Crae Robert Pease v. State

ACCEPTED
03-14-00512-CR
8281863
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/17/2015 11:37:06 AM
JEFFREY D. KYLE
No. 03-14-00512-CR CLERK

FILED IN
In the Third Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
Austin, Texas 12/17/2015 11:37:06 AM
JEFFREY D. KYLE
Clerk

CRAE ROBERT PEASE,
Appellant,

v.

THE STATE OF TEXAS,
Appellee.

On appeal from the County Court-at-Law Number Six,
Travis County, Texas
Trial Cause No. C-1-CR-13-220763

STATE’S BRIEF

DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY

GISELLE HORTON
ASSISTANT TRAVIS COUNTY ATTORNEY
State Bar Number 10018000
Post Office Box 1748
Austin, Texas 78767
Telephone: (512)854-9415
TCAppellate@traviscountytx.gov

December 17, 2015 ATTORNEYS FOR THE STATE OF TEXAS

ORAL ARGUMENT IS NOT REQUESTED
 TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF THE STATE’S ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT

Reply Point One (in response to Issues One and Ten): The trial
court did not err in denying Pease assistance of standby
counsel... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Judge Perkins did not err in failing to admonish
Pease after denying standby counsel, because Pease
had been given a Faretta hearing months earlier.. . . . . . . . . . . . . 7

A signed written waiver was not necessary for
Pease to invoke his right to self-representation.. . . . . . . . . . . . . . 9

Reply Point Two (in response to Issue Two): The matter of the
judicial oath is unpreserved... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Reply Point Three (in response to Issue Three): Pease waived
review with regard to the matter of the prosecuting attorney’s
authority to prosecute the case.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

i
 Reply Point Four (in response to Issues Five and Six): If this point is
preserved, the information was not defective.. . . . . . . . . . . . . . . . . . . 13

Pease’s contentions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Pease failed to preserve error for review.. . . . . . . . . . . . . . . . . . 14

Even if error had been preserved, the information charged an
offense and was not defective.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Reply Point Five (in response to Issue Nine): The evidence is
legally sufficient to show that Pease intentionally and
knowingly entered on property of another... . . . . . . . . . . . . . . . . . . . . 16

Reply Point Six (in response to Issue Eleven): The trial court did
not err in denying Pease’s requested mistake-of-fact
instruction... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Reply Point Seven (in response to Issues Four and Twelve): The State
never alleged that Waller was the owner of the property, and
therefore was not required to prove that she was.. . . . . . . . . . . . . . . . 21

Reply Point Eight (in response to Issue Seven): Nothing in the law
requires the owner to appear in court, but Fannie Mae appeared
through Waller... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Reply Point Nine (in response to Issue Eight): Pease was inhabiting the
house when the he received a criminal-trespass warning.. . . . . . . . . 22

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ii
 INDEX OF AUTHORITIES

Constitutional Page
TEX. CONST. art. V § 12(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Statutes
TEX. CODE CRIM. P. art 1.051(g)
(West Supp. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
TEX. CODE CRIM. P. art. 1.14(b)
(West 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
TEX. PENAL CODE 1.07(a)(35)(A)
(West Supp. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
TEX. PENAL CODE § 1.07(a)(39)
(West Supp. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
TEX. PENAL CODE § 8.02(a)
(West 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
TEX. PENAL CODE § 2.03(c)
(West 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
TEX. PENAL CODE § 30.05 (a)
(West Supp. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 15
TEX. PENAL CODE § 30.05 (d)
(West Supp. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Rules
TEX. R. APP. P. 33.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

