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Ask N Cal Attorney Your Own Question

N Cal Attorney
N Cal Attorney, Lawyer
Category: Criminal Law
Satisfied Customers: 8154
Experience:  Since 1983
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Would a resident of an apartment complex who jumped over a

Customer Question

Would a resident of an apartment complex who jumped over a fence to access his pool during off hours be guilty of criminal trespass in the state of Texas? The apartment is vehemently against any prosecution. The statute describes the notion of "lack of effective consent" as being a prerequisite for the charge of criminal trespass. Would it be possible for a lease holder to be without consent to use a common area which is listed as an amenity on the lease? Would the desires of the apartment complex management/owner be fundamental to the prosecution of the case since it is their consent on which the law is based?
Submitted: 5 years ago.
Category: Criminal Law
Expert:  N Cal Attorney replied 5 years ago.
Would it be possible for a lease holder to be without consent to use a common area which is listed as an amenity on the lease? my answer is No, you cannot be prosecuted for trespassing on land you own or have a possessory interest in, such as the common areas and the pool.

If the complex management do not see this as trespassing it is difficult to see how the DA can charge you with trespassing. You live there. Your lease gives you access to the pool. IMHO you are not guilty of trespassing.

If you tell me your location I can look for a local criminal defense attorney to assist you.
N Cal Attorney, Lawyer
Category: Criminal Law
Satisfied Customers: 8154
Experience: Since 1983
N Cal Attorney and 2 other Criminal Law Specialists are ready to help you
Customer: replied 5 years ago.
Thank you for your input. Briefly could you speculate as to an argument which, in theory, could be used, keeping in mind that we did jump a locked gate. Again, the complex is fully informed and on my side. Does any counter argument come to mind that I should be prepared for?

The current plan is to allow a close friend, a DA in another city, to call the local prosecuters office and introduce me. The friend offered and feels this is a good way to proceed. Once introduced I would describe the facts and I expect the charges would be dropped. If the charges are not dropped I will obtain a lawyer and proceed to a not guity plea at the arraignment. If defered adjudication is offered I may consider accepting if the prosecutor presents a convincing interpretation of the case and my guilt.

I have a spotless record and *any* blemish would complicate my future employment significantly.

Thank you for your time.
Expert:  N Cal Attorney replied 5 years ago.
It sounds like you have a good plan on how to handle this already. I really think he is not guilty.

