Magdalena Lucero v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00171-CR

MAGDALENA LUCERO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 222nd District Court
Deaf Smith County, Texas
Trial Court No. CR-2022E-067, Honorable Roland D. Saul, Presiding

February 24, 2025
OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.

Before us is a landlord-tenant relationship gone awry. Because the tenant failed

to timely pay rent, the landlord undertook self-help (as opposed to statutory) eviction

measures. They consisted of entering the abode and removing much of the tenant’s

personalty located therein. Her efforts resulted in her prosecution and conviction for

burglarizing a habitation. The landlord, Magdalena Lucero, now appeals the conviction

through two issues. Allegedly, the evidence fails to support her conviction, and the trial
court erred in admitting the testimony of a Justice of the Peace over the objection of

appellant. We affirm.

Issue One—Sufficiency of the Evidence

By her first issue, appellant contends the evidence was insufficient to support the

conviction. She launched several fronts to her attack. The first implicates the civil or

contractual nature of a landlord-tenant relationship and addressing breaches to the

agreement. The relationship being contractual for which civil forms of redress are

provided, breaching the contract through self-help eviction cannot give rise to prosecution

for burglary, or so argues appellant. Next, she posits that the evidence of guilt is deficient

since the “title-holder to the property will always ultimately have a greater right to

possession than any tenant”; so, undertaking remedial measures like those practiced

here only reflect an intent to recover one’s own property, “not intent to commit theft.” Also,

mixed into the milieu is the undeveloped allegation about the property being

uninhabitable. We overrule the issue.

We apply the standard of review explained in Alfaro-Jimenez v. State, 577 S.W.3d

240 (Tex. Crim. App. 2019). We also note that Texas has criminalized, as burglary, the

act of entering a habitation without the effective consent of the owner with intent to commit

a theft. TEX. PENAL CODE ANN. § 30.02(a)(1). 1 That was the charge described within the

indictment at bar. That said, we turn to the issues at hand.

Regarding the allegation that the dispute was cognizable only as a civil matter, we

encounter nothing in § 30.02 barring its application to conduct arising from a landlord-

1 Theft occurs when a person unlawfully appropriates property with intent to deprive the owner of

property. TEX. PENAL CODE ANN. § 31.03(2). Furthermore, appropriation of property is unlawful if without
the owner’s effective consent. Id. at § 31.03(b)(1).

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tenant dispute. Admittedly, disputes may be both of a civil and criminal nature, and care

must be taken to avoid making criminal that which is actually a civil matter. See e.g.,

Jacobs v. State, 230 S.W.3d 225, 232 (Tex. App.—Houston [14th Dist.] 2006, no pet.)

(involving a prosecution for theft arising from a purported breach of contract and reversing

the conviction due to the absence of evidence establishing the requisite intent); Reed v.

State, 717 S.W.2d 643, 644-45 (Tex. App.—Amarillo 1986, no pet.) (involving a theft

prosecution arising from incomplete performance of a contract and reversing the

conviction because no evidence established the element of intent to deprive). But, as

observed in Roberts v. State, 278 S.W.3d 778, 789 (Tex. App.—San Antonio 2008, pet.

ref’d), “[a]lthough contractual arrangements are generally considered a civil matter and

breaches are typically civil matters involving damages, conduct involving contractual

arrangements can result in criminal charges in certain circumstances depending on the

nature of the actions taken.” So, contrary to appellant’s contention, a dispute being

subject to redress through civil means does not, ipso facto, insulate conduct related

thereto from criminal prosecution if that conduct otherwise satisfies the elements of a

crime. Nor do we read the authority cited by appellant, that is, Salas v. State, 548 S.W.2d

52 (Tex. Crim. App. 1977), as requiring a contrary result.

The court in Salas dealt with renting a room in a hotel and someone other than the

renter entering the room to steal the television. The question concerned the identity of

the “owner” under the burglary statute. Was it the person who actually rented the room

for the evening or the hotel manager? The court said both persons fell within the category.

Id. at 53-54. More importantly, nowhere in its opinion did it intimate that disputes between

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the renter and hotel owner about the latter entering the room to remove personal items of

the former posed merely a civil matter.

Yet, in holding that both persons could have been named the owner, Salas actually

negates another argument posed by appellant. She suggests that “a title owner in the

context of the instant case will always have a greater right to possession than any tenant.”

So, in her estimation, entry by the title owner is always with consent to the “owner.” This

is inaccurate for several reasons.

First, one cannot forget that in Salas, the Court of Criminal Appeals observed that

the renter also fell within the class of “owner.” It may have so concluded because the

renter has possession and control over the room upon renting it. And, that leads us to

the second reason. Statute defines “owner” as including the person with “a greater right

to possession of the property than the actor.” TEX. PENAL CODE ANN. § 1.07(35). Upon

entering a lease, a lessor relinquishes possession or occupancy of the property to the

lessee. Levesque v. Wilkens, 57 S.W.3d 499, 504-505 (Tex. App.—Houston [14th Dist.]