Cases
Burgess v. State, 816 S.W.2d 424
(Tex. Crim. App. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Bustillos v. State, 832 S.W.2d 668
(Tex. App.—El Paso 1992, pet. ref'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

iii
Davis v. State, 227 S.W.3d 766
(Tex, App.—Tyler 2005), aff’d, 227 S.W.3d 733
(Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Duron v. State, 956 S.W.2d 547
(Tex. Crim. App. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
Easton v. State, No. 14-99-01145-CR, 2001 Tex. App. LEXIS 7179
(Tex. App.—Houston [14th Dist.] Oct. 25, 2001, pet. ref’d)
(mem. op., not designated for publication). . . . . . . . . . . . . . . . . . . . . . 10
Faretta v. California, 422 U.S. 806
(1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Fulbright v. State, 41 S.W.3d 228
(Tex. App.—Fort Worth 2001, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . 7
Garza v. State, 344 S.W.3d 409
(Tex. Crim. App. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Jackson v. Virginia, 443 U.S. 307
(1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Landers v. State, 550 S.W.2d 272
(Tex. Crim. App. 1977).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
McCoy v. State, 977 S.W.2d 379
(Tex. Crim. App. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Moreno v. State, 721 S.W.2d 295
(Tex. Crim. App. 1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Moses v. State, 814 S.W.2d 437
(Tex. App.—Austin 1991, pet. ref'd). . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Robertson v. State, 934 S.W.2d 861
(Tex. App.—Houston [14th Dist.] 1996, no pet.). . . . . . . . . . . . . . . . . . . 6
Scarbrough v. State, 777 S.W.2d 83
(Tex. Crim. App. 1989).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Shaw v. State, 243 S.W.3d 647
(Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
State v. Edmond, 933 S.W.2d 120
(Tex. Crim. App. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iv
State v. Mays, 967 S.W.2d 404
(Tex. Crim. App. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Studer v. State, 799 S.W.2d 263
(Tex. Crim. App. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Teal v. State, 230 S.W.3d 172
(Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Thomas v. State, 855 S.W.2d 212
(Tex. App.—Corpus Christi 1993, no pet.). . . . . . . . . . . . . . . . . . . . . . . 20
Wills v. State, 790 S.W.2d 307
(Tex. Crim. App. 1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

v
 STATEMENT OF THE CASE

Crae Robert Pease was charged by information with the Class A

misdemeanor of criminal trespass,1 alleged to have been committed on

December 11, 2013. CR 12, 415 [State’s motion to amend the information].

After being admonished about the dangers and disadvantages of self-

representation, Pease waived counsel and proceeded pro se. CR 14, 15. On

August 13, 2014, a jury found him guilty of the offense and assessed

punishment at six months’ confinement in jail and a $2,000 fine. CR 441,

444. The trial court sentenced Pease in accordance with these verdicts on

August 13, 2014. CR 448–49. Pease gave notice of appeal on the day he was

sentenced. CR 451.

ISSUES PRESENTED

Point One (Issues One and Ten): Pease waived assistance of counsel,
asserted the right to counsel to represent himself, and then requested
standby counsel. Did the trial court erroneously deny Pease standby
counsel?

1
A person commits an offense if the person enters or remains on or in property of another
without effective consent and the person: (1) had notice that the entry was forbidden; or (2)
received notice to depart but failed to do so. An offense under this section is a Class A
misdemeanor. TEX. PENAL CODE § 30.05 (a), (d) (West Supp. 2015).
1
 Did the trial court erroneously fail to admonish Pease as to the
dangers and disadvantages of representing himself?
Finally, was Pease’s waiver of counsel insufficient because he filled
in “Nein danke” on the line where his signature should have appeared?

Point Two (Issue Two): Was the visiting judge without authority to
preside over trial because his oath does not appear among the papers of
the case?

Point Three (Issue Three): Pease posits that an irregularity exists in
the Travis County Attorney’s bond. Did the assistant county attorney who
prosecuted this case lack authority to act on behalf of the State of Texas
because of the alleged irregularity?

Point Four (Issues Five and Six): The information tracked the
language of the statute regarding criminal trespass. Was the information
sufficient to charge an offense when it failed to include the specific section
of the penal code, and did not explain who Hallie Waller is or who the title
owner of the residence was?

Points Five and Six (Issues Nine and Eleven): Pease has continuously
asserted a belief that he is the rightful owner of 10820 Gerald Allen Loop.
Because of this belief (1) was the evidence legally insufficient to show that
he intentionally and knowingly entered onto property of another; and (2)
was he entitled to a mistake-of-fact instruction in the jury charge?

