Desmond Juwon Woods v. State ( 2015 )

ACCEPTED
06-15-00068-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/30/2015 4:04:24 PM
DEBBIE AUTREY
CLERK
NO. 06-15-00068-CR
FILED IN
************** 6th COURT OF APPEALS
TEXARKANA, TEXAS
10/30/2015 4:04:24 PM
IN THE COURT OF APPEALS DEBBIE AUTREY
Clerk
SIXTH APPELLATE DISTRICT OF TEXAS
TEXARKANA TEXAS
**********
DESMOND JUWON WOODS,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
**********
Appealed from the 76TH District Court
Morris County, Texas
Trial Court No. 10,976-CR
__________________________________________________________________
BRIEF OF APPELLANT
__________________________________________________________________
EBB B. MOBLEY
State Bar # 14238000
Attorney at Law
422 North Center St.-Lower Level
P. O. Box 2309
Longview, TX 75606
Telephone: (903) 757-3331
Facsimile: (903) 753-8289
ebbmob@aol.com
ATTORNEY FOR APPELLANT
NO.06-15-00068-CR
DESMOND JUWON WOODS,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
__________________________________________________________________
IDENTITY OF PARTIES AND COUNSEL
Pursuant to T.R.A.P. 38.1(a)
__________________________________________________________________
Appellant: DESMOND JUWON WOODS Hutchins State Jail
Inmate #1996056 Dallas, Texas 75241
Appellant's JERRY PRATT JR. 603 Broadnax
trial counsel: Attorney at Law Daingerfield, Texas 75638
State's trial STEVE COWAN 500 Broadnax
counsel: Morris County Attorney Daingerfield, Texas 75638
Trial Judge: DANNY WOODSON P.O. Box 399
District Judge Mt. Pleasant, Texas 75456
Appellant's EBB B. MOBLEY P. O. Box 2309
counsel on appeal: Attorney at law Longview, TX 75606
State's counsel STEVE COWAN 500 Broadnax
on appeal: Morris County Attorney Daingerfield, Texas 75638
Page 1 of 15
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-11
ISSUE RESTATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Is there sufficient evidence to sustain the judgment of conviction?
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 12-14
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Page 2 of 15
INDEX OF AUTHORITIES
Cases
Allen v. U.S., 164 U.S. 492, 502 (1896) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Aprevealo v. State, 489 S.W.2d 569, 571 (Tex.Crim.App. 1973) . . . . . . . . . . . . . . . . .10
Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987) . . . . . . . . . . . . . . . . .14
Bell v. State, 326 S.W.3d 716, 720 (Tex.App. - Dallas 2010, pet. dism’d) . . . . . . . . . 12
Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . . . . . .12
Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . . . . .14
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . 12,14
Horton v. State, 394 S.W.3d 589, 592 (Tex.App. - Dallas 2012, no pet.) . . . . . . . . .12,13
Jackson v. Virginia, 443 U.S. 307, 319 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997) . . . . . . . . . . . . . . . . . . 12,13
Tidwell v. State, No. 06-07-00046-CR, 2007 Tex.App. LEXIS 8008,
(Tex.App. - Texarkana, October 10, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012) . . . . . . . . . . . . . . . . . . . . . 14
Statutes
Penal Code §31.03(a)(b)(e)(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
All references to Texas statutes, rules, etc. are to the latest edition published by
West Publishing Company, unless otherwise indicated.
Page 3 of 15
STATEMENT OF THE CASE
This is an appeal from a conviction for theft of copper. DESMOND JUWON
WOODS was tried and convicted by a jury. The court then assessed punishment at two
(2) years confinement in a state jail. CR-108.
This case is a companion case to No. 06-15-00063-CR pending in this court
wherein DESMOND JUWON WOODS was convicted of felony criminal mischief by
a jury, and the judge assessed punishment of eight (8) years. The cases were tried
together and the sentences run concurrently.
The State is referred to as the State and the Appellant is referred to as the
defendant, the Appellant, or Woods.
ISSUE PRESENTED
Is there sufficient evidence to sustain the judgment of conviction?
