Proving greater right of possession in a multi-person household

The definition of “owner” in the Penal Code is intentionally broad. By defining the term as anyone who has a greater right to possession of the property than the defendant, the Penal Code allows the State more flexibility in designating owners for theft, burglary, and similar cases. In Morgan v. State, the Court of Criminal Appeals examined how this broad definition applies when the defendant himself is an owner—though not the exclusive owner—of the property.

The facts
Dewan Morgan moved in with his girlfriend, Regina. He had a key to the apartment and at least occasionally contributed to household expenses, but he did not pay rent, and Regina never added him to the apartment lease. Morgan also did not list the apartment as his address on his driver’s license.
    Seven months after he moved in, Regina and Morgan argued in the morning. Later in the day, they ran into each other at the store, and Morgan followed Regina back to the apartment. Regina locked the deadbolt, which Morgan could not get into with his key. He knocked and rang the doorbell, then threw a rock to break the side window and kicked at the door. Regina called 911. Morgan kicked in the door, pinned Regina to the bed, and bit, punched, and strangled her until the police arrived and arrested him.
    Morgan was charged with burglary of a habitation. Regina testified at trial that when she locked him out of the apartment, she did not intend to revoke Morgan’s right to live at the apartment, but she did not want him to come into the apartment at that time. The jury convicted him.
    On appeal, Morgan argued that he could not have committed burglary because he was an owner of the apartment. The Second Court of Appeals agreed. It relied on Article 21.08 of the Code of Criminal Procedure, which provides that in an indictment, if multiple people own property in common, any or all of them may be alleged as the owner. Thus, the appellate court reasoned, Morgan was a co-owner of the property as a tenant and had a right to be inside.

Greater right of possession
The Court of Criminal Appeals found that the case turned on the Penal Code definition of “owner” rather than Article 21.08. Article 21.08 is only a rule of pleading and is not part of the definition of the offense. Rather, the Penal Code gives a specific definition of “owner” as not just a person with title or possession of the property, but also anyone with “a greater right to possession of the property” than the defendant. The jury was charged on that definition, and as a specialized legal definition, it is the applicable definition in the case.
    In defining ownership as including a greater right to possession, the Legislature specifically allowed for situations where two people may both own property but one has a greater right than the other. Indeed, the theft statute expressly provides that it is not a defense to prosecution that another person has an ownership interest in the property.
    The key, therefore, in the instant case was whether Regina had a greater right to possession of the apartment than Morgan. If they were equal co-tenants, then neither would have the legal right to exclude the other. Here, however, the evidence clearly showed that it was Regina’s apartment and Morgan was simply a roommate. Only Regina was on the lease, only Regina paid rent, and Regina had given Morgan a key. The Court of Criminal Appeals found that she also was free to take it away, and thus she had a greater right of possession to the apartment than Morgan. She was the owner under the Penal Code, and Morgan could be prosecuted for burglary.  
    Morgan also argued that he had effective consent to enter because he lived at the apartment and because Regina testified that she did not intend to revoke his consent to live there by locking him out. But effective consent is determined at the time of the alleged criminal act. Regardless of whether Regina still intended to allow Morgan to live at the apartment, the evidence showed that she had revoked his consent to enter at the time of entry. Regina testified that she did not want Morgan to come into the apartment, she wanted him to go away to cool off, and she intentionally locked the deadbolt that he could not open. Even if she intended to allow him in the apartment again later, he still did not have her consent to enter at that time.

Lessons for the future
This opinion can be an extremely helpful tool in theft, criminal mischief, or burglary cases involving multiple owners. The key is establishing that the victim had a greater right of possession than the defendant did, not that the defendant had no right at all.
    It is important to remember, though, that the argument worked in this case because it was clearly Regina’s apartment and she had the authority to invite or exclude Morgan from it. If they had both been on the lease or paying rent, then the State likely could not have proven that Regina had a greater right of possession. Don’t get carried away, but definitely keep this case in your toolbox when you need to prove ownership when the defendant is also an owner. i

Endnotes

1 Morgan v. State, No. PD-0758-15, 2016 WL 5404322, slip op. (Tex. Crim. App. Sept. 28, 2016).

2 Id., slip op. at 2-3.

3  Morgan v. State, 465 S.W.3d 327, 330 (Tex. App.—Fort Worth 2015).

4  Morgan, slip op. at 9.

5  Id. at 9, n.25, citing Freeman v. State, 707 S.W.2d 597, 603 (Tex. Crim. App. 1986).

6  Tex. Penal Code §1.07(a)(35)(A).

7  Tex. Penal Code §31.10.

8  Morgan, slip op. at 12, citing Freeman, 707 S.W.2d at 604.