Point Seven (Issues Four and Twelve): Pease contends that Waller
was not the owner of the property, and that the State never met its burden
of proof that she was. Did the State need to prove that Waller was the
property’s owner?

Point Eight (Issue Seven): “If Fannie Mae was the owner of the
property at the time of the intrusion, why didn’t it appear for trial?”
2
 Point Nine (Issue Eight): “Who was the inhabitant of the property
when Appellant got the criminal trespass warning?”

BACKGROUND

January 2007: Christian and Jessica Anderson take out a mortgage to
purchase the residential property located at 10820 Gerald
Allen Loop, in Austin, Texas. 5 RR State’s Exhibit # 10.

Dec. 2, 2010: The Andersons execute a quitclaim deed to Trevarthen.
5 RR State’s Exhibit # 10.

Dec. 6, 2010: The Andersons revoke the quitclaim deed. 5 RR State’s
Exhibit # 10.

Dec. 7, 2010: The home is foreclosed upon. The Federal National
Mortgage Association (“Fannie Mae”) becomes the new
owner after purchasing the home at the foreclosure sale.
See 5 RR State’s Exhibits # 9, 13.

Dec. 14, 2010: Fannie Mae signs a master listing agreement with Hallie
Waller, a licensed realtor in Texas. 3 RR 69–70; CR 506–37.
A week after the foreclosure sale, Fannie Mae authorizes
Waller to “[r]ekey immediately if vacant,” maintain the
property, and “[a]ct as [Fannie Mae’s] representative
when dealing with . . . any persons occupying the
property.” CR 540–41. While performing her duties,
Waller found Pease living in the residence. 3 RR 76–77.
Waller offered Pease assistance to move out, but he
declined. 3 RR 77.

Jan. 3, 2011: Trevarthen executes a quitclaim deed to Crae Pease. 3 RR
167; 5 RR State’s Exhibits # 10, 11.
3
Nov. 7, 2011: Pease refuses to move out. Fannie Mae obtains a
judgment for immediate possession after initiating a
forcible detainer action in Justice of the Peace Court,
Precinct Three, of Travis County.
5 RR State’s Exhibit # 13.

Jan. 19, 2012: After Pease appeals the FED judgment, County Court No.
1 issues a writ of possession to evict Jessica Anderson
“and all occupants of 10820 Gerald Allen Loop, Austin,
Texas 78748.” 5 RR State’s Exhibit # 3.

May 23, 2013: Over a year later, the writ of possession is executed and
the property is released to Fannie Mae. 5 RR State’s
Exhibit # 1, Defendant’s Exhibit # 1. Hallie Waller, as
Fannie Mae’s representative, has the house’s locks re-
keyed. 3 RR 79, 81, 98.

May 31, 2013: Hallie Waller gives Pease notice that entry onto and into
10820 Gerald Allen Loop is forbidden. 3 RR 81–82.

Dec. 11, 2013: Pease is arrested for criminal trespass after police see him
leaving through the front door of 10820 Gerald Allen
Loop. 3 RR 38–39, 43–45, 58.

SUMMARY OF THE STATE’S ARGUMENT

Reply Point One (Issues One and Ten): The trial court properly
denied Pease standby counsel, because neither the federal nor the state
constitution grants a right to standby counsel. Afterwards, the court was
not obligated to warn Pease of the dangers and disadvantages of
representing himself. As Pease himself confirmed, he had already been
warned of this at an earlier Faretta hearing. Further, Pease’s coyly signing
“Nein danke” on the written waiver of counsel has no effect on the
4
judgment because a written waiver is not necessary to establish that a
defendant has invoked his right to self-representation.

Reply Point Two (Issue Two): This point, which complains of a mere
procedural irregularity, is unpreserved.

Reply Point Three (Issue Three): Pease waived this point because he
never objected that the county attorney’s bond was not endorsed with an
oath or dated after the election. Furthermore, he cites to no authority
requiring this.

