Jonathan Lee Fehr v. State ( 2015 )

ACCEPTED
03-15-00231-CR
6570243
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/19/2015 4:30:45 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-15-00231-CR
_________________________________________________
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE COURT OF APPEALS 8/19/2015 4:30:45 PM
FOR THE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE
AUSTIN DIVISION Clerk
_________________________________________________
JONATHAN LEE FEHR §
§
v. §
§
THE STATE OF TEXAS §
_______________________________________________
APPELLANT’S BRIEF
_______________________________________________
Justin Bradford Smith
Texas Bar No. 24072348
Harrell, Stoebner, & Russell, P.C.
2106 Bird Creek Drive
Temple, Texas 76502
Phone: (254) 771-1855
FAX: (254) 771-2082
Email: justin@templelawoffice.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT REQUESTED
1
IDENTITY OF PARTIES AND COUNSEL
Appellant
Jonathan Lee Fehr
Appellant’s Counsel
Justin Bradford Smith
Harrell, Stoebner, & Russell, P.C.
2106 Bird Creek Drive
Temple, Texas 76502
Phone: (254) 771-1855
FAX: (254) 771-2082
Email: justin@templelawoffice.com
Appellant’s Trial Counsel
Richard D. Mock
Trey Brown
400 South Main
Burnet, Texas 78611
Telephone: 512-756-2931
Fax: 512-756-2933
Email: trey@mockandbrown.com
Appellee
The State of Texas
Appellee’s Trial Counsel
Anthony Dodson
Llano County Assistant District Attorney
P.O. Box 725
Llano, Texas 78639
Telephone: (325) 247-5755
Fax: (325) 247-5274
Appellee’s Appellate Counsel
Gary W. Bunyard
Llano County Assistant District Attorney
Address, Phone, and Fax Same As Above
Email: g.bunyard@co.llano.tx.us
2
TABLE OF CONTENTS
Identity of Parties and Counsel…………………………..………………………... 2
Table of Contents……………………………………….………………………..3-5
Index of Authorities…………………………………….………………………..6-8
Statement of the Case……………………………………….……………………...9
Issues Presented….……………..………....…………………….………………….9
ISSUE ONE: The evidence is legally insufficient to support Appellant’s
conviction for burglary as the principal actor because there is
no evidence that, by his own conduct, he entered Shane
Pope’s habitation………………………………………….....9
ISSUE TWO: The evidence is legally insufficient to support Appellant’s
conviction for burglary under the law of parties because there
is no evidence that Brittany Anderson entered Shane Pope’s
residence with intent to commit theft, that she in fact
committed or attempted to commit theft when she entered the
residence, or that there was an agreement with Appellant
before the burglary to commit the burglary.……..…………..9
Statement of Facts…………………………………..…………………………10-18
Summary of the Argument……………………………..……………………...18-19
ISSUE ONE: The evidence is legally insufficient to support Appellant’s
conviction for burglary as the principal actor because there is
no evidence that, by his own conduct, he entered Shane
Pope’s habitation…………………………………………...18
Argument…………………………………………………………………........20-30
Standard of Review…………………….…...…………………………………….20
Law of Burglary…………………………………………………………………...21
3
Application………………………………………………..…………………...21-30
1. Appellant did not enter Pope’s habitation…………………………...21-22
2. Red Herrings: the Carport and the Television……………………...22-30
A. The Carport is not a Habitation or Part of a Habitation….………22-29
B. Nothing shows Appellant himself participated in removing the
television from Pope’s residence, whenever that occurred……...29-30
Conclusion………………………………………………………………………...30
Summary of the Argument…………………………………………………….30-32
ISSUE TWO: The evidence is legally insufficient to support Appellant’s
conviction for burglary under the law of parties because there
is no evidence that Brittany Anderson entered Shane Pope’s
residence with intent to commit theft, that she in fact
committed or attempted to commit theft when she entered the
residence, or that there was an agreement with Appellant
before the burglary to commit the burglary.……..…………30
Argument………………………………………………………………………32-46
Standard of Review……………………………………………………………32-33
Law of Burglary and Law of Parties…………………………………………..33-35
1. Burglary……………………………………………………………..33-34
2. Law of Parties……………………………………………………….34-35
Application…………………………………………………………………….35-46
1. There is no evidence that Brittany entered the residence with intent to
commit theft, or that, in this regard, Appellant entered into an agreement
with Brittany before the burglary to commit the burglary…………..35-36
4
2. There is no evidence that Brittany attempted to commit or did commit
