No. 4-04-00788-CR
Delivered and Filed: December 21, 2005. DO NOT PUBLISH.
Appeal from the County Court at Law No. 2, Bexar County, Texas, Trial Court No. 812484, Honorable Paul Canales, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
Opinion by: SARAH B. DUNCAN, Justice.
Jose Alvaro Perez appeals the trial court's judgment convicting him of criminal trespass. We affirm the trial court's judgment.
Factual and Procedural Background
In mid-August 2001, when Jose Alvaro Perez learned that he could no longer check out plans overnight because the City of San Antonio's Economic Development Department had changed its policy, he became angry, loud, and disruptive. Concerned about Perez's behavior, manager Grace Luna spoke to her boss, who told her she should contact the police if Perez returned and became disruptive again. Perez returned August 21st and again became loud and disruptive. When Perez ignored Luna's requests to keep his voice down, she called the police. A police officer asked Luna and another manager if they wanted Perez to leave the office. They responded affirmatively. After Perez was warned that if he returned to the department's office he would be arrested for criminal trespass, he was escorted out of the building. Thus, when Perez returned to the department's office on March 19, 2002, he was asked to leave by a police officer. When Perez refused, he was arrested for trespass. After a jury trial, Perez was convicted of criminal trespass, fined $400, and assessed court costs. Discussion
1. Perez first argues the evidence is legally and factually insufficient to support his conviction because the warning he received was "legally void" since the departmental staff and the police officers did not own the building and thus had no authority to issue a trespass warning for the entire building. We disagree. Although the departmental staff did not own the building, they did — as Perez concedes — have a greater right to possession of the office than he did. Accordingly, relative to Perez and for purposes of criminal trespass, members of the departmental staff were the effective owners of the office. See Tex. Pen. Code Ann. § 30.05(a)(1) (Vernon Supp. 2005) (person commits criminal trespass if he enters or remains on property of another without effective consent and had notice that entry was forbidden); id. § 30.05(b)(2) (defining "notice" as an "oral or written communication by the owner or someone with apparent authority to act for the owner"); id. § 1.07(a)(35)(A) (defining "owner" as "a person who has title to the property, possession of the property, whether lawful or not, or a greater right of possession of the property than the actor ") (emphasis added). And, although it is true Perez was warned not to return to the building, he was also warned not to return to the office. Therefore, a rational jury could conclude beyond a reasonable doubt both that Luna and the police officer had apparent authority to give Perez notice that entry into the office was forbidden and that Perez had sufficient notice that his entry into the Economic Development Department office was forbidden. We therefore hold the evidence is legally and factually sufficient to sustain Perez's conviction. 2. Perez next argues the trial court erred in denying his motion to dismiss on the ground that the criminal trespass statute is unconstitutional as applied to him because it is being used to regulate his speech rather than his conduct. We disagree. Perez was arrested for and charged with criminal trespass not for the content of his complaints but for his conduct in voicing them. The use of the criminal trespass statute to regulate conduct, not speech, is constitutionally permissible. See Reed v. State, 762 S.W.2d 640, 644 (Tex.App.-Texarkana 1988, pet. ref'd) (holding that, because the purpose of the criminal trespass statute is to regulate conduct, not speech,"[a] general trespass statute may be constitutionally applied, even to those who trespass in order to communicate, so long as it is applied without discrimination and is not used for the primary purpose of suppressing speech"), cert. denied, 493 U.S. 822 (1989). Accordingly, the trial court did not err in denying Perez's motion to dismiss. The judgment of the trial court is affirmed.