Reply Point Four (Issues Five and Six): Pease has waived his fifth
and sixth points because he failed to object to the information before the
date on which trial on the merits began. The information, moreover,
alleged all of the statutory elements of criminal trespass. The information
was not required to allege facts that are merely evidentiary nature, such as
an explanation of who Hallie Waller is or who the title owner of the
residence was.

Reply Points Five and Six (Issues Nine and Eleven): Viewing the
evidence in the required light, any rational trier could have found beyond
a reasonable doubt that Pease intentionally and knowingly entered on
property of another.
Pease was not entitled to a jury-charge instruction on mistake of fact
because of his belief that he was the lawful owner of the property. The
defense of mistake of fact must negate the required culpability. That is, the
evidence must have shown that Pease unintentionally or unknowingly
entered onto the property after receiving notice that his entry was
forbidden. Because no evidence establishes this, the trial court did not err
in refusing the requested instruction.

5
 Reply Point Seven (Issues Four and Twelve): Regardless of
allegations of ownership, Waller had a superior right to the property, and
was therefore capable of issuing a criminal trespass warning to Pease.

Reply Point Eight (Issue Seven): Governmental agencies can only
appear through their agents. Waller, Fannie Mae’s agent, appeared on its
behalf.

Reply Point Nine (Issue Eight): Pease was inhabiting the property
when he was given a criminal-trespass warning.

ARGUMENT

Reply Point One (in response to Issues One and Ten): The trial
court did not err in denying Pease assistance of standby
counsel.

Pease’s assertion that the Constitution guarantees him the “inviolate

right to represent himself and have counsel during the criminal trial”

ignores established case law. Pease’s Brief, p. 10. A defendant who chooses

to represent himself during trial has no right to standby or hybrid counsel.

Scarbrough v. State, 777 S.W.2d 83, 93 (Tex. Crim. App. 1989); Landers v.

State, 550 S.W.2d 272, 279 (Tex. Crim. App. 1977). The court in its discretion

may allow a pro se criminal defendant to have standby counsel. See

Robertson v. State, 934 S.W.2d 861, 864 (Tex. App.—Houston [14th Dist.]

6
1996, no pet.). But if the court denies standby counsel, it must inform the

accused that “he must choose instead between two mutually exclusive

rights: the right to self representation without standby counsel or

representation by counsel. There is no ‘middle ground.’” Fulbright v. State,

41 S.W.3d 228, 235 (Tex. App.—Fort Worth 2001, pet. ref’d); see also

Scarbrough, 777 S.W.2d at 93.

Pease attempted to bring in Adam Reposa as standby counsel, but

the court declined to appoint him as such. Judge Perkins then reminded

Pease “you’re entitled to represent yourself or you’re entitled to have a

lawyer represent you.” 2 RR 21. Pease declined attorney representation. 2

RR 21. By restating his intention to represent himself, Pease waived his

right to counsel. See Fulbright, 41 S.W.3d at 235.

Judge Perkins did not err in failing to admonish Pease after
denying standby counsel, because Pease had been given a
Faretta hearing months earlier.

Pease further contends that the court failed to fulfill its obligation to

admonish him of the dangers of self-representation. Pease’s Brief, p. 12.

When a defendant wishes to waive representation by counsel, the court
7
must admonish him of the dangers of self-representation and then provide

him with a formal statement to sign. TEX. CODE CRIM. P. art 1.051(g) (West

Supp. 2015). This is usually done in a Faretta hearing, during which the

court determines if the defendant fully understands his right to counsel,

and makes him “aware of the dangers and disadvantages of self-

representation.” Faretta v. California, 422 U.S. 806, 835 (1974).