Page 4 of 15
STATEMENT OF FACTS
HERSHEL STROMAN
Hershel Stroman testified for the State. Deputy Stroman was a deputy sheriff
for Morris County. 3 RR 32. Deputy Stroman testified that he took a call from Mrs.
Bullock on December 24, 2012 regarding her chicken houses and missing copper
wiring. 3 RR 34. He stated that Mrs. Bullock reported that her copper wire had been
taken from her chicken houses. He said that Mrs. Bullock had six chicken houses and
that four of them were vandalized and the copper was removed. 3 RR 35. Deputy
Stroman met Mrs. Bullock at the scene and she told him that someone had stripped
the wire out of her chicken houses. He found vandalism and evidence of theft at the
scene. 3 RR 44. He testified that there were wires where the copper was cut. He also
stated that there was yellow styrofoam insulation in the buildings. 3 RR 45. The
yellow foam covered the wires. 3 RR 46. Deputy Stroman testified that the wire was
cut in numerous different spots. 3 RR 47. Deputy Stroman testified that he searched
around the outside of the chicken houses. 3 RR 49. He stated that he followed a
foam trail through the woods. 3 RR 52-53. He testified that there was a fence line
with styrofoam insulation at the fence and several bits of styrofoam where the wire
would have been pulled through the fence. 3 RR 55. He stated that there were bits
of styrofoam stuck to a fence post. 3 RR 56. Deputy Stroman testified that the
styrofoam trail led him to 585 County Road 1231, the home of Desmond Woods. He
stated that Mr. Woods’s house is approximately one-half to three-quarters of a mile
from Mrs. Bullock’s chicken houses. He said that he followed the foam trail from
Mrs. Bullock’s farm to Mr. Woods’s house. Deputy Stroman said there was a burn
Page 5 of 15
pile located at the residence of 585 County Road 1231 with styrofoam insulation
pieces in it. 3 RR 58. He confirmed that it was the same type of styrofoam insulation
that he had been trailing and that the trail led him directly to the burn pile. 3 RR 59.
He went on to say that there were other burned areas beside the house. He testified
that there was a 3500 Chevrolet truck, license plate AD2-2120 or AU2-2120 at the
house. 3 RR 60. Deputy Stroman testified that after he walked through the woods
to the burn pile, he went Road 1231. He said that he knew that to be the residence of
Desmond Woods. He stated that he knocked on the door but no one answered. He
said he then took photos of the burn pile and backyard. 3 RR 63-64.
Deputy Stroman testified that he made efforts to determine what happened to
the copper that was stolen. He said that he went to Daingerfield Iron & Metal and
made contact with Mike and Jessica Rice, the owners. He stated that to his
knowledge there were only two places in Morris County that can buy copper,
Daingerfield Iron & Metal and John’s scrap. He said that he inquired about copper
purchases at Daingerfield Iron & Metal. 3 RR 64. Deputy Stroman testified that he
ascertained that Mr. Woods had made copper sales to Daingerfield Iron in the time
period of November and December and that Daingerfield Iron still had some of the
iron it had just bought from Mr. Woods. He said that he went to Daingerfield Iron on
December 24th. 3 RR 65. Deputy Stroman stated that the wire Daingerfield Iron had
on hand that it had recently purchased from Mr. Woods was a different gauge and
style of wire than the wire that was stolen from Mrs. Bullock’s chicken houses. 3 RR
67. He said that this wire was significant because it appeared to be burned. 3 RR 66.
Deputy Stroman testified that he then did an affidavit and requested a warrant for Mr.
Page 6 of 15
Woods’s arrest for the theft of copper. 3 RR 68. Deputy Stroman stated that he
arrested Mr. Woods on December 26th. 3 RR 69.
Deputy Stroman testified that he took Mr. Woods into custody for the copper
theft, read him his Miranda rights, but did not obtain a written statement. 3 RR 70.
He said that he interviewed Mr. Woods on the 26th in his office at the Morris County
sheriff’s office but did not obtain a recorded statement. 3 RR 71.
