not contained in the Texas Penal Code. We find our disposition of appellant's first point of error dispositive of this contention. Appellant's third point of error is overruled.
By way of cross-point, the State suggests that the formal judgment incorrectly reflects appellant's punishment. We agree. The trial court's assessment of punishment as shown by the record and the corresponding docket entry reflects that they are at variance with the formal judgment, the trial court making it clear that it felt appellant did not need to go to jail and probated $600 of the $800 fine. This Court has the authority to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary information to do so. See Williams v. State, 911 S.W.2d 788, 790 (Tex. App.--San Antonio 1995, no pet.). Accordingly, we reform the judgment and sentence to reflect the punishment imposed by the trial court probating all of the jail confinement and $600 of the $800 fine.
As reformed, the judgment is affirmed.
Tom G. Davis, Justice
Before Chief Justice Yeakel, Justices Kidd and Davis*
Reformed and, as Reformed, Affirmed
Filed: April 9, 1998
Do Not Publish
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex.
Gov't Code Ann. § 74.003(b) (West 1988).
1. An almost identical definition is among the definitions of the word remain in the 1986 edition of
Webster's Third International Dictionary. See Webster's Third New International Dictionary, 1919
(Philip B. Gove ed., 1961).
2. "[T]he general public uniformly understands and uses the word drowning as to deprive life by
immersion in water or other liquid." De La Cruz v. Combined Am. Ins. Co., 527 S.W.2d 820, 821 (Tex.
Civ. App.--Amarillo 1975, no writ).
(Tex. Crim. App. 1997).
Reading the information as a whole, and taking into consideration the subject matter and context in which the words are employed, we find that the meaning of the information clearly conveys that appellant failed to depart. See Butler v. State, 551 S.W.2d 412, 413 (Tex. Crim. App. 1997). To hold otherwise would be tantamount to turning the clock back to the time when it was held that an averment in an indictment that the victim was killed by drowning was not sufficient to inform the defendant whether life was deprived by immersion in water or other liquid. See Gragg v. State, 186 S.W.2d 243 (Tex. Crim. App. 1945). (2) Appellant's first point is overruled.
In his second point of error, appellant contends that the trial court abused its discretion in denying his motion to quash the information because it did not put him on notice of the specific conduct upon which the State would rely for conviction so that appellant could plan his defense. We find our disposition of appellant's first point of error dispositive of this contention. Appellant's second point of error is overruled.
In his third point of error, appellant complains that the trial court erred in overruling his objection to the following paragraph of the jury charge applying the law to the facts:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 19th day of November, 1995, in Travis County, Texas, the Defendant, Terrance Stewart, did then and there and without the effective consent of another, to wit: Mike Buckley, intentionally or knowingly remain in the building of another and the Defendant did then and there have prior notice by oral communication from Officer L. Milks, one with apparent authority to act for the owner, indicating that remaining there was forbidden, you will find the defendant guilty as charged.
In essence, appellant's position is that the paragraph in question allowed the jury to convict appellant for an offense not contained in the Texas Penal Code. We find our disposition of appellant's first point of error dispositive of this contention. Appellant's third point of error is overruled.
By way of cross-point, the State suggests that the formal judgment incorrectly reflects appellant's punishment. We agree. The trial court's assessment of punishment as shown by the record and the corresponding docket entry reflects that they are at variance with the formal judgment, the trial court making it clear that it felt appellant did not need to go to jail and probated $600 of the $800 fine. This Court has the authority to correct and reform the judgment of the court below to make the record speak the truth when it has the necessary information to do so. See Williams v. State, 911 S.W.2d 788, 790 (Tex. App.--San Antonio 1995, no pet.). Accordingly, we reform the judgment and sentence to reflect the punishment imposed by the trial court probating all of the jail confinement and $600 of the $800 fine.
As reformed, the judgment is affirmed.
Tom G. Davis, Justice
Before Chief Justice Yeakel, Justices Kidd and Davis*
Reformed and, as R