During the motion in limine hearing, Judge Perkins reminded Pease

that, months earlier, another judge had held a Faretta hearing, after which

Pease opted to represent himself: “You went through that whole hearing

insisting that you did want to represent yourself. . . .” 2 RR 21. Pease

confirmed that this was true: “Right.” 2 RR 21. Pease has chosen not to

include a transcription of this Faretta hearing in the appellate record. After

learning he would not be appointed standby counsel, Pease still insisted on

proceeding pro se, which is consistent with what he has done in past

criminal cases. See, e.g., Pease v. State, No. 03-14-00512-CR, 2014 Tex. App.

LEXIS 13613 (Tex. App.—Austin Dec. 19, 2014, no pet.) (mem. op., not

designated for publication); Pease v. State, No. 03-06-00369-CR, 2007 Tex.
8
App. LEXIS 6351 (Tex. App.—Austin Aug. 9, 2007, no pet.) (mem. op., not

designated for publication).

A signed written waiver was not necessary for Pease to
invoke his right to self-representation.

Finally, Pease argues that his waiver of counsel was insufficient.

Pease’s Brief, p. 11. If it was, that was only because he refused to properly

sign it, thereby inviting the very “error” he complains of on appeal.

Furthermore, a written waiver is not mandatory. Burgess v. State, 816

S.W.2d 424, 430 (Tex. Crim. App. 1991). Neither the federal nor the state

constitution require that the waiver be in writing. Id. And, if Article

1.051(g) were construed as mandatory, “the statute would in fact operate to

impose counsel upon any defendant who refused to sign a written waiver,

even though he may otherwise have validly waived counsel and invoked

his Faretta right[.]” Id. In other words, making such written waivers

mandatory would impede a defendant’s Faretta right. Id. at 431. Besides, by

the time a criminal defendant is asked to sign a waiver, the trial court has

9
already determined that the defendant has knowingly, voluntarily, and

intelligently waived counsel. Burgess, 816 S.W.2d at 430–31.

Thus, although Pease signed his first waiver “Nein Danke” instead of

signing his name, he was only offered that written form once the judge had

determined that he understood the dangers and disadvantages of

representing himself and yet still willingly invoked his Faretta rights.

Because courts have held that the failure to secure a signed statement “will

not provide grounds for reversal where the record is otherwise sufficient to

demonstrate effective waiver of counsel[,]” Pease’s refusal to sign his name

on the document does not render his waiver invalid. Easton v. State, No. 14-

99-01145-CR, 2001 Tex. App. LEXIS 7179, at *18 (Tex. App.—Houston [14th

Dist.] Oct. 25, 2001, pet. ref’d) (mem. op., not designated for publication).

Reply Point Two (in response to Issue Two): The matter of the
judicial oath is unpreserved.

Pease’s second point contends that Visiting Judge Bob Perkins’s

orders were void; he was without authority to preside over the case

10
because his oath of office does not appear in the record. Pease’s Brief, pp.

13–14. Pease does not contend that Judge Perkins has not taken the oath.

Before jury selection began and after the trial court refused to appoint

standby counsel, the following exchange took place regarding Judge

Perkins’s oath and assignment.

MR. PEASE: Then I would have to ask then to – because
we mentioned the constitution. I believe I also have a
constitutional right where everybody is sitting around like
yourself has a proper oath and assignment. So I haven’t had
time to go to the courthouse over there to see about your
assignment.

THE COURT: You’d have to go over to Judge Stubblefield.
It’s on file with Judge Stubblefield. He — because I’m a senior
district judge, I have to file it with him.

MR. PEASE: All right.

THE COURT: He’s the Administrative Judge of the Third
Administrative Region.

MR. PEASE: Okay.

THE COURT: His office is in Georgetown.

MR. PEASE: I know where he is. Thank you.

THE COURT: Okay.

2 RR 22.
11
 Pease’s point regarding the judicial oath is not preserved, because

Pease has never complained of the oath’s absence from the court’s file

before now. TEX. R. APP. P. 33.1(a); see McCoy v. State, 977 S.W.2d 379, 380

(Tex. Crim. App. 1998) (a defendant may not complain of a procedural

irregularity in the assignment of a visiting judge for the first time on

appeal).

