Case Summary - Joe Christian Salazar v. State

Joe Salazar broke into an empty house that was being remodeled for resale. Police got a call about the burglary in progress and arrived on the scene in time to see him scampering out the back door. After they caught him, they went back to the house and found various household items and supplies stacked neatly in an alley behind the backyard fence. The State charged Salazar with burglary, alleging in the indictment that he "did then and there intentionally and knowingly enter a habitation without the effective consent of Linda Pohlmeier, the owner of the habitation and attempted to commit or committed theft of property." At trial he requested an instruction the lesser-included offense of criminal trespass. The trial court refused and he was found guilty of burglary.

On appeal, Salazar complained about the denial of the lesser-included. In its published opinion, the court of appeals rejected Salazar's argument because the indictment did not allege that notice was forbidden. Thus, applying Hall, the statutory elements of burglary as modified by the indictment did not contain a necessary element for criminal trespass. Here's a link to the court of appeals case information if you're interested.

The CCA reversed because a habitation inherently provides notice that entry is forbidden. Writing for an eight-judge majority, Judge Womack examined "the hierarchy of properties" to explain why habitations carry the greatest expectations of privacy. Unimproved land requires some fencing to let the entrant know that entry is forbidden. Buildings confer explicit notice that entry is forbidden, but they require some signs that indicate privacy because they are typically commercial properties used for employment. Habitations are entitled to the most privacy because the definition of "habitation" requires that it be adapted for overnight accommodation of persons. Most habitations are not open to the public. We learn through common experience and societal norms that it is essential to seek permission to enter a habitation. [If this were Cochran writing you just know there would've been a reference to vampires and maybe even a cite to The Lost Boys.]

Most importantly, the CCA had previously noted in Moreno v. State, albeit in a footnote, that habitations inherently give notice that entry was forbidden. True, Moreno held that criminal trespass was a lesser of burglary under a lesser-included analysis that pre-dated Hall, but that didn't disturb the analysis of the term "habitation." Also, the legislature relied upon the inherent notice of habitations when drafting the burglary statute.

So, because a habitation implicitly gives notice that entry is forbidden, it's not necessary to include the element of notice in an indictment for burglary. To do so would be redundant. Presiding Judge Keller filed a concurring opinion to note that there was no need to go through all the talk about the "hierarchy of property" when the definition of "notice" includes "an enclosure obviously designed to exclude intruders". She also noted that reliance upon common and experience and societal norms may have its place when we need to resort to non-statutory guidance to erode the bright line rule set out in Hall is not necessary in this case. Here's a link to the CCA case info if you're interested. And, here's a link to the oral argument, if you're interested.

[Personally, I was fine with the majority opinion until I read Presiding Judge Keller's concurrence. I think I just like her opinion better because it shows there's no real need to write a James Michener novel on the history of property to reach this conclusion and I appreciate the judicial restraint.]