Deputy Stroman testified that according to the Rice’s records, Mr. Woods had
made substantial sales of copper from November 20, 2012, throughout November and
December up until the time of the burglary. He said that according to those records
several hundred pounds of copper was purchased by the scrap yard. 3 RR 74. Deputy
Stroman testified that there was a receipt, signed by Mr. Woods on November 27,
2012. The receipt included Mr. Woods’s license number and identified a vehicle as
a Chevy, model 3500, color gray, license plate number AU2-2120. The receipt
reflected that Daingerfield Iron purchased metal from Mr. Woods on November 27,
2012, including twenty-four pounds of #1 copper. Deputy Stroman testified that the
records reflected that on November 20th, Daingerfield Iron had purchased 142
pounds of #1 copper from Mr. Woods. He stated that on November 21st, Daingerfield
Iron purchased 75 pounds of #1 copper from Mr. Woods. 3 RR 7. He said that
records further reflected that on November 23rd, Daingerfield Iron purchased 24
pounds of #1 copper. On November 27th, Daingerfield Iron purchased four pounds
of copper from Mr. Woods. He said that on November 30th, Daingerfield Iron
purchased seventeen pounds from Mr. Woods. On December 12th, Daingerfield Iron
purchased twelve pounds of #1 copper from Mr. Woods. Deputy Stroman testified
that on December 14th, Daingerfield Iron purchased twenty-four pounds of copper
Page 7 of 15
from Mr. Woods. On December 17th, Daingerfield Iron purchased two pounds of
copper from Mr. Woods. On December 18th, Daingerfield Iron purchased five pounds
of copper from Mr. Woods. 3 RR 76. He confirmed that on December 20th,
Daingerfield Iron purchased ten pounds of #1 copper from Desmond Woods. 3 RR
77. On cross examination, Deputy Stroman testified that he did not determine how
much wire was taken from the chicken houses. He said that he did determine that the
house had not had chickens in it in over a month. He stated that he did not check the
date, but only went by Mrs. Bullock’s word. He said that he did not really know
when the copper could have come out. 3 RR 84. Deputy Stroman testified that he
spoke with Robin Allen and she said that she saw a tall man with a black shirt on
around the chicken houses on approximately December 19th. He said that she told
him further than she checked the houses but did not see anything. 3 RR 92. Deputy
Stroman stated that he did not know the gauge of the wire that was taken out of the
chicken houses. 3 RR 93.
On redirect examination, Deputy Stroman testified that the copper stolen was
100% copper. 3 RR 106.
During re-cross examination, Deputy Stroman testified that he was not aware
of any copper tubing having been taken out of the chicken houses and that he did not
report any copper tubing being taken out. 3 RR 107.
RANDY ACKER
Randy Acker testified for the State. He was the owner of Acker Poultry Supply
in Pittsburg, Texas. 3 RR 111. He said that he builds poultry houses and equips
poultry houses. He said that he also repairs poultry houses and gives estimates on
Page 8 of 15
damaged poultry houses when vandalized. He testified that he and one of his workers
went out to Mrs. Bullock’s farm to look at the damage that had been done to her
chicken houses. 3 RR 112. He said that Ricky Richardson took the measurements
of what repairs needed to be done. 3 RR 112-113. He said that he made the repairs
and the estimate was $23,423.05. 3 RR 113. He stated that the repairs to house
number one totaled $6,046.43. The repairs to house number three totaled $6,046.43.
The repairs to house number four totaled $6,046.43. The repairs to house number two
totaled $9,283.76. 3 RR 114. Mr. Acker testified that the total cost of the repairs was
over $27,000. 3 RR 115.
On cross examination, Mr. Acker testified that approximately 4,070 feet of wire
was taken out of each house. He said it was 12/2 Romex with ground; twelve gauge.
3 RR 116.
On re-direct examination, Mr. Acker testified that he knew how much wire he
had to replace, but did not know how much wire was taken out of the chicken houses.