Reply Point Three (in response to Issue Three): Pease waived
review with regard to the matter of the prosecuting attorney’s
authority to prosecute the case.

Point three contends that Travis County Attorney David Escamilla’s

bond is defective because an oath does not appear on the back of it, and it

is not dated after the election. “If Escamilla has not completed the 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.” Pease’s Brief, p.

15. Pease concludes that the elected county attorney is without authority to

appoint any assistants; assistant county attorney Bill Swaim therefore was

not authorized to discharge the duties of prosecutor. Pease’s Brief, p. 15.

12
 Pease never objected on these grounds at any point before or during

trial. Nor does he point to any authority under which a bond must be

endorsed with an oath or dated after the election. This point is therefore

waived. TEX. R. APP. P. 33.1(a); see Davis v. State, 227 S.W.3d 766, 770 (Tex,

App.—Tyler 2005), aff’d, 227 S.W.3d 733 (Tex. Crim. App. 2007).

Reply Point Four (in response to Issues Five and Six): If this
point is preserved, the information was not defective.

Pease’s contentions

Pease’s fifth point contends that the information was defective

because it

• failed to include the penal statute section;

• failed to state that Pease was being charged with criminal trespass or
criminal trespass to a habitation; and it

• failed to explain who Hallie Waller is and who the residence’s owner
is.

Pease’s Brief, pp. 20–22. The sixth point asks whether the jury charge

tracked the information, but complains of the same things as the fifth point.

Pease’s Brief, pp. 23–26.

13
 Pease failed to preserve error for review.

To complain on appeal of a defect, error, or irregularity of form or

substance in an information, a criminal defendant must object before the

date on which the trial on the merits commences. Otherwise, he waives

and forfeits the right to object and may not raise the objection on appeal or

in any other post-conviction proceeding. TEX. CODE CRIM. P. art. 1.14(b)

(West 2005); Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990). Because

Pease failed to object to the information before the date on which trial on

the merits began, he has waived his fifth and sixth points. Id.

Even if error had been preserved, the information charged an
offense and was not defective.

Since 1985, a charging instrument vests a court with jurisdiction if it

charges a person with the commission of an offense. TEX. CONST. art. V §

12(b) (amended 1985); Duron v. State, 956 S.W.2d 547, 551 (Tex. Crim. App.

1997). The test for determining whether an indictment or information

accomplishes this is whether it can be determined from the face of the

instrument that it intends to charge a certain penal-code offense for which

14
the court has subject-matter jurisdiction. Teal v. State, 230 S.W.3d 172, 181

(Tex. Crim. App. 2007); Duron, 956 S.W.2d at 551. An information need

only track the penal statute’s language to meet statutory and constitutional

notice requirements. State v. Edmond, 933 S.W.2d 120, 129–30 (Tex. Crim.

App. 1996).

The amended information tracked the criminal-trespass statute, i.e., it

alleged on its face all of the statutory elements. A person commits criminal

trespass if he enters or remains on or in property of another, without

effective consent, and the person had notice that entry was forbidden. TEX.

PENAL CODE § 30.05 (a). The amended information alleged that Pease

on or about December 11, 2013, did then and there intentionally
and knowingly enter on the property of another, to wit: 10820
Gerald Allen Loop, Austin, Travis County, without the
effective consent of another, to wit, Hallie Waller, and the
Defendant did then and there have prior notice that entry there
was forbidden.

CR 12, 415. Because of the substantial similarity between the information

and the statute, a reasonable person could have identified the specific

section of the penal code at issue. See Duron, 956 S.W.2d at 551.

15
Furthermore, the prosecution is under no obligation to allege facts that are

merely evidentiary in nature, such as an explanation of who Hallie Waller

is or who the title owner of the residence was. State v. Mays, 967 S.W.2d

404, 406 (Tex. Crim. App. 1998); Moreno v. State, 721 S.W.2d 295, 300 (Tex.

Crim. App. 1986).

Reply Point Five (in response to Issue Nine): The evidence is
legally sufficient to show that Pease intentionally and
knowingly entered on property of another.