http://tlo2.tlc.state.tx.us/statutes/docs/PE/content/pdf/pe.007.00.000030.00.pdf has the Texas statute:
Sec.A30.05.AACRIMINAL TRESPASS.A (a)AAA person commits an
offense if he enters or remains on or in property, including an
aircraft or other vehicle, of another without effective consent or
he enters or remains in a building of another without effective
3
consent and he:
(1)AAhad notice that the entry was forbidden; or
(2)AAreceived notice to depart but failed to do so.
(b)AAFor purposes of this section:
(1)AA"Entry" means the intrusion of the entire body.
(2)AA"Notice" means:
(A)AAoral or written communication by the owner or
someone with apparent authority to act for the owner;
(B)AAfencing or other enclosure obviously
designed to exclude intruders or to contain livestock;
(C)AAa sign or signs posted on the property or at
the entrance to the building, reasonably likely to come to the
attention of intruders, indicating that entry is forbidden;
(D)AAthe placement of identifying purple paint
marks on trees or posts on the property, provided that the marks
are:
(i)AAvertical lines of not less than eight
inches in length and not less than one inch in width;
(ii)AAplaced so that the bottom of the mark
is not less than three feet from the ground or more than five feet
from the ground; and
(iii)AAplaced at locations that are readily
visible to any person approaching the property and no more than:
(a)AA100 feet apart on forest land; or
(b)AA1,000 feet apart on land other
than forest land; or
(E)AAthe visible presence on the property of a
crop grown for human consumption that is under cultivation, in the
process of being harvested, or marketable if harvested at the time
of entry.
(3)AA"Shelter center" has the meaning assigned by
Section 51.002, Human Resources Code.
(4)AA"Forest land" means land on which the trees are
potentially valuable for timber products.
(5)AA"Agricultural land" has the meaning assigned by
Section 75.001, Civil Practice and Remedies Code.
(6)AA"Superfund site" means a facility that:
4
(A)AAis on the National Priorities List
established under Section 105 of the federal Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42
U.S.C. Section 9605); or
(B)AAis listed on the state registry established
under Section 361.181, Health and Safety Code.
(7)AA"Critical infrastructure facility" means one of
the following, if completely enclosed by a fence or other physical
barrier that is obviously designed to exclude intruders:
(A)AAa chemical manufacturing facility;
(B)AAa refinery;
(C)AAan electrical power generating facility,
substation, switching station, electrical control center, or
electrical transmission or distribution facility;
(D)AAa water intake structure, water treatment
facility, wastewater treatment plant, or pump station;
(E)AAa natural gas transmission compressor
station;
(F)AAa liquid natural gas terminal or storage
facility;
(G)AAa telecommunications central switching
office;
(H)AAa port, railroad switching yard, trucking
terminal, or other freight transportation facility;
(I)AAa gas processing plant, including a plant
used in the processing, treatment, or fractionation of natural gas;
or
(J)AAa transmission facility used by a federally
licensed radio or television station.
(c)AAIt is a defense to prosecution under this section that
the actor at the time of the offense was a fire fighter or emergency
medical services personnel, as that term is defined by Section
773.003, Health and Safety Code, acting in the lawful discharge of
an official duty under exigent circumstances.
(d)AAAn offense under Subsection (e) is a Class C misdemeanor
unless it is committed in a habitation or unless the actor carries a
deadly weapon on or about the actor ’s person during the commission
5
of the offense, in which event it is a Class A misdemeanor.AAAn
offense under Subsection (a) is a Class B misdemeanor, except that
the offense is a Class A misdemeanor if:
(1)AAthe offense is committed:
(A)AAin a habitation or a shelter center;
(B)AAon a Superfund site; or
(C)AAon or in a critical infrastructure facility;
or
(2)AAthe actor carries a deadly weapon on or about his
person during the commission of the offense.
(e)AAA person commits an offense if without express consent
or if without authorization provided by any law, whether in writing
or other form, the person:
(1)AAenters or remains on agricultural land of another;
(2)AAis on the agricultural land and within 100 feet of
the boundary of the land when apprehended; and
(3)AAhad notice that the entry was forbidden or
received notice to depart but failed to do so.
(f)AAIt is a defense to prosecution under this section that:
(1)AAthe basis on which entry on the property or land or
in the building was forbidden is that entry with a handgun was
forbidden; and
(2)AAthe person was carrying a concealed handgun and a
license issued under Subchapter H, Chapter 411, Government Code, to
carry a concealed handgun of the same category the person was
carrying.
(g)AAIt is a defense to prosecution under this section that
the actor entered a railroad switching yard or any part of a
railroad switching yard and was at that time an employee or a
representative of employees exercising a right under the Railway
Labor Act (45 U.S.C. Section 151 et seq.).
(h)AAAt the punishment stage of a trial in which the attorney
representing the state seeks the increase in punishment provided by
Subsection (d)(1)(C), the defendant may raise the issue as to
whether the defendant entered or remained on or in a critical
infrastructure facility as part of a peaceful or lawful assembly,
including an attempt to exercise rights guaranteed by state or
6
federal labor laws.AAIf the defendant proves the issue in the
affirmative by a preponderance of the evidence, the increase in
punishment provided by Subsection (d)(1)(C) does not apply.
(i)AAThis section does not apply if:
(1)AAthe basis on which entry on the property or land or
in the building was forbidden is that entry with a handgun or other
weapon was forbidden; and
(2)AAthe actor at the time of the offense was a peace
officer, including a commissioned peace officer of a recognized
state, or a special investigator under Article 2.122, Code of
Criminal Procedure, regardless of whether the peace officer or
special investigator was engaged in the actual discharge of an
official duty while carrying the weapon.
(j)AAFor purposes of Subsection (i), "recognized state"
means another state with which the attorney general of this state,
with the approval of the governor of this state, negotiated an
agreement after determining that the other state:
(1)AAhas firearm proficiency requirements for peace
officers; and
(2)AAfully recognizes the right of peace officers
commissioned in this state to carry weapons in the other state.
A

The statute is lengthy but the underlined parts are critical. He arguably never entered property of another because he lives there and it is his property.

My reading of the statute is that he cannot be found guilty for this, at least while the management is on his side and says he had permission to be there.
Customer: replied 5 years ago.
Thank you very much for your time.
Expert:  N Cal Attorney replied 5 years ago.
Thank you very much for the Accept and the bonus!

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