APPELLANTS' BRIEF

Submitted by:

PAUL C. VELTE IV

Counsel for Appellants

State Bar # 20541700

501 Fox Rd.

San Marcos, TX 78666

Velte@ptexans.com

512-353-2299

Fax: 476-9504

Request for Oral Argument: Oral argument is not requested.

TABLE OF CONTENTS............................................................................... ii

INDEX OF AUTHORITIES............................................................................ 1

Parties & Counsel.................................................................................. 2

Statement of the Case....................................................................... 2

Issues Presented.................................................................................... 2

Statement of Facts.............................................................................. 3

Summary of Arguments...................................................................... 3

Argument and Authorities.............................................................. 4

Issue #1: The Court should have charged on ‘all law applicable to the case.’ 4

Issue #2: The evidence was insufficient to prove Appellant was not a tenant (legal sufficiency)................................................................................................... 10

Issue #3: The Court refused to charge on two Lesser-Included Offenses. 11

INDEX OF AUTHORITIES

Cases

Churchill Forge Inc. v. Brown, 61 S.W.3d 368 (Tex. S.Ct., 2001)....................... 6

Cortez v. State, 469 S.W.3d 593 (Tex. Crim. App. 2015)..................................... 3

Goggins v. State, 541 S.W.3d 318, 321 (Tex. App.—Houston [14th Dist.] 2017) 10

Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012)..................................... 4

Proenza v. State, 471 S.W.3d 35 (Tex. App.—Corpus Christi 2015).................. 10

Treatises

49 Tex. Jur. III Landlord and Tenant § 15.............................................. 6

49 Tex. Jur. III Landlord and Tenant § 265............................................ 6

49 Tex. Jur. III Landlord and Tenant § 5............................................ 6

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Parties & Counsel

Appellant: Chano Casarez

Counsel for Appellant:

Paul C. Velte IV – 501 Fox Rd., San Marcos, TX 78666.

Appellee: State of Texas

Counsel for Appellee:

On appeal: Not Known; Criminal District Attorney for Hays County, Texas.

In trial court: Benjamin Moore and Ariane Flores, Asst. Dist. Attorneys.

Statement of the Case

This case was a prosecution on a five count indictment that included three counts of burglary that grew out of a domestic violence situation involving two people who had rented the ‘burglarized’ residence together.

Issues Presented

1. The trial court failed to instruct the jury on “all law” applicable to the case.

2. The burglary counts were not proven by legally sufficient evidence.

3. The trial court denied a lesser included offense instruction on Counts II, III, and V.

Statement of Facts

Appellant was convicted on five counts, three of which alleged a burglary (counts II, III, and V). He pled guilty to counts I and IV, which did not involve a burglary allegation, and the trial court instructed the Jury to convict on those counts. The facts are a rendition of a sometimes violent, stormy ‘dating relationship’ between Appellant and one Rachel Martinez, who rented a house together in 2014 and continuing into 2015, when the alleged criminal acts occurred at the same residence.

Summary of Arguments

Whether or not Appellant is guilty of burglary of a habitation turns on a question of fact—whether or not he was a tenant at the time. The relevant law governing this question was not charged by the trial court, though a charge was requested. Further, the trial court should have directed a verdict since the evidence was insufficient—or against the great weight and preponderance—on this point. Though some evidence was offered, in the form of a ‘renewal’ lease without Appellant’s name on it, the landlord denied he ever signed a renewal lease, that a search of his office revealed no renewal lease, that the lease ‘found’ by the complainant did not bear his signature, and that his usual procedures for lease execution excluded the possibility that the proffered lease was genuine. But these issues aside, the first lease provided that, unless a party to the lease gave a month’s notice of termination, it continued as a month-to-month tenancy. Since no such notice was ever given, Defendant remained a ‘tenant’ and obligated to pay rent after the one year term. There was proof he did pay a rental 13 months after the original term ended.

Argument and Authorities ^*

Issue #1: The Court should have charged on ‘all law applicable to the case.’

This case points up a defect in Texas Criminal Jurisprudence that this lawyer has long viewed as wrong. When, as in this case, a person’s guilt or innocence turns on the application of civil law, trial courts routinely fail to charge a criminal jury on applicable civil law concepts. Despite the fact that the principle is repeated throughout our appellate opinions ad naseum that it is a trial court’s responsibility to charge on “all law applicable to the case,”^{^[1]} yet criminal trial courts in my experience routinely resist doing so. In the context of criminal trials, judges and prosecutors alike take the position that, ‘if it’s not in the penal code, then it does not apply.’ This position has precedent, which is why the under-signed lawyer must argue that the rationale for this rule be re-examined. What purpose does it serve? This lawyer has found no rationale.