Pease’s ninth point contends that the State could not have proven

that he intentionally and knowingly entered onto the property of another,

because he “believed so strongly in his title.” Pease’s Brief, p. 30.

Fannie Mae acquired the property located at 10820 Gerald Allen

Loop in a foreclosure sale in December of 2010. 3 RR 71–75; 5 RR State’s

Exhibits # 9, 13. In 2012, the property had been the subject of a forcible

detainer action in which Pease appeared and claimed ownership of the

property, but the county court rendered judgment in favor of Fannie Mae

against all occupants, including Pease. 5 RR State’s Exhibits #1, 3. About

two and a half years after Fannie Mae bought the house, Pease was evicted
16
from it on May 23rd of 2013, and told not to return. 3 RR 27–28. Fannie

Mae granted authority to realtor Hallie Waller to maintain the property

and to act as Fannie Mae’s representative when dealing with any

individuals occupying the property. 5 RR State’s Exhibit # 9. See TEX. PENAL

CODE § 1.07(a)(39) (West Supp. 2015) (defining “possession” as “actual

care, custody, control, or management.”); also, Bustillos v. State, 832 S.W.2d

668, 672 (Tex. App.—El Paso 1992, pet. ref'd) (holding that the building

manager had a greater right to possess the property than did the protestors

at women’s health clinic).

After Pease was evicted on the 23rd, Waller had the house re-keyed.

3 RR 27, 78–79. On the 25th, when crews went to clean the house, they

could not get in because the locks had been changed. Waller re-keyed the

house a second time. 3 RR 80. She filed a police report when, on the 26th, it

was discovered that the locks had been changed yet again. 3 RR 81. On

May 31st, Waller encountered Pease at the property, and gave him a

criminal-trespass warning. 3 RR 81–82. Half a year later, Pease was still

claiming that the property was his and was “continuing to show up on the
17
property.” 3 RR 33. Neighbors reported people coming and going, and

someone was re-keying the locks without authorization. 3 RR 34. Pease

called Detective Evenson and told her that he would be moving back into

the house on December 11th. 3 RR 151. Police went to the house to conduct

surveillance. 3 RR 35. They saw Pease leave the house on December 11th,

shut the door behind him, get in his car, and drive off. 3 RR 38–39, 43–45.

Viewing this evidence in the light most favorable to the verdict, any

rational trier could have found that Pease intentionally and knowingly

entered on property of another, without Waller’s effective consent, after

being given notice that entry was forbidden. Jackson v. Virginia, 443 U.S.

307, 319 (1979).

Reply Point Six (in response to Issue Eleven): The trial court
did not err in denying Pease’s requested mistake-of-fact
instruction.

Pease’s eleventh point asserts that, because he believed he owned the

property located at 10820 Gerald Allen Loop, the trial court erred in failing

to include his requested mistake-of-fact instruction in the court’s charge to

the jury. Pease’s Brief, p. 38.
18
 Under the mistake-of-fact justification,

[i]t is a defense to prosecution that the actor through mistake
formed a reasonable belief about a matter of fact if his mistaken
belief negated the kind of culpability required for commission of
the offense.

TEX. PENAL CODE § 8.02(a) (West 2011) (emphasis added). As the statutory

language shows, this defense applies only if the actor’s mistake affects his

culpable mental state concerning the commission of the offense charged.

See Wills v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990). Thus, to rely

on the mistake-of-fact defense in a criminal-trespass case, the accused must

show that he unintentionally or unknowingly entered or remained on the

property after receiving notice that entry was forbidden. See Moses v. State,

814 S.W.2d 437, 442 (Tex. App.—Austin 1991, pet. ref'd) (“No culpable

mental state is required under the criminal-trespass statute . . . other than

a volitional refusal to leave when requested.”). Allegations of mistake of

fact concerning matters other than the required culpable mental state do

not warrant such an instruction. See, e.g., id. (finding that, in a criminal-

trespass case, an abortion protestor’s mistaken belief that he was legally

19
justified in his obstructive tactic to remain on the clinic property did not

entitle him to a charge on mistake of fact); Thomas v. State, 855 S.W.2d 212,

215 (Tex. App.—Corpus Christi 1993, no pet.) (holding that, in a criminal-

trespass case, an abortion protestor’s belief that he was attempting to save

a human life does not entitle him to a charge on mistake of fact).