theft after entering Pope’s residence, that Appellant had anything to do
with any other possible burglary of Pope’s residence, or that Appellant
and Brittany entered into any agreement prior to the burglary to commit
the burglary…………………………………………………….……36-41
3. Addressing possible counterarguments from the State……………...41-46
Conclusion………………………………………………………………………...46
Prayer…………………..…………………………………………………….........46
Certificate of Compliance………………………………………………………....47
Certificate of Service……………………………………………………………...48
5
INDEX OF AUTHORITIES
United States Supreme Court:
Jackson v. Virginia, 443 U.S. 307 (1979)……………………………..20, 32-33, 45
Court of Criminal Appeals:
Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010)…………………………………………20, 32-33, 45
Clayton v. State, 235 S.W.3d 772
(Tex. Crim. App. 2007)………………………………………………...20, 33
Davila v. State, 547 S.W.2d 606
(Tex. Crim. App. 1977)……………………………………………..21-22, 34
Day v. State, 534 S.W.2d 681
(Tex. Crim. App. 1976)………………………………………23, 27-28, n. 10
Hardesty v. State, 656 S.W.2d 73
(Tex. Crim. App. 1983)…………………………………………………41-42
Hooper v. State, 214 S.W.3d 9
(Tex. Crim. App. 2007)………………………………………………...20, 33
St. Julian v. State, 874 S.W.2d 669
(Tex. Crim. App. 1994)…………………………………………………….28
Malik v. State, 953 S.W.2d 234
(Tex. Crim. App. 1997)………………………………………………...20, 33
McKnight v. State, 399 S.W.2d 552
(Tex. Crim. App. 1966)…………………………………………………….43
Morrison v. State, 608 S.W.2d 233
(Tex. Crim. App. 1980)………………………………….34, 36, 39, 41, n. 12
Nichols v. State, 479 S.W.2d 277
(Tex. Crim. App. 1972)……………………………………………...40, n. 14
6
Prather v. State, 128 Tex. Crim. 342, 81 S.W.2d 528
(1935)………………………………………………………………………42
Swain v. State, 583 S.W.2d 775
(Tex. Crim. App. 1979)…………………………………………………27-28
Urtado v. State, 605 S.W.2d 907
(Tex. Crim. App. 1980)…………………………………………35-36, 39, 41
Texas Courts of Appeals:
Darby v. State, 960 S.W.2d 370
(Tex. App.—Houston [1st Dist.] 1998, pet. ref’d)……………………..24, 26
England v. State, 727 S.W.2d 810
(Tex. App.—Austin 1987, no pet.)……………………………………..42-43
Espinoza v. State, 955 S.W.2d 108
(Tex. App.—Waco 1997, pet. ref’d)……………………………………36-37
Haley v. State, 113 S.W.3d 801
(Tex. App.—Austin 2003)………………………………………………....41
Hartsfield v. State, 305 S.W.3d 859
(Tex. App.—Texarkana 2010, pet. ref’d)………………………………20, 32
Jones v. State, 690 S.W.2d 318
(Tex. App.—Dallas 1985, pet. ref’d)……………………………...24-26, n. 8
Tennyson v. State, No. 11-92-107-CR, 1993 WL 13141619
(Tex. App. Eastland, June 24, 1993) (not designated for publication)…23-24
White v. State, 630 S.W.2d 340
(Tex. App.—Houston [1st Dist.] 1982, no pet.)………………………..24, 26
Woods v. State, 01-92-00739-CR, 1993 WL 177627
(Tex. App.—Houston [1st Dist.] May 27, 1993, pet. ref’d)
(not designated for publication)………………………………………...23-24
7
Constitutions/Statutes/Rules
Tex. Pen. Code § 7.01(a)……………………………………………………...21, 34
Tex. Pen. Code § 7.02(a)(2)……………………………………………….34-36, 41
Tex. Pen. Code § 30.01………………………………………………22-23, 25, n. 8
Tex. Pen. Code § 30.02……………………………………..21-22, 28-29, 33-34, 41
Tex. Pen. Code § 31.01(4)(B)……………………………………………………..30
Tex. Pen. Code § 31.03(b)(2)……………………………………………...29-30, 35
Other Jurisdictions
Jefferson v. State, 977 So. 2d 431
(Miss. Ct. App. 2008)…………………………………………………27, n. 9
Secondary Sources
43 A.L.R. 2d 831…………………………………………………………......27, n. 9
http://www.merriam-webster.com/dictionary/building...................................25, n. 8
http://www.merriam-webster.com/dictionary/carport.....................................25, n. 7
http://www.merriam-webster.com/dictionary/outbuilding..............................25, n. 8
8
STATEMENT OF THE CASE
Nature of the Case: This is an appeal from a judgment of conviction for
burglary of a habitation following a jury trial. (I C.R. at
63-64).
Judge/Court: Judge Evan Stubbs, 33rd District Court, Llano County.
(I C.R. at 63-64).
Pleas: Not Guilty. (I C.R. at 63) (IV R.R. at 6).
Trial Court Disposition: Following the jury’s verdict finding Appellant guilty of
burglary of a habitation, (I C.R. at 52; 63-64) (VI R.R. at
80), the jury assessed punishment of fifteen years in the
Texas Department of Criminal Justice and a fine of
$7,500, (I C.R. at 57; 63-64) (VII R.R. at 41), and the
trial court imposed the sentence. (VII R.R. at 41-42) (I
C.R. at 63-64).
ISSUES PRESENTED
ISSUE ONE: The evidence is legally insufficient to support Appellant’s
conviction for burglary as the principal actor because there is no evidence that, by
his own conduct, he entered Shane Pope’s habitation.