3 RR 119.
MIKE RICE
Mike Rice testified for the State. He was the owner of Daingerfield Iron and
Metal scrap yard. 3 RR 122. He said that his wife, Jessica Rice, also owns and works
at the scrap yard. He said that he knows Desmond Woods and that Mr. Woods has
sold copper to his business. 3 RR 123. Mr. Rice testified to the number of pounds
of copper Mr. Woods sold to him in November and December. 3 RR 126. Mr. Rice
stated that #1 copper will be bigger than a pencil lead in wire or copper tubing. He
said this type of copper could be more than 50% copper. 3 RR 130. Mr. Rice
Page 9 of 15
testified that Mr. Woods sold him wire on December 24th, but it was not the kind of
wire that came out of the chicken houses. 3 RR 135.
ALICE BULLOCK
Alice Bullock testified for the State. Mrs. Bullock testified that she called the
sheriff’s department on December 24, 2012 because she had no power in four of her
chicken houses. 3 RR 140. She said that she had been without chickens for over a
month or more; that the last chickens went out in the middle of November. 3 RR 141.
She said that she had not had any reason to be in the chicken houses that had been
vandalized since the chickens went out. 3 RR 142. She said that the wires were
stripped and clipped then jerked off the wall and drug out the back door. 3 RR 143.
Mrs. Bullock testified that when she found out she had no power she called Mr.
Acker who sent two men out to repair it. The men found that she had no electrical
wiring and that was why she had no power. She said that she then called the sheriff.
Mrs. Bullock testified that when Deputy Stroman arrived they walked around
the chicken house to the back and found a trail of pieces of foam and followed the
foam across her property into neighboring property. 3 RR 145.
The defendant offered no testimony, rested, and closed. 3 RR 168-170.
The jury subsequently sent out notes indicating it was hung 10 for guilty, 2 for
not guilty. CR-97-100, 3 RR 198. The Court without objection gave an Allen1
charge. CR-101, 3 RR 200. The jury subsequently returned a verdict of guilty. CR-
1
Allen v. U.S., 164 U.S. 492, 502 (1896); Aprevealo v.
State, 489 S.W.2d 569, 571 (Tex.Crim.App. 1973); Tidwell v.
State, No. 06-07-00046-CR, 2007 Tex.App. LEXIS 8008, (Tex.App.-
Texarkana, October 10, 2007).
Page 10 of 15
104.
The defendant withdrew his election for sentencing by a jury. 4 RR 5-16. The
defendant called 3 witnesses and testified in his own behalf in support of probation
from the court. 4 RR 66.
In response to a defense motion for a directed verdict because of lack of proof
of theft of copper tubing as alleged in the indictment 4 RR 19, the State proposed
dismissing the theft case to seek a corrected indictment to correspond to what was
obviously unexpected testimony by all of the State witnesses that the copper sold to
Dangerfield Iron and Metal did not match the wire from the chicken house and was
not in any event copper tubing. The trial judge overruled the defense motion. 4 RR
105, 5 RR 4.
The Court assessed punishment at two years on the theft charge and eight years
on the criminal mischief case. 4 RR 110, 5 RR 5.
Page 11 of 15
ISSUE RESTATED
Is there sufficient evidence to sustain the judgment of conviction?
SUMMARY OF THE ARGUMENT
No evidence links the appellant to the copper stolen from the Bullock chicken
houses.
ARGUMENT AND AUTHORITIES
In reviewing the legal sufficiency of the evidence, this court reviews all the
evidence in the light most favorable to the verdict to determine whether any rational
jury could have found the essential elements of the offense beyond a reasonable
doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) (citing Jackson
v. Virginia, 443 U.S. 307, 319 (1979)); Bell v. State, 326 S.W.3d 716, 720 (Tex.App.
- Dallas 2010, pet. dism’d) (citing Brooks, 323 S.W.3d at 898). Legal sufficiency is
examined under the direction of the Brooks opinion, while giving deference to 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.”
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) (citing Jackson, 443 U.S.
at 318-19). “We defer to the jury’s determinations of the witnesses’ credibility and
the weight to be given their testimony because the jury is the sole judge of those
matter.” Bell, 326 S.W.3d at 720 (citing Brooks, 323 S.W.3d at 899).
