NO. 07-02-0005 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L D OCTOBER 17, 2002

______________________________ ROY PERKINS III, APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE COUNT Y COURT AT LAW NO. 2 LUBBOCK COU NTY; NO. 2001-474903; HON ORABLEDRUE FA RMER , JUDGE

_______________________________ Before BOYD, C.J., and QUINN and REAVIS, JJ. Upon a plea of not guilty, a jury convicted appellant Roy Perkins III of cr iminal trespass and the trial court asses sed punishm ent at180 days confinem ent, probated for two years. By two issues, appellant asserts 1) the evidence was insu ffic ient to p rov e his continued presence on the premises occurred without the eff ective consent of the na med com plainant; and (2) the e vidence was insuffi cient to sustai n the convicti on because2

appellant did not receive adequate notice to leave the prem ises. Based upo n th e ra tion ale expressed h erein, we affirm

. On May 21, 2001, betw

een 3:30 and 4:00 a.m ., appellant was visiting his aunt at UniversityMedical Center in Lubboc k, Te xas, and waited in an area near the busi ness office and the em ergency room . At that tim e, two f emale co-w

orkers, Lucero and Roach, wereat their work stati on in the busi ness office. A glass security partition with an opening near the base separated thebusiness office fromthe waiting area. Whil e Roach was standing with he r back to the glass partition, appellant reached underneath the partition into the business o ffi ce through the opening. When Lucero saw appellant reaching through th e openi ng, shedeterm ined appellant wasattem pting to g rab Roa ch. Lu cero warned Roach of appell ant’s actions an d admonished appel lant to remove his han ds. Appellant withdrew

his hands from the window and went to the m en’s room . I n t he meant ime, Lucero , th e na m ed v icti m in the complaint, and Roach reported the occu rrence to the hospital’s security officer, w ho was a lso an off-duty officer w ith the Lubbock Police Departm ent. Theoff

icer sub seq uen tly app roa che d ap pella nt a nd in str ucted h im to leave the premises. Appellant left the building accompanied by theofficer, butwhen he reac hed the parking l ot, he refused to l eave the prem ises and was placed under arrest for crim inal trespass. Byhis first issue, appellant contend s t he e vide ncew as le gally and fac

tua lly insufficient to prove his conti nued presence on the premises occurred withou t the effective3

consent of the nam ed com plainant, Lucero. He argues because Lucero never ex pressed a desire that he be removed from the prem ises and simply gave the police officer her na me and address as a witn ess, the evidence is insufficient to sustain the conv iction. W e disagree. Wh e n both t he le ga l a nd fa ct ua l s uffi ci en cy o f th e e vi de nc e a re cha ll en ge d, we must first deter mine whether the evidence i s legal ly su fficient to support the verdict. Clewis v. State, 92 2 S.W.2d 126, 13 3 (Tex .Cr.App. 1996). It is a fundam ental rule of criminal law that one cannot be convicted of a c rime unless it is show n beyond a rea son abledoubt that the defendan t com mitted eac h element of the all eged o ffense . U.S. C ONST . am end. XIV; T EX . C ODE C R IM . P ROC . A N N . art. 38.03 (Vernon S upp. 2002); T EX . P EN . C ODE A NN . § 2.01 (Vernon S upp. 2002). In conduct ing a legal suf fi ci en cy r ev ie w, we must determ ine wh ether, a fter viewing t he evidence in the light most f avorable to the prosecution, any rationa l tri er of fact cou ld ha ve fo un d t he es se nt i al el eme nt s o f t he cr i me beyond a reasonabl e doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct . 2781, 2789, 61 L.Ed.2d 560, 573(1979 ); Gees a v. S tate, 8 20 S.W.2d 154, 157 (Tex .Cr.A pp. 1991 ), overruled

on other grou nds , Paul son v. State, 28 S .W.3d 570, 573 (Tex.C r.App. 2000). As an appellate c o urt, we m ay not sit as a thi rteenth juror, but must uphold the verdict unless it is irrational or u nsuppor ted by m ore than a m ere mo dicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988 ).4

After conducting a legal sufficiency review under Jackson , we m ay proceed w ith a factual sufficie ncyreview. Cle wis , 922 S .W.2d at 133. TheCourt of Criminal Appeals has directed us to ask w hether a neutral review of all the evidence, both for and against the find ing, dem onstrates that the proof of guilt is so obviously weak as tounderm ine confidence i n th e fa ct f inde r’sdeterm inat ion, or t he p roo f of guilt , alt hou gh a deq uate if taken alone, is greatly outweighed by contrary proof. Johnson v. S tate, 23 S.W.3d 1, 11 (Tex.Cr.A pp. 2000) (adopt ing complete civi l factual sufficie ncyform ulation); see also King v. State , 29S. W.3d 55 6, 5 63 ( Tex .Cr .A pp. 200 0). Accor din gl y, we wi ll re verse the fact finder’s determination on ly if a manifest i njustice has occurred. Johnson , 23 S.W.3d at 12. In conducting this

ana lys is, w e m ay d isag ree w ith t he f act find er’ s de ter m inat ion, eve n if probati ve evidence supports the verdict, but m ust avoid substituting our ju dgmen tfor that of the fact finder. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Cr.App. 1997 ). Beforedetermining whether the evi dence is l egall y sufficie nt to sust ain t he conviction, we m ust review the essential elements the State w as required to prove. The elementsof the offense are t hat: 1) a person 2) w ithout effective consen t 3) enters or remains on t he property or in a building of another 4) when he had notice that entry w as forbidden or received not ice to depar t. T EX . P EN . C ODE A NN . § 30.05(a) (Vernon S upp. 2002)