2001, no pet.). The latter gains exclusive possession of the premises as against the

owner. Id. In other words, the owner loses the right to possess the property to which he

may hold title for that right was granted the tenant. Given this, we cannot but reject

appellant’s notion that the title owner to leased property “will always have a greater right

to possession than any tenant.”2

2 We leave for another day the question whether a lessor’s entry based upon a reservation of rights

in a lease agreement requires a different answer. Appellant did not argue before us that she entered the
property based on some reservation within the lease agreement. Of course, we cannot but wonder whether
entry per a lease provision contemplates or authorizes entry with the intent to commit a felony or theft.

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As for the element of mens rea, appellant says “there was no evidence [she]

intended to commit theft.” Rather, her conduct consisted of “merely trying to recover

possession of her own property, to which she had title.” Yet, in supposedly wanting to

recover possession of her own property, she exercised control over the personalty of her

tenant by placing much of it in her (appellant’s) truck and throwing some of it in a

dumpster. And, as admitted to the police chief, she did so without the tenant’s permission.

The chief further heard her say that though she had a “contract” with the tenant, it “didn’t

necessarily allow for her to either enter the property or remove any property.” Nor had

she begun, much less completed, statutory eviction procedures, which was another

matter appellant revealed to others. The latter is of import because until the completion

of that process, a tenant maintains possession of the leased realty. Russell v. Am. Real

Estate Corp., 89 S.W.3d 204, 208-209 (Tex. App.—Corpus Christi 2002, no pet.). And,

that appellant was familiar with the formal eviction procedures at the time of her entry was

evinced by evidence indicating she previously utilized them. We further note the evidence

of her misrepresenting to authorities that the abode had been abandoned. Indeed,

appellant and her tenant texted each other a day earlier about the rent then due, and in

that text exchange the tenant revealed her intent to pay it. Lying about the home being

abandoned evinces a consciousness of guilt regarding her activities. See Woods v. State,

No. 07-22-00208-CR, 2023 Tex. App. LEXIS 5696, at *3-4 (Tex. App.—Amarillo Aug. 1,

2023, no pet.) (mem. op., not designated for publication) (recognizing that lying is one of

the strongest kinds of evidence of guilt).

Simply put, a person commits theft if he or she unlawfully appropriates property

with intent to deprive the owner of it. TEX. PENAL CODE ANN. §§ 30.02; 31.01.

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Appropriation occurs when one exercises control over the property, id. at § 31.01(4)(B),

which appropriation is unlawful if done without the owner’s effective consent. Id. at §

31.01(3). The evidence described in the immediately preceding paragraph is some from

which a rational factfinder could infer, beyond reasonable doubt, that appellant entered

the home with the intent to commit each element of theft and actually committed each

element. She entered the abode without the tenant’s consent and removed and disposed

of the tenant’s property without consent. Then she apparently lied to others about doing

so because the tenant abandoned the house.

The final component of appellant’s first issue concerns proof that the abode was a

habitation. Appellant argues that “there was insufficient evidence to establish the property

in question was suitable for habitation.” Again, burglary requires entry of “a habitation.”

The legislature defined “habitation" to mean “a structure or vehicle that is adapted for the

overnight accommodation of persons.” TEX. PENAL CODE ANN. § 30.01(1). Evidence that

appellant rented the house for residential purposes and at least one person both furnished

and lived in the house is some evidence permitting a rational factfinder to reasonably

infer, beyond reasonable doubt, that the structure appellant entered was adapted for

overnight accommodation of persons, that is, was an actual “habitation.”

Issue Two—Admission of Evidence

Through her second issue, appellant argues that “[t]he trial court erroneously

permitted a justice of the peace to testify as a legal expert and offer opinion testimony

and legal conclusions about tenant-landlord and criminal matters. No gatekeeper function

was exercised whatsoever.” We overrule the issue.

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Appellate courts review a trial court’s rulings on the admission of evidence,

including expert testimony, for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664,

669 (Tex. Crim. App. 2019). A trial court abuses its discretion when it acts without

reference to any guiding rules and principles or when it acts arbitrarily or unreasonably.

Id. Yet, before applying that test, we have a duty to determine, sua sponte, whether the

appellant preserved the complaint for review. Darcy v. State, 488 S.W.3d 325, 327-28

(Tex. Crim. App. 2016). We do that now.

Preserving a complaint for review obligates one to present the trial court with a

timely objection or motion stating the specific grounds for the ruling desired. Gibson v.

State, 541 S.W.3d 164, 166 (Tex. Crim. App. 2017). Furthermore, the grounds urged in

support of that objection or motion must comport with or correspond to the grounds urged

on appeal; in other words, an objection stating one legal theory may not be used to

support a different theory on appeal. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim.

App. 1995); see also, Lucio v. State, 351 S.W.3d 878, 900 (Tex. Crim. App. 2011) (stating

that the appellant failed to preserve his complaint because the objection raised at trial

failed to comport with the point of error asserted on appeal). Authority also requires the

complainant to either object each time allegedly inadmissible evidence is offered or obtain

a running objection to that evidence. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim.