Legal sufficiency of the evidence is measured by the elements of the offense
as defined by the “hypothetically correct jury charge.” Malik v. State, 953 S.W.2d
234, 240 (Tex.Crim.App. 1997); Horton v. State, 394 S.W.3d 589, 592 (Tex.App. -
Dallas 2012, no pet.). The hypothetically correct jury charge “accurately sets out the
Page 12 of 15
law, is authorized by the indictment, does not unnecessarily increase the State’s
burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried.”
Horton, 394 S.W.3d at 592 (quoting Malik, 953 S.W.2d at 240).
Based on the indictment CR-6 and the statute, Penal Code §31.03(a )(b)(e)(f),
the State had to prove that Desmond Juwon Woods, in Morris County, Texas:
1). appropriated property (copper tubing. . . of at least 50% aluminum or
copper)
2). of value less than $20,000.00
3). without the owner’s effective consent
4). with the intent to deprive the owner of the property (Alice Bullock)
Appellant challenges the legal sufficiency of the State’s circumstantial
evidence.
There is simply no evidentiary connection in the record between the copper
from the chicken houses and the copper sold to Daingerfield Iron and Metal over
the space of several weeks. Stroman’s testimony showed that the defendant sold
scrap metal on numerous occasions. 3 RR 74. But here is no testimony showing
when anyone “ stripped copper” subsequent sold metal on a given date. Indeed
Stroman testified that
STATE:
Q. Well, that’s what they buy, but tubing is not what the indictment says
was taken out of this house was copper tubing. (sic) There wasn’t any
copper tubing taken out of the chicken house, was it? That you know
of?
A. I believe it’s #1 copper.
Page 13 of 15
Q. Was there any copper tubing taken out of the chicken houses?
A. Not that I’m aware of.
Q. Okay. And you didn’t report any copper tubing being taken out.
A. No.
In opening argument the State reminded the jury of what was needed to be
proven and that circumstantial evidence cannot be argued with. 3 RR 186. The
defense pointed out the gaps and conflicts in the State’s case. 3 RR 187. The State
closed with ad hominem attacks on the defendant as a thief and indignant remarks
that the defense blamed the case on the deputy and Mrs. Bullock. 3 RR 194.
Factfinders are permitted to make reasonable inferences and both direct and
circumstantial evidence are probative to a case. It is possible for circumstantial
evidence alone to be enough to establish guilt. Hooper v. State, 214 S.W.3d 9, 14-15
(Tex.Crim.App. 2007); Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004).
The standard of review for sufficiency of the evidence is the same whether the
evidence is direct or circumstantial. Wise v. State, 364 S.W.3d 900, 903
(Tex.Crim.App. 2012). Not every fact presented must directly indicate the defendant
is guilty, but the cumulative force of the evidence can be sufficient to support a
finding of guilt. Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987).
A strong suspicion or mere probability of guilt are insufficient. Id. In
examinging the evidence, factfinders are not permitted to make conclusions based on
unsupported inferences or to guess at the possible meaning of a piece of evidence.
Hooper, 214 S.W.3d at 15-16. While such a guess may be a reasonable one, it is not
sufficient to support a finding of an element beyond a reasonable doubt because it is
not based on facts.
Argument is no substitute for evidence. The State simply did not make its case.
Page 14 of 15
PRAYER
Upon the issue presented, the judgment of the trial court should be reversed and
a judgment of acquittal rendered.
Respectfully submitted,
EBB B. MOBLEY
Attorney at Law
422 North Center St - Lower Level.
P. O. Box 2309
Longview, TX 75606
Telephone: (903) 757-3331
Facsimile: (903) 753-8289
/s/ Ebb B. Mobley
EBB B. MOBLEY
State Bar # 14238000
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I certify that this brief contains 3480 words according to the computer
program used to prepare the document.
/s/ Ebb B. Mobley
EBB B. MOBLEY
CERTIFICATE OF SERVICE
A copy of this brief was provided to Steve Cowan, Morris County District
Attorney, 500 Broadnax, Daingerfield, Texas 75638 on the 30th day of October,
2015, by e-file.
/s/ Ebb B. Mobley
EBB B. MOBLEY
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