Affirmed as Modified; Opinion Filed June 16, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-00494-CR

RONNIE DILLARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court of Appeals No. 2

Dallas County, Texas

Trial Court Cause No. MB12-63717-M

MEMORANDUM OPINION

Before Justices Lang, Myers, and Brown 

Opinion by Justice Lang

Ronnie Dillard was charged by information with the offense of criminal trespass to which 

he pled not guilty. He was convicted by a jury, and the trial court set punishment at ninety days 

confinement in the Dallas County Jail, probated for six months. In his three issues, Dillard 

argues (1) the trial court erred by not instructing the jury on an affirmative defense to criminal 

trespass, (2) the evidence is insufficient to support a finding beyond a reasonable doubt that 

Dillard committed the offense of criminal trespass, and (3) the judgment should be modified to 

correctly reflect the names of the prosecutors in this case. We decide against Dillard on issues 

one and two and in his favor on issue three. Accordingly, we conclude the judgment should be 

modified to correctly reflect the names of the prosecutors. As modified, the trial court’s

judgment is affirmed.
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I. FACTUAL AND PROCEDURAL BACKGROUND

The testimony at trial shows that, pursuant to a one-year lease beginning in November 

2011, Dillard operated a business selling chess-related products from a kiosk in the food court of 

the Southwest Park Mall. The mall was owned by Southwest Center Properties (SWCP).

Lisa Long was the General Manager of SWCP and supervised daily operations of the 

mall, including “keeping the property compliant, up to code” and supervising “over security, 

over operations, maintenance, . . . [and] day to-day routine things.” Long testified she knew 

Dillard and that Dillard committed two violations during his lease term. The first violation was 

nonpayment of rent, and the second was his use of the premises to operate a separate airbrushing 

business.

1 Long testified the monetary default was cured by Dillard’s subsequent rent payment, 

but the use violation was not cured.

Long testified she learned about Dillard’s separate airbrushing business on September 17, 

2012, from fliers Dillard passed out in the mall. Long then contacted Dillard by email “out of 

courtesy” and in person, requesting that Dillard rent an additional space to run the airbrushing 

business. At the direction of SWCP owners, Long also sent a written notice of default to Dillard 

on September 25, 2012, requesting that he cease operations of the airbrushing business. Long 

testified this latter notice both notified Dillard of the default and advised Dillard he had ten 

additional days to cure the default.2 Because Dillard did not respond to the notices, Long stated

Dillard was “locked out” of his kiosk at the mall “on the 10th day of the default.”

On October 8 or 9, 2012,3 Dillard went to Long’s office and demanded that he be allowed 

to operate his business.

4

 Long told him he would not be allowed to continue any of his 

 1 Dillard testified that he began this business to sell airbrush “tattoos,” believing it would generate more traffic for his store.

2 The default notice relating to the airbrushing business does not appear in the record.

3 Long testified the offense occurred on October 8, 2012. The information states the offense occurred on October 9, 2012, a date that was 

also corroborated by the testimony of a police officer called to the scene.
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operations and asked him to leave. Long testified Dillard began to “verbally attack[]” her and 

her staff and described Dillard as “out of control.” Her assistant called security. 

Dallas Police Officer Quinn Huntley and a mall security officer responded.5 Officer 

Huntley testified he observed Long and mall security staff ask Dillard to leave the premises and 

that Dillard appeared “pretty upset, pretty irate.” After Dillard was given several opportunities to 

leave on his own, Officer Huntley arrested Dillard and gave him a “criminal trespass warning 

form.”

Dillard testified he had indeed briefly operated an airbrushing business out of his kiosk, 

but said he ceased his airbrushing business the day he received the notice to cease operations 

from SWCP. However, Dillard admitted that he did not take the equipment off the property.

Two men who had played chess with Dillard at the mall testified on his behalf. They

stated Dillard ceased his airbrushing venture within two or three weeks of opening that part of 

his business because SWCP had informed him he could not sell tattoos anymore.

Dillard testified he believed he had a right to be at the mall on the day of his arrest by 

virtue of his lease. He stated that, since a rent check had been cashed on October 4, 2012, he 

believed any “defect” in the lease “had been cured.” Dillard also denied ever being asked to 

leave the mall property prior to the day he was arrested. Dillard further stated he believed his 

relationship with Long deteriorated because “she had a problem with” his chess club that

advertised and held tournaments on mall property and because Long “didn’t like” him.

 4 Long testified Dillard “came to [her] office about 1:00 o’clock demanding that we unlock his cart and let him continue operating.” It is 

not clear from the record if Dillard had demanded to continue his chess business, his airbrushing business, or both.