Appellant submits this rule is untenable, considering that the penal code, at barely 200 pages,^{^[2]} forms a tiny fraction of our jurisprudence. Our penal code most definitely does not contain “all the answers” to the questions that arise from a multitude of fact patterns that crop up in criminal cases. The present rule, found in a few cases,^{^[3]} that ‘all law’ applicable to a criminal trial exists in the penal code is an artificial limitation that promotes sloth on the part of the criminal bench and bar. Thus, counsel for appellant will argue here that this rule needs to be abandoned because, at its core, failing—as in this case—to charge on applicable civil law constitutes a denial of due process.

In her final argument to the jury, the prosecutor opined,

This is the most important document in the entire trial because it's your rule book, it's your toolbox. When you go back to the deliberation room and you have questions about the law, every single answer to every single question about the law is in this Charge and I encourage you to look for your answers in here.^{^[4]}

Why did the prosecutor stress this point? Given that this charge nowhere stated any rule of law on who is, or is not, a ‘tenant,’ this claim misled the jury. This charge left the jury to its own devices to figure out if Appellant reasonably thought he had a property right to enter the premises he was accused of burglarizing. Can one burgle a place he has a right to enter? This issue was central to counts II, III, and V.

The Law

Defense counsel requested a charge^{^[5]} that was a correct statement of the law, though, it could have been better, for example, by including the property code’s definition of a tenant. “‘Tenant’ means a person who is authorized by a lease to occupy a dwelling to the exclusion of others and [for other statutory purposes not at issue] who is obligated under the lease to pay rent.” Still, this requested charge was sufficient to put the trial judge on notice that his charge needed to address applicable principles of landlord/tenant law.

The court should have defined “tenant,” “lease,” and when a lease terminates—none of which are found in the Penal Code. Applicable Texas law states that a tenant’s possession that is covered by a prior lease but omitted from a succeeding lease is a tenant at will.^{^[6]} This was the situation of Appellant. Another general principle of landlord and tenant law, is this:

[W]here the lease provides that rent . . . is payable monthly and that in the event of a holdover after the term of the lease, the holding over would be on a month-to-month basis at a specified rental rate per month, the holdover tenancy is an extension of the original lease term . . ..^{^[7]}

Pursuant to the Texas Property Code, a tenant may occupy other places as his primary residence,^{^[8]} so it is not necessary that a tenant physically occupy the leasehold.^{^[9]}

The Facts

The proof adduced at trial included:

· A year’s lease dated 2/8/13 (TR vol. 7, p. 299).

· A year’s lease dated 2/12/14 (TR vol. 7, p. 289).

· Rental payments of January through June 2015, (TR vol. 7, p. 309).

The complainant testified that she and Appellant had leased the place together in February 2013, that she renewed the lease alone in February, 2014, but she did not ‘move him out’ until November of 2014.^{^[10]} Appellant paid the rent occasionally, even as late as March of 2015.^{^[11]} The landlord, Fred Bost, brought the only lease he could find (Defense Exhibit #2) with him, testifying he found it where it was supposed to be, in his file cabinet, four years after it was executed.^{^[12]}

After Bost testified about the lease’s provisions for ‘holdover’ tenants, Defense counsel showed him a second, subsequent lease (Defense Exhibit #1), as produced by the complainant.^{^[13]} Bost denied that it bore his signature, though it looked similar.^{^[14]} He further testified to his office’s standard operating procedures for execution of leases.^{^[15]} One of these was to have the tenant sign first, and then landlord.^{^[16]} In the complainant’s case, his office mailed her a renewal lease for her signature, but it was never returned.^{^[17]} A search of his office revealed no second lease.^{^[18]}

The Law Applied to the Facts of this Case

A good question to ask, on these facts, is would the landlord have been able to win a judgment for unpaid rent against Appellant had his co-tenant failed to pay it? The answer is obvious.^{^[19]} Appellant was still obligated on the lease. He never gave a notice to quit, nor did the landlord, and Appellant did not vacate at the end of the first year, as required by the lease. Those were the only three methods to terminate. None of them happened. Couched in terms of sufficiency of the evidence, which is argued below, there was no proof from any source that this lease was ever terminated as to Appellant.

The lease at issue in this case provided that it did not terminate until one party gave one month’s advance notice. Texas law is to the same effect: when a tenant holds over, the lease continues, month-to-month, indefinitely, as long as rent is paid, and etc. Under the authorities cited above, that a ‘new’ lease was in fact executed with only one tenant in February, 2014, became irrelevant to Appellant’s status as a co-tenant without some proof that he either: 1) vacated, 2) gave, or 3) was given a notice to terminate on or after the lease term ended. It is undisputed he did not vacate at the end of the first lease; and there was no proof of #2 or #3 from any source.

In short, he had a right to be in the residence, and therefore, could not have burglarized them. Unfortunately, this appears to be another case of over-zealous prosecution of a bad man by over-charging offenses. Appellant may be a reprehensible man, but he is not a burglar. He will serve time as he should for the offenses properly charged, and proven. But burglary is over-reach, as it was never excluded from possibility that he operated under a reasonable belief that he was still, technically, a tenant. He did, after all, pay rent as late as March 2015.^{^[20]}

If this point is sustained, and it should, then a remand and retrial would be in order; however, if the next point is sustained, a retrial would be unnecessary.