App. 2003); Juarez v. State, No. 08-23-00297-CR, 2024 Tex. App. LEXIS 7020, at *11

(Tex. App.—El Paso Sept. 27, 2024, pet. ref’d) (mem. op., not designated for publication)

(same). And, if a running objection is utilized, one must describe the scope of the

objectionable evidence and ask for a running objection covering all the subsequent

evidence fitting that description. Lubbock Cty v. Reyna, No. 07-19-00330-CV, 2021 Tex.

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App. LEXIS 33, at *10 (Tex. App.—Amarillo Jan. 5, 2021, no pet.) (mem. op.). As

explained by our Court of Criminal Appeals, so long as the running objection constitutes

an objection stating the specific grounds for the ruling requested then the error is

preserved. Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991). Finally,

a running objection must be specific and is waived if the party fails to object to similar

evidence outside the scope of the running objection. Id.; see Broxton v. State, No. AP-

71,488, 2005 Tex. Crim. App. Unpub. LEXIS 393, at *18-19 (Tex. Crim. App. June 29,

2005) (not designated for publication) (stating that despite requesting a running objection

on the ground that the evidence was insufficient to show appellant committed the

offenses, “[i]t was incumbent upon appellant to alert the trial court that the apparent basis

for the insufficiency objection had changed”); Blue v. State, Nos. 02-17-00265-CR, 02-

17-00266-CR, 02-17-00267-CR, 2018 Tex. App. LEXIS 10910, at *21-23 (Tex. App.—

Fort Worth Dec. 31, 2018, pet. ref’d) (mem. op., not designated for publication) (“although

a request for a running objection is generally considered timely and preserves error, the

use of a running objection is limited and cannot encompass too broad a subject matter,

during too broad a time, or over different witnesses”).

As evinced by the record, appellant initially objected to the testimony in question

and obtained a running objection from the trial court. Yet, the substance of the initial and

running objection encompassed the State’s failure to identify the jurist as a testifying

expert. That legal theory was not urged on appeal. Rather, appellant argues that the

Justice of the Peace was 1) not qualified as an expert and 2) voiced inadmissible legal

opinions on civil and criminal matters. Despite those grounds being voiced to the trial

court, they were not accompanied by a request for a running objection. Nor were they

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urged until after the jurist answered multiple questions regarding eviction procedures and

remedies. 3 Nor did they fall within the scope of the grounds underlying appellant’s earlier

request for a running objection; that is, complaining about the failure to identify an expert

differs from complaining about the witness qualifying as an expert who utters inadmissible

legal conclusions. More importantly, the witness continued to answer questions as an

expert and voiced purportedly legal conclusions without appellant’s further objecting or

obtaining a running objection encompassing those specific grounds. So, these

circumstances prevent us from concluding that appellant preserved for review the legal

theories or points of error within issue two.

There is another reason appellant has waived our review of her complaint and that

is her failure to adequately brief this issue. See TEX. R. APP. P. 38.1(i) (setting forth

briefing requirements). First, appellant failed to cite to the purported evidence she

deemed to be legal conclusions, and she did not explain why they were legal conclusions

as opposed to mixed questions of law or fact or merely factually based opinions which

are admissible. See In re S.G., No. 07-24-00271-CV, 2025 Tex. App. LEXIS 914, at *6

(Tex. App.—Amarillo Feb. 14, 2025, no pet. h.) (mem. op.) (citing Leon-Gomez v. State,

No. 06-18-00144-CR, 2019 Tex. App. LEXIS 1876, at *7 (Tex. App.—Texarkana Mar. 13,

2019, no pet.) (mem. op., not designated for publication) (noting the appellant’s burden

to identify the specific evidence deemed inadmissible)). Second, an appellant has a duty

3 In short, these grounds of objection were not urged at the earliest opportunity, as required to

preserve a complaint for review. Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997) (stating
that an objection must be asserted at the earliest opportunity); Maden v. State, No. 07-11-0110-CR, 2013
Tex. App. LEXIS 2619, at *5 (Tex. App.—Amarillo Mar. 13, 2013, pet. ref’d) (mem. op., not designated for
publication) (same). This means that complaints based on grounds relating to the jurist’s being an
unqualified expert or voicing legal conclusions were untimely and, therefore waived.

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to accompany the issue with substantive analysis. See Herrera v. State, No. 07-19-

00368-CR, 2020 Tex. App. LEXIS 6093, at *5 (Tex. App.—Amarillo Aug. 3, 2020, no pet.)

(mem. op., not designated for publication). While appellant expressed the gatekeeping

elements for determining whether someone is qualified as an expert, she did not apply

that test to the circumstances of the case. For instance, she did not explain why someone

who has been a Justice of the Peace for 17 years and charged with presiding over eviction

proceedings is not qualified as an expert on matters of eviction.

Having overruled all issues, we affirm the trial court’s judgment.

Brian Quinn
Chief Justice

Publish.

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