5 According to Long, the security guard “officed across the hall from [Long’s] office, so he walked in. And then, of course, DPD heard the 

call and came immediately.” 
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II. ERROR IN FAILING TO CHARGE JURY ON AFFIRMATIVE DEFENSE

A. Standard of Review

Potential jury charge error is reviewed according to the procedure given in Almanza v. 

State. 686 S.W.2d 167, 171 (Tex. Crim. App. 1985) (op. on reh’g); see also Barrios v. State, 283 

S.W.3d 348, 350 (Tex. Crim. App. 2009). The reviewing court must determine whether there is 

error in the charge. Barrios, 283 S.W.3d at 350. If there was error and the appellant objected to 

it at trial, “reversal is required if the error ‘is calculated to injure the rights of the defendant.’” 

Id. (quoting Almanza, 686 S.W.2d at 171). If there is no objection, this harm must be 

“fundamental” and will require reversal “only if it was so egregious and created such harm that

the defendant ‘has not had a fair and impartial trial.’” Id.

When examining the record for egregious harm, the reviewing court should consider “1) 

the entire jury charge, 2) the state of the evidence, including the contested issues and the weight 

of the probative evidence, 3) the final arguments of the parties, and 4) any other relevant 

information revealed by the record of the trial as a whole.” Allen v. State, 253 S.W.3d 260, 264 

(Tex. Crim. App. 2008). “Jury charge error is egregiously harmful if it affects the very basis of 

the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Id.

B. Applicable Law

A person commits the offense of criminal trespass “if the person enters or remains on or 

in property of another . . . without effective consent and the person: (1) had notice that the entry 

was forbidden; or (2) received notice to depart but failed to do so.” TEX. PENAL CODE ANN. §

30.05(a) (West 2013). It is a defense to prosecution for this offense if the actor at the time of the 

offense was “a person who was: (A) employed by or acting as agent for an entity that had, or that 

the person reasonably believed had, effective consent or authorization provided by law to enter 
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the property; and (B) performing a duty within the scope of that employment or agency.” TEX.

PENAL CODE ANN. § 30.05(e)(3) (West 2013).

The trial judge is “ultimately responsible for the accuracy of the jury charge and 

accompanying instructions.” Vega v. State, 394 S.W.3d 514, 518 (Tex. Crim. App. 2013) 

(quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). The Code of Criminal 

Procedure requires the trial judge to “deliver to the jury, except in pleas of guilty, where a jury 

has been waived, a written charge distinctly setting forth the law applicable to the case.” TEX.

CODE CRIM. PROC. ANN. art. 36.14. This duty requires the judge “to instruct the jury on law 

applicable to the case even if defense counsel fails to object to inclusions or exclusions in the 

charge.” Vega, 394 S.W.3d at 519. 

However, the trial judge has no duty “to instruct the jury sua sponte on unrequested 

defensive issues because an unrequested defensive issue is not the law ‘applicable to the case.’” 

Id. (quoting Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998)). “A defendant cannot 

complain on appeal about the trial judge’s failure to include a defensive instruction that he did 

not preserve by request or objection: he has procedurally defaulted any such complaint.” Id.

C. Application of the Law to the Facts

In his first issue, Dillard contends the trial court erred by not instructing the jury on the

affirmative defense to criminal trespass provided for in Penal Code § 50.03 since “it was 

reasonable that [Dillard] felt he had effective consent” to be on the property by virtue of his 

lease. He further argues that, since he was an employee of his business and acting within the 

scope of his business on the day of the arrest, he was entitled to the affirmative defense on this 

ground as well. Dillard concedes he did not object to the jury charge, but argues that the trial 

court’s failure to instruct the jury on this affirmative defense was “egregious and merits 

reversal.” 
–6–

The State responds that, though a trial court may be required to provide the jury with the 

applicable law of the case, the trial court is under “no duty to sua sponte instruct a jury on an 

unrequested defensive issue.” Thus, the State argues there is no jury charge error, and Almanza

does not apply. 

The record reflects that Dillard’s counsel stated he had “no objections” and “no requests”

to the jury charge. The trial judge had no duty to instruct the jury sua sponte on the unrequested 

affirmative defense provided for in Penal Code § 30.05(e)(3) because this defensive issue is not 

the “law applicable to the case.” See Vega, 394 S.W.3d at 519. Consequently, we decide against 

Dillard on his first issue.

III. SUFFICIENCY OF THE EVIDENCE

In his second issue, Dillard contends the evidence is insufficient to support a finding 

beyond a reasonable doubt that he committed the offense of criminal trespass.

