dissenting.
I respectfully dissent. For our purposes and as set forth in the application paragraph of the jury charge, the elements of criminal trespass are:
a. intentionally or knowingly remain on the property of another
b. without the effective consent of that person
c. after receiving notice to depart, and
d. failing to depart.
The issue before this court is the sufficiency of the evidence on the notice to depart requirement. Often times, what appear to be complex cases, become quite simple ones when viewed in context. I begin my review with testimony from Detective Tatum, describing a conversation with Reverend Rozell.
[PROSECUTOR]: Okay. Without telling us exactly what was said, what was your understanding from talking to him as to what would be your law enforcement role while you were there?
[WITNESS]: Well I don’t know if it were specifically intended for me but it was mentioned that he was afraid that there would be a disruption.
[PROSECUTOR]: Okay. Can you tell the Court anything more than that about — without—can you be more precise?
*927[WITNESS]: Well, he stated that if there — if there was a disruption that he could not quell that he would ask the person to leave and if they would not leave, he would ask that they be removed.
Clearly Reverend Rozell had a correct understanding of what was required under the criminal trespass statute: the person would be asked to leave and if they did not, then they would be removed. So, what was the sequence of events? Again the testimony; first, Reverend Rozell, on direct examination:
[WITNESS]: I told him if he interrupts again he would be removed from the church.
[PROSECUTOR]: Okay. What happened after that?
[WITNESS]: His response was “I’d like to see you try.”
[PROSECUTOR]: And then what happened?
[WITNESS]: I asked for the — well, I didn’t really ask — I just said, “I would like for him to be removed.”
[PROSECUTOR]: Okay. And at that point did the law enforcement respond?
[WITNESS]: Yes.
Next, Reverend Rozell, on cross-examination:
[DEFENSE COUNSEL]: And you never used the words please leave or leave, did you?
[WITNESS]: No, I did not.
[DEFENSE COUNSEL]: You never told Reverend Thompson directly to depart, did you?
[WITNESS]: No, sir, I did not.
Then, Detective Tatum’s recollection of Reverend Rozell’s remarks:
[PROSECUTOR]: Okay. And did Reverend Rozell say anything at that point that you could hear?
[WITNESS]: Reverend Rozell asked him to leave.
[PROSECUTOR]: Okay. Do you remember his words?
[WITNESS]: I think he asked that he be removed.
Finally, Reverend Thompson’s account of Reverend Rozell’s remarks:
[DEFENSE COUNSEL]: Now, what ■ did Reverend Rozell say in response to that?
[WITNESS]: When I said, “I don’t know where you got that, but you didn’t get it from me.” He said, “Another interruption and you’ll be removed.”
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[DEFENSE COUNSEL]: What did you say in response?
[WITNESS]: I said, “I’d like to see you try.”
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[DEFENSE COUNSEL]: Now, did Reverend Rozell ever ask you directly to leave?
[WITNESS]: I was not asked politely or in any other fashion to leave.
[DEFENSE COUNSEL]: You respect the church property?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: I mean, would you have left if it had been clear to you to leave?
[DEFENDANT]: If I had been asked in a polite manner, I probably would have left.
[DEFENSE COUNSEL]: Well, just asked — how about if you were just asked — whether it’s polite or not, but asked in a clear and definite manner to leave?
[DEFENDANT]: Again, I probably would have left.
[DEFENSE COUNSEL]: Now, when he said, “I’d like to see him removed,” what happened next?
[DEFENDANT]: He just gestured with his hand and said, “I’d like to see him removed.” He did not ask me to leave, and so I’m sitting there waiting to see what happens next. I — at that point I really did not know if he was serious. *928The whole thing was so ridiculous, I was astonished, outraged, all at the same time. I just really could not believe that he would do that.
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[PROSECUTOR]: Reverend, I really skipped over the most important part of this trial. When Officer Tatum came up to you — when you first heard Reverend Rozell—
[DEFENSE COUNSEL]: Objection, beyond the scope of redirect, Your Hon- or.
THE COURT: Overruled.
[PROSECUTOR]: When you first heard Reverend Rozell say, “If you interrupt me again, you’ll be removed,” or something to that effect, did you hear him?
[DEFENDANT]: Yes, I heard him.
[PROSECUTOR]: Did you understand him?
[DEFENDANT]: I wasn’t sure exactly what he meant.
[PROSECUTOR]: Pass the witness.
Again, simplicity at its finest. The prosecutor recognized “the most important part of this trial” had to do with Reverend Rozell’s comments about removal. Clearly, Reverend Rozell never asked Reverend Thompson to leave nor gave Reverend Thompson any notice to depart. Upon the interruption by Reverend Thompson, Reverend Rozell summarily ordered Reverend Thompson removed. Therefore, the conviction cannot be upheld on any purported notice to depart to Reverend Thompson by Reverend Rozell.