The issue of a defense’s existence is not submitted to the jury unless

evidence is admitted supporting the defense. TEX. PENAL CODE § 2.03(c)

(West 2011). A defense is supported, or raised, by the evidence if there is

some evidence, from any source, on each element of the defense that, if

believed by the jury, would support a rational inference that that element is

true. Shaw v. State, 243 S.W.3d 647, 657–58 (Tex. Crim. App. 2007). Because

no evidence shows that Pease unintentionally or unknowingly entered on

the property located at 10820 Gerald Allen Loop after receiving notice that

entry was forbidden, the trial court did not err in refusing to include a

mistake-of-fact instruction in the jury charge.

20
 Reply Point Seven (in response to Issues Four and Twelve): The State
never alleged that Waller was the owner of the property, and
therefore was not required to prove that she was.

Pease contends that the State did not prove that Waller was the

owner or the owner’s agent, and therefore had no authority to issue him a

criminal-trespass warning. Pease’s Brief, pp. 16–19, 40. While the

information never alleged Waller to be an owner, she met the statutory

definition of an owner under the Penal Code.

“‘Owner’ [has] an expansive meaning: anyone having . . . a greater

right to possession of the property than the defendant, is an owner of the

property.” Garza v. State, 344 S.W.3d 409, 412–13 (Tex. Crim. App. 2011)

(interpreting TEX. PENAL CODE 1.07(a)(35)(A) (West Supp. 2015)). The

evidence showed that Fannie Mae granted Waller authority over the

property. 3 RR 82, 123; 5 RR State’s Exhibits # 7, 9. Given Waller’s superior

right of possession, she had the authority to issue Pease a criminal-trespass

warning.

21
 Reply Point Eight (in response to Issue Seven): Nothing in the law
requires the owner to appear in court, but Fannie Mae appeared
through Waller.

Pease’s seventh point asks why, if Fannie Mae was the owner, did it

not appear in court? Pease’s Brief, p. 29. It is axiomatic that a governmental

agency can only appear through its agents. In this case, that agent was

Waller, who testified at trial. 3 RR 82, 123; 5 RR State’s Exhibits # 7, 9.

Reply Point Nine (in response to Issue Eight): Pease was inhabiting
the house when the he received a criminal-trespass warning.

Pease’s eighth point asks “Who was the inhabitant of the property

when [Pease] got the criminal trespass warning?” Pease’s Brief, p. 37. If this

question presents anything for the Court’s review, it has no bearing on any

applicable legal issue, given the facts of this criminal-trespass case.

PRAYER

For these reasons, the Travis County Attorney, on behalf of the State

of Texas, asks this Court to overrule Pease’s issues or points of error and

affirm the judgment of conviction for criminal trespass.

22
 Respectfully submitted,

DAVID A. ESCAMILLA
TRAVIS COUNTY ATTORNEY

Giselle Horton
Assistant Travis County Attorney
State Bar Number 10018000
Post Office Box 1748
Austin, Texas 78767
Telephone: (512) 854-9415
TCAppellate@traviscountytx.gov

ATTORNEYS FOR THE STATE OF TEXAS

CERTIFICATE OF COMPLIANCE

Relying on Corel WordPerfect’s word-count function, I certify that
this document complies with the word-count limitations of TEX. R. APP. P.
9.4. The document contains 5,301 words.

Giselle Horton

23
 CERTIFICATE OF SERVICE

I certify that I have sent a complete and legible copy of this State's
Brief via U.S. postage-prepaid mail, to Crae Pease at 6715 Skynook Drive,
Austin, Texas 78745, on or before December 17, 2015.

Giselle Horton
Assistant Travis County Attorney

24