The Trespass Problem I


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.

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4 responses to “The Trespass Problem I”

  1. When I was a new APD, I had a judge once tell me that I should pick and choose which cases I fall on my sword over. I told her I would defend the disorderly conduct with the same energy and enthusiasm I would a murder case. I believe each criminal prosecution of my client is important, to him and to others. It has an effect on him no matter what the possible penalty. Like the President’s secret service bodyguards, I am paid to fall on my sword for my clients. I am their bodyguard. I have great disdain for those attorneys who feel differently.

  2. Presents a fascinating Section 1983 hypothetical.

    While line prosecutors have absolute immunity from suit, the County and the District Attorney can be sued if there’s an unconstitutional policy or custom. If the County is always charges cases defectively, then there is an unconstitutional policy or custom.

    The issue is more interesting in light of these issues:
    http://nahmodlaw.com/2010/04/06/certiorari-granted-in-connick-v-thompson-a-prosecutorial-failure-to-train-local-government-liability-case/

    Even given Younger v. Harrison, you might be able to file a civil lawsuit the next time a client is charged. You can use the County’s prior bad faith in support of the need for the federal courts to intervene.

    IOW, if you want to test the issue: Next time a client is criminally charged, file a lawsuit in federal court alleging a Section 1983 rights violation, naming the County and District Attorneys as the defendants. Seek an order enjoining the state court criminal case. Use the County’s bad faith to get past Younger abstention.

  3. As to the Motion to Quash, I do not see anything specifically stating “effective consent” includes consent by a person legally authorized to act for the owner. I see the agency language . . . and would move to quash based on failure to negate absolute defenses described within the statute (Firefighters, etc.). Where exactly are you getting the definition of “effective consent” for purposes of this statute.

    I agree, it’s vague in just stating “without effective consent” but it seems to apply to the effective consent “of another.” Effective consent can obviously be obtained without actual consent of Michel, however, if “Michel” = “of another” then effective consent must stem from Michel. Am I missing a definition within the statute or–I hope not–,wrong for a more embarrassing reason?

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