However, the statute does allow for the notice to depart to be given by someone with apparent authority to act for the owner. The majority says Detective Tatum fulfills this requirement. Again, an examination of the testimony. First, Detective Tatum, on direct examination:
[PROSECUTOR]: Did you — you said you heard the Reverend Rozell ask him to leave?
[WITNESS]: Yes, sir.
[PROSECUTOR]: In different words. Did you also ask him to leave?
[WITNESS]: Yes, sir.
[PROSECUTOR]: How did you say that?
[WITNESS]: Well, I — I did not ask him to leave. I explained to him that if — if the Reverend Rozell asked him to leave, that he had to leave, that he didn’t have a choice, that he did not—
[PROSECUTOR]: So, you reiterated—
[WITNESS]: Yes, sir.
[PROSECUTOR]: — what Reverend Ro-zell had said.
Then, Reverend Thompson’s account of the conversation with Detective Tatum:
[DEFENSE COUNSEL]: Now, are you able to testify what was said between that officer and you as he’s leaning over your left shoulder?
[DEFENDANT]: Yes. He whispered to me and I whispered in response, but I can’t testify to you precisely what was said.1
[DEFENSE COUNSEL]: And how can you do that?
[DEFENDANT]: I had my pocket tape recorder sitting on the pew by my side, and it picked it all up.
[DEFENSE COUNSEL]: And do you remember it, as well?
[DEFENDANT]: As well, yes.
[DEFENSE COUNSEL]: What did he say?
[DEFENDANT]: He leaned over and whispered in my ear, “Mr. Thompson, he wants you to leave.”
[DEFENSE COUNSEL]: What did you say in response?
[DEFENDANT]: I said, “This is a public meeting.”
*929[[Image here]]
[DEFENSE COUNSEL]: Now, at this point had — did Reverend Rozell say anything else asking you to leave?
[DEFENDANT]: No. He was too busy singing Victory in Jesus.
[DEFENSE COUNSEL]: Is the answer no to that?
[DEFENDANT]: The answer is no.
[DEFENSE COUNSEL]: After you said that you were a part of the public, what did the gentleman say after that?
[DEFENDANT]: He said, “He asked you to leave. The main reason is you’re trespassing.”
[DEFENSE COUNSEL]: And then did he say anything about—
[DEFENDANT]: He said, “He asked you to leave. The main reason is you’re trespassing, and that’s not necessary.”
[DEFENSE COUNSEL]: Now, what did you understand when he said, “It’s not necessary?”
[DEFENDANT]: Now necessary for me to remain in the seminar, to' remain to see what would happen next in the seminar.
[DEFENSE COUNSEL]: Now, did you pack up your bags?
[DEFENDANT]: Well, he then said—
[DEFENSE COUNSEL]: Did you pack up your bags?
[DEFENDANT]: Yes, I did.
[DEFENSE COUNSEL]: And I think that was shown on the tape, as well?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: Did you have — what kind of a briefcase did you have?
[DEFENDANT]: A zippered attache’ case.
[DEFENSE COUNSEL]: Did you put your things in your attache’ case?
[DEFENDANT]: Yes, I did.
[DEFENSE COUNSEL]: And they what did you do?
[DEFENDANT]: I waited for further instructions.
[DEFENSE COUNSEL]: Do you remember on the tape when you sat back down?'
[DEFENDANT]: Well, I never stood up.
[DEFENSE COUNSEL]: That’s — you know, I picked that up yesterday. Of course, you never stood up, did you?
[DEFENDANT]: No.
[DEFENSE COUNSEL]: So, you remained seated?
[DEFENDANT]: (Nodding).
[DEFENSE COUNSEL]: And waited for further instructions. Did you cross your legs?
[DEFENDANT]: Yes.
[DEFENSE COUNSEL]: Why did you do that?
[DEFENDANT]: Reflex. That was a position I had been sitting in previously, and I simply returned to my previous body posture waiting to see what would happen next.
[DEFENSE COUNSEL]: If you had been told to exit this way or that way, would you have done it?
[DEFENDANT]: I think so.
Again, a simplistic analysis of the exchange between Detective Tatum and Reverend Thompson reveals that Detective Tatum was only reiterating what Reverend Rozell had said. Although Detective Tatum initially said he had also asked Reverend Thompson to leave, Detective Tatum quickly corrected himself and noted that he did not ask Reverend Thompson to leave, but “explained to him that if — if the Reverend Rozell asked him to leave, that he had to leave, that he didn’t have a choice.” Thus, the purported notice to depart by Detective Tatum was dependent upon notice to depart given by Reverend Rozell, not by any separate, independent notice by Detective Tatum.