Issue #2: The evidence was insufficient to prove Appellant was not a tenant (legal sufficiency).

For the reasons set forth under Issue #1, the evidence was legally insufficient to prove a fact that the state had the burden to prove: That Appellant had no right to enter the premises.

Legal sufficiency is measured by the elements of the offense as defined by a hypothetically correct jury charge. “Such a 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.”^{^[21]}

As contended in point #1, the hypothetically correct charge in this case would require some instruction on the law of leases. Measured against that hypothetical charge, the evidence in this case falls short. Therefore, Appellant should be acquitted of all burglary counts.

Issue #3: The Court refused to charge on two Lesser-Included Offenses.

The trial judge has a duty to prepare a jury charge that accurately sets out the law applicable to the specific offense charged. That includes the duty to instruct the jury on the law applicable to the case even if defense counsel fails to object to inclusions in or exclusions from the charge. But a jury instruction on a lesser included offense is not the law applicable to the case without a request by the defense for its inclusion in the jury charge.^{^[22]}

In this case, Defense counsel duly requested LIO’s be included for each burglary count—on the theory that the jury might agree Appellant wasn’t a burglar, but guilty of the acts allegedly committed, or intended, after entry. This appears in vol. 5, pages 56 through 58 of the trial transcript.

In each count (II, III, and V), the existence of a burglary was predicated on an ‘entry’ plus the commission of a felony inside, (not theft), or, in the case of Count III, on Defendant’s intent to commit an assault.^{^[23]} Counsel properly requested that each count also be charged as the lesser included offense contained within the burglary count. There was no reason not to do this. There was some evidence that Appellant was a tenant (andnot a burglar) because of the reasons set forth in points #1 and #2 (i.e., his lease never terminated). It was incumbent upon the trial judge to charge the ‘lesser-includeds’ on counts II, III, and V. If point #2 is not sustained, then this cause should be remanded for a retrial of those counts, properly charged.

Prayer

Appellant respectfully prays for justice, for a reversal and acquittal of the three burglary counts, or in the alternative, for a remand for a new, and fairer, trial.

Respectfully Submitted,

Paul C. Velte IV

501 Fox Rd.

San Marcos, TX 78666

512-476-2299

Fax 476-4974

Bar #20541700

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE TRAP 9.4(i)(3)

I hereby certify that the word processor used to generate this brief reports an total word count of 2475.

CERTIFICATE OF SERVICE

I hereby certify that an exact copy of this document was served upon the following person(s) on the 6th day of July, 2018:

Hays County District Attorney's Office, via e-service at the time of e-filing.

Paul C. Velte IV

^* Clerk’s record will be cited as “CR” and the trial transcript as “TR” followed by page and line references.

^{^[1]} E.g., Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). See also, hundreds of cases collected at West Keynote 110 Criminal Law, XX Trial, k769 Duty of judge in general.

^{^[3]} “We have generally held that, if a jury-charge instruction ‘is not derived from the [penal] code, it is not ‘applicable law’ under art. 36.14.” Kirsch v. State, 357 S.W.3d 645, 651, (Tex. Crim. App. 2012)(quoting Walters. v. State, 247 S.W.3d 204, 214).

^{^[4]} TR vol. 5/72, Statement of Ariane Flores (emphasis added).

^{^[5]} TR vol 5, p. 35/16-20. “You are instructed when a residential lease ends and the tenant or tenants named on the lease do not move out and continue paying rent, said tenants continue as tenants on a month-to-month basis.”

^{^[6]} 49 Tex. Jur. III Landlord and Tenant § 15.

^{^[7]} 49 Tex. Jur. III Landlord and Tenant § 265 (emphasis added).

^{^[8]} 49 Tex. Jur. III Landlord and Tenant § 5 (upon notice, a landlord must send notices to such other, primary address).

^{^[9]} See, Churchill Forge Inc. v. Brown, 61 S.W.3d 368 (Tex. S.Ct., 2001)(co-tenant found liable for damages of actual tenant)(Oral argument confirms the tenant being sued was not living in the apartment).

^{^[10]} TR vol. 5, p. 12/8-18 (testimony of Ms. Martinez).

^{^[13]} She produced the document in the middle of trial. TR vol. 5, p. 8/1 – 9/8.

^{^[19]} Another interesting question is, had Ms. Martinez shot and killed Appellant on one of the ‘burglary’ occasions, would she be entitled to raise the ‘castle doctrine’ as a defense in a prosecution for murder?

^{^[21]} Proenza v. State, 471 S.W.3d 35, 44 (Tex. App.—Corpus Christi 2015), aff'd in part and remanded, 541 S.W.3d 786 (Tex. Crim. App. 2017)(citations ommitted).

^{^[22]} Goggins v. State, 541 S.W.3d 318, 321 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd).

^{^[23]} The indictments appear at CR pp. 5 – 7.