A. Standard of Review and Applicable Law

When a defendant argues the evidence is legally insufficient to support his conviction, the 

reviewing court must consider all the evidence in the light most favorable to the verdict and 

“determine whether, based on that evidence and reasonable inferences therefrom, a rational fact 

finder could have found the essential elements of the crime beyond a reasonable doubt.” Gear v. 

State, 340 S.W.3d 743, 746 (Tex. Crim. App. 20011) (citing Jackson v. Virginia, 443 U.S. 307, 

319 (1979)). A reviewing court cannot “re-evaluate the weight and credibility of the record 

evidence” and “substitute [its] judgment for that of the fact-finder.” Williams v. State, 235 

S.W.3d 742, 750 (Tex. Crim. App. 2007) (quoting Dewberry v. State, 4 S.W.3d 735, 740 (Tex. 

Crim. App. 1999)). 
–7–

B. Application of the Law to the Facts

Dillard argues the evidence is insufficient to prove he committed the offense of criminal 

trespass. Specifically, he contends the State failed to prove the “elements” of “without effective 

consent” and “notice that entry was forbidden” pursuant to Penal Code § 30.05(a). As to the 

“element” of “without effective consent,” Dillard contends he “had the effective consent of the 

ownership” to be on the mall property unless the lease had been terminated according to its 

terms. He further asserts the evidence did not establish beyond a reasonable doubt that his lease 

had been terminated or that he had been banned from the property. As to the “element” of 

“notice that entry was forbidden,” Dillard argues the notice he received regarding the airbrushing 

business only required him to cease operations, not to vacate the property. He further asserts 

that, since Long did not testify as to whether Dillard was forbidden from the property or was 

aware of the lockout prior to the day of his arrest, the evidence was insufficient to show beyond a 

reasonable that Dillard received notice he was forbidden from the mall property.

The State responds, viewing the evidence from the record in the light most favorable to 

the guilty verdict, a reasonable juror could have found beyond a reasonable doubt that Dillard 

was guilty of criminal trespass. The State concedes the “jury heard conflicting testimony 

regarding whether [Dillard] was in default of his lease on the day of the offense,” but argues this 

court “must presume that the jury resolved this conflict in favor of the prosecution and must 

defer to that determination.” We agree. 

In our review, we must give deference to the “the responsibility of the trier of fact to 

fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences 

from basic facts to ultimate facts.” See Williams, 235 S.W.3d at 750. In this case, the jury heard 

testimony from Long that Dillard was in default because he had begun to operate an airbrushing

business from his mall kiosk, as well as testimony from Dillard stating that he received a letter 
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from Long demanding he cease his airbrushing business. Though the jury heard conflicting 

testimony regarding whether Dillard had complied with Long’s request to cease his airbrushing 

operations by the day of the offense, we must defer to the jury to fairly resolve these conflicts 

and weigh the evidence. See id. We decide against Dillard on his second issue.

IV. MODIFYING THE JUDGMENT TO CORRECTLY REFLECT THE NAMES OF 

THE PROSECUTORS

In his third issue, Dillard argues the judgment should be modified to correctly reflect the 

names of the prosecutors in this case. The record reflects the prosecutors were Veronica Sanders 

and Drew Taylor. However, the judgment states that the prosecutor was Gaelle Lauriston. The 

State agrees with Dillard that the judgment should be modified to correctly reflect the names of 

the prosecutors.

This Court has the power to modify an incorrect judgment to make the record speak the 

truth where we have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. 

State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993) (en banc); Asberry v. State, 813 S.W.2d 

526, 529-30 (Tex. App.—Dallas 1991, pet. ref’d); see also Robinson v. State, No. 05-12-00859-

CR, 2013 WL 5969559, at *5 (Tex. App.—Dallas Nov. 7, 2013, pet. ref’d) (not designated for 

publication) (modifying judgment to correctly reflect names of trial prosecutors).

We decide in Dillard’s favor on his third issue and modify the judgment to reflect that the 

prosecutors in Dillard’s case were Veronica Sanders and Drew Taylor.
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V. CONCLUSION

We modify the judgment to correctly identify the prosecutors in Dillard’s case and affirm 

the judgment as modified. 

Do Not Publish

TEX. R. APP. P. 47.2(b)

130494F.U05

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE
–10–

Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

RONNIE DILLARD, Appellant

No. 05-13-00494-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court 

of Appeals No. 2, Dallas County, Texas

Trial Court Cause No. MB12-63717-M.

Opinion delivered by Justice Lang. Justices 

Myers and Brown participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED

as follows:

to reflect that the prosecutors in Dillard’s case before the trial court were 

Veronica Sanders and Drew Taylor.

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 16th day of June, 2014.

/Douglas S. Lang/

DOUGLAS S. LANG

JUSTICE