The Trespass Problem I

 Posted on April 30,2010 in Uncategorized

Here's Texas's criminal trespass statute. In relevant part, a person commits an offense if the person enters or remains on or in property of another without effective consent and the person received notice to depart but failed to do so. "Effective consent" includes consent by a person legally authorized to act for the owner.And here's a typical Harris County criminal trespass information It alleges that Defendant knowingly entered and remained on the property of another, without that person's effective consent, after having received notice to depart and failed to do so.

That the information fails to charge an offense should be immediately apparent, and not worth discussing here.* File a motion to quash before trial, and the prosecutor amends the information (to allege that the entry or stay was without any effective consent), the charge goes away, or an issue on which there is no caselaw but on which the defense is certainly right is preserved for appeal.

In most criminal trespass cases, where the trespassed property belongs to some corporation, the State will never (absent Defendant's admission) be able to prove that the entry or stay was without any effective consent. So forcing the State to plead and prove the negative that the statute requires-that the entry was without any effective consent-is as good as winning the case.

The interesting question is why the standard criminal trespass information used by the largest DA's Office in Texas fails to allege an offense. Because, as prosecutor SM said when arguing about the defendant's motion for directed verdict in the trial I blogged about yesterday, "we do it this way all the time." Defendants plead guilty every day to defective misdemeanor informations. The DA's Office keeps filing defective criminal trespass informations because criminal-defense lawyers keep failing to move to quash them.

"So what?" you might ask, "they're just class B misdemeanors." Class B misdemeanors-up to a $2,000 fine; up to 180 days in jail-are, except for DWI, the back side of the criminal law statue. When the stakes are huge and public, the need to put up a fight is obvious; any fool will litigate a murder case or a kilo case. It takes dedication, though, to apply the same effort to a criminal trespass case.

Dedication, or lots and lots of money.

Preferably both.

*For those to whom it's not immediately apparent, or to whom it is worth discussing: If Joe invited Dave to his house, which Joe rented from Owen, and Joe's wife Charlene told Dave to leave and Dave didn't (because he's Joe's guest), Dave has entered the property of Owen without his consent and received notice to depart (from Charlene) but failed to do so. Under the information, Dave could be convicted, but he's not violating the statute because he's Joe's guest and had effective consent.