. According to the com plaint, appellant remained on the property w ith out th e effective consent of Lucero, on e of the hospit al employees on duty i n the busine ss office.5

Appellant arg uestheSt atedid not m eet its burden to prove lack of eff ective consent. We disagree. Lucerotestified that wh en she saw appellant reaching through the w indow that she told him to s top and alerted Roach, and then they both w ent to get the secur ity office r. Luceroand Roach both tes tified about the event and the concern appel la nt’s behavior created. Roach testified she conveyed her concerns to the officer. The officer testified at trial that the tw

o wom en reported that appellant reached under the partition and attem pted to touch Roach and t hatt hey identified appellant at that time by pointing him out. "E ffe ctive co nse nt" incl ude s c ons ent by a pe rso n leg ally

authorize d to act for theown er. T EX . P EN . C ODE A NN . § 1.07(a) (19) (V ern on S upp . 20 02) . "C ons ent " m ean s as sen t in fact, whether express or apparent. T EX . P EN . C ODE A NN . § 1.07(a)( 11) (Ve rnon Su pp. 2002 ). Because consent is defined as “assent in fact, whether express or apparent, ” the absence of co ns en t c an be i nf er re d f ro m the atten ding circumstances. Id. (Em phasis ad ded). Based upon th e officer’s tes tim ony, bo th wom en appro ached h im to re port ap pell ant’s disturbance. Lucero’s desir e appell ant be removed from the presence could therefore be inferred from the attendi ng circumstances. According ly, consi dering th e evidence in the ligh t most

favorable to the prosecution, we find the evidence of lack of effective con sent legally sufficient to support appellant’s criminal trespass conviction. Having concluded th e evidence of lack of effective consent is legally suffici ent to support th e v er di ct , we mu st n ow determ ine, after a neutral review of all the evidence,1 Under exam ination complainant was never asked w hether she wanted ap pellant rem ove d fr

omthehos pita l. 6 whether it is fact ually suffic ient to s upport the verdict. Johnson , 23 S.W.3d at 11. Itis the exclusive province of the fac t finder to determ ine the credibili ty of the w itnesses and the weight to be given their testim ony. Johnson v. State, 571 S .W .2d 170, 173 ( Tex.Cr.A pp. 1978); A rm strong v. State, 95 8 S.W.2d 278, 2 84 (Tex .App. –Am arillo 1997, pet . denied). Appellant argues that when Lucero testifi ed, she clai med she gave the officer her na me and address, but never gave a statem ent to the officer about the dist urbance appellant created. Appellant reasons that as the nam ed com plainant, be cause Lu cero never specifically asked the o fficerto rem ove appellant from t he prem ises, nor did she spe cifi cally

so indi cate under di rect exam ination, 1 that the evide nce is factually insufficient on the issue of effective cons ent. Howe ver, the off icer tes tifie d Lu cer

o ap pro ach ed h im and reported appellant created a disturbance. Although this created a conflict between the com plainant’s and the arresti ng officer ’s testimony, it is the exclusi ve province of the factfind er to de ter m in e the cre dibilit y of thew itne sse s an d th e weigh t tobe g iven the ir testimony. Johnson , 57 1 S .W.2d a t 17 3. A ltho ugh shenever e xp licit lystated under oath a desire appellant be removed from the prem ises, the jury was f ree to conclude that wa s h er desire from the nature of her other tes timony, o r otherwise ex plain the c onfli ct

. Moreover, becaus e the State m ay prove its case by direct or circumstantial evidence so l ong as it shoulders its burden of proving all elements of t he charged offense beyond a7

r eas ona ble doubt, an elem ent of crim inal trespass may be show n by circum stanti a l evidence. McDuff

v. State, 939 S.W.2d 607, 623 (Tex.C r.App.1997). Accordingly, on the issue of effective con sent, we cannot say the proof of gui lt is so obvi ously weak as t o undermine conf

idence in the fact finder’s determ ination. Issue one is overruled. Byhis second issue, appellant contends the ev idence was insufficient to s ustain his convict ion be cause he did not receive adequate notice to leave the prem ises. W e disagree. Thetes tim ony at t rial a bout the ac tua l arr est w as in con flict. Ap pella nt, his m other, and cou sin a ll testified appellant was on his way to his mot her’s vehicle, when t he arresting office r, for r easons unknow n to them , simply placed appellant under arrest. However, the arresting officer testified thathe instructed appellant to leave and followed himto his car in the hospital parking lot, where appellant refused to leave th e p remises prompt ing his arrest. Appellant concedes the officer told him“to leave and not com e back until appellant had reason to com e back. ” Nevertheless appellant contends, w ithout citing any authority in sup por

t of this co ntention, that the notice given to himto leave the prem ises was som ehow

inadequate. We note the jury believed the State’s version of events, but recognize that on the issue of notice, it is irrelevant which version they beli eved because the officer’ s uncon tradicted testim ony tha t he told a ppellant to “leave” i s suf ficient to support appellant’s conviction. Moreover, both ver sions establish that the notice given wasadequate. Becau se he wa s clearly instructed to leave, the officer’s second instruction8

regarding app ellan t’s

m otive fo r re tur n tothehos pita l w as im m ate rial to th e qu est ion of his departur e from the prem ises. W e co nc lu de , u nd er th e a pp ro pr ia te sta nd ar ds of re vi ew, the evidence was both legally and factually sufficient to support a finding of notice to leave under T EX . P EN . C ODE A NN . § 30.05(b)(2)(A) (Vernon S upp. 2002). Issue tw o is overruled. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Rea vis Justice Do not publish.