Each of these published cases indicate a clear request or notice to leave and, in *930many cases, an additional notice that failure to leave would result in criminal charges. Bustillos v. State, 832 S.W.2d 668, 672 (Tex.App.—El Paso 1992, pet. ref'd)(“The record clearly indicates that the protestors were repeatedly asked to leave and were told that their failure to do so would result in arrests and the filing of criminal charges.”). In Reed v. State, 762 S.W.2d 640, 643 (Tex.App.—Texarkana 1988, pet. ref'd)
[H]e informed the leader of the group that the sidewalk was private property and asked them to leave. They refused and Elliott threatened to call the police. When they still refused, Elliott called the police. When the police arrived, they explained the law of criminal trespass to them and asked them to leave. When they again refused, they were arrested ....
Gollinger v. State, 834 S.W.2d 553, 557 (Tex.App.-Houston [14th Dist.] 1992, no pet.), provides:
In this case, the appellant himself testified that Franks asked him to leave and he refused. Franks testified that he asked appellant to leave at least three times before telling appellant he was going to call the police. Each time he was asked to leave, appellant responded that he had a right to be there and refused to leave the premises.
In Zarsky v. State, 827 S.W.2d 408, 414 (Tex.App.-Corpus Christi 1992, pet. ref'd):
On the morning of appellant’s arrest, Hopkins approached appellant, identified himself and requested that appellant leave the property. Hopkins testified that he had the authority to take care of the property; appellant, in his testimony, acknowledged that Hopkins had the authority to ask him to leave....
We find this evidence sufficient to sustain the conviction. Appellant was not prosecuted for entering the property. He was prosecuted for remaining on the property after being notified to leave.
In Olaniyi-Oke v. State, 827 S.W.2d 537 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd):
[A]ppellant entered the first floor of the Harris County jail and approached the master control center, where Harris County Deputy Gary Davis was on duty.... Appellant handed Davis fragments of a Texas driver’s license. Davis informed appellant that the identification was unacceptable, and denied appellant access to the upper portion of the jail.
Appellant became angry, and Davis asked him to leave the premises. Appellant did not leave, and Davis arrested appellant for the offense of criminal trespass.
In Felker v. State, 819 S.W.2d 636, 637 (Tex.App.-Corpus Christi 1991, no pet.):
Ms. Van Holsbeck called Gene Lorenz, property manager of the International Plaza, the building which housed the office. He told them that Ms. Van Hols-beck had to close the office for lunch, and he asked them to leave and come back at 1:00. He gave them consent to stay in the building between 12:00 and 1:00, but he did not give them consent to stay in Congressman Ortiz’ office during that time period. They still refused to leave the office. A Brownsville police officer, Larry Ferrar, told them that Ms. Van Holsbeck wanted to go to lunch and asked them to leave. He told them that if they did not leave, they would be arrested. They refused to leave and were arrested.
In Moses v. State, 814 S.W.2d 437, 443 (Tex.App.-Austin 1991, pet. ref'd, untimely filed):
LaFayette gave warnings at the front and back doors of the clinic. She asked the people to leave and advised them if they did not leave that they would be trespassing....
Austin Police Lieutenant Stewart testified that appellant ‘was in front of the crowd of persons that was blocking the *931doorway.’ Stewart, at LaFayette’s request, advised the crowd that they had been warned to leave and not come back, that they were in violation of the criminal trespass statute, and, if they continued to remain on the premises, that they would be subject to arrest.
Incredibly, the concurrence states “the jury could have concluded he knew he had been asked to leave.” This is based upon Thompson’s body language in the video tape. This conclusion, if made by the jury, is certainly not supported by the evidence. Detective Tatum unequivocally stated he did not ask Thompson to leave.
In summary, Reverend Rozell shortcut the legal requirements of the statute and had Reverend Thompson removed without giving Reverend Thompson notice to depart. No doubt, some will scream “technicality,” but their complaint must be lodged with the legislature. The statute, in my view, does not criminalize mere presence or disruption, it only criminalizes remaining on the premises after receiving notice to depart and then failing to do so. Clearly, the legislature intended that a potential trespasser be given the opportunity to avoid criminal consequences, by placing the notice requirement in the statute. As outlined above, Reverend Thompson did not receive any notice that unless he departed he would be charged with a criminal offense. The only notice he received was that if he interrupted again, he would be removed; this was not sufficient. Therefore, I would reverse the judgment and order an acquittal.
. From context, it appears the record should be: "... but I can testify to you precisely what was said.”