ISSUE TWO: The evidence is legally insufficient to support Appellant’s
conviction for burglary under the law of parties because there is no evidence that
Brittany Anderson entered Shane Pope’s residence with intent to commit theft, that
she in fact committed or attempted to commit theft when she entered the residence,
or that there was an agreement with Appellant before the burglary to commit the
burglary.
9
STATEMENT OF FACTS
When Shane Pope stopped at his house after work around five p.m. on
October 7, 2013, he was certain his home had not been burglarized: the house was
not ransacked and he did not notice his belongings missing. (IV R.R. at 20-21;
27-28) (V R.R. at 17; 26). After feeding his dogs and staying for perhaps fifteen
minutes to half an hour, he left to spend the night at his girlfriend’s house. (IV
R.R. at 21) (V R.R. at 18).
The next day, he noticed $600 missing from his bank account, and when he
returned home late at night he noticed his lawnmower and trailer were missing
from the carport where he kept them. (IV R.R. at 22-26). Upon entering his home,
which showed no signs of forced entry, he found his belongings rifled through1
and several items missing, including a television, CDs, DVDs, a stereo, guns, an
Explode boombox, three checkbooks, Bushnell and Simmons binoculars, and so
forth. (IV R.R. at 26-33). Because he was absent from his home for a specific
period between October 7th and October 8th of 2013, and because he was certain his
house had not been burglarized by the time he briefly stopped there on October 7th,
Pope was certain the burglary occurred “either between 5:30 October 7 th to 10:15
October 8th.” (IV R.R. at 21) (V R.R. at 17; 26).
1
It looked like “people were [sic] going through stuff…pictures [had been] moved and books
[had been] knocked over”. (IV R.R. at 28).
10
Pope testified the $600 check that was cashed “didn’t match the ones that
were in [his] pickup”; he kept his other checks, which were stolen during the
burglary, in his master bedroom closet. (IV R.R. at 24-25; 31). Although he
discovered this draft on October 8th, the day it was processed, the check was
indisputably cashed on October 7, 2013 at 4:03 p.m.—before his home was
burglarized. (IV R.R. at 23-25) (V R.R. at 17; 26-27) (VI R.R. at 26) (Defendant’s
Ex. 1). The reason for the date discrepancy is because all checks cashed after 2
p.m. are processed on the next business day. (VI R.R. at 26).
Pope contacted the police, telling them he knew who broke into his home,
which led to police investigating Appellant and his girlfriend (who was also Pope’s
half-sister2), Brittany Anderson, on October 9, 2013 at Appellant’s trailer and
shop.3 (IV R.R. at 19-20) (V R.R. at 33; 36-39; 49) (State’s Ex. 25-26). Brittany
answered the trailer door after Lieutenant Glenn Williams knocked, and denied
knowing anything about cashing her brother’s check and burglarizing her brother’s
house. (V R.R. at 38-39). Appellant, who came from his nearby shop, denied
knowing anything about the stolen items, and denied having a riding lawnmower
2
Asked if he and Brittany were close, Pope replied, “Not really.” (IV R.R. at 20). He did not
know the last time she visited his home and did not think she ever had, nor was he certain about
her age. (IV R.R. at 19-20) (V R.R. at 23-24). Both, however, clearly interacted since Pope saw
Appellant at his mother and father’s house, suggesting Brittany brought him there. (V R.R. at
18-19).
3
Although not clear from the testimony, perhaps Pope suspected Brittany’s involvement because
of her connection to the $600 withdrawal from his account. See (Defendant’s Ex. 1) (V R.R. at
38).
11
or knowing anything about a stolen trailer. (V R.R. at 39-40). When asked about
the 55-inch Samsung television stolen from Pope’s residence, Appellant stated his
television was on the ground outside the trailer (Lieutenant Williams
acknowledged there was a television on the ground), and his trailer was too small
to have a television that large. (V R.R. at 40-41). Appellant refused Lieutenant
Williams consent to search his trailer, but gave consent to search the rest of his
premises. (V R.R. at 42-43). As a result, Lieutenant Williams found a trailer
matching the description of Pope’s trailer that was “freshly painted, partially
painted with green paint”, and that had been “obliterated by a welding rod” on the
top of the neck on the “tongue” of the trailer. (V R.R. at 43-44) (State’s Ex. 14-
21). He noticed “fresh lawnmower-type tire tracks” on the trailer bed. (V R.R. at
44).
Lieutenant Williams took the trailer to the sheriff’s office, but returned with
Investigator Bill Boyd and Probation Officer Quinn Wilson. (V R.R. at 49). The
latter came along to “do an inspection on the residence since Brittany was on
probation at the time.” (V R.R. at 49). When the officers arrived, Appellant was
outside and Brittany was in Appellant’s trailer where she lived. (V R.R. at 169-
170). Appellant helped law enforcement gain entry to the trailer by prying its door
open with a screwdriver. (V R.R. at 172).
12
Upon entering, officers found a large flat screen television that both
Lieutenant Williams and Appellant thought was 42-inches. (V R.R. at 52; 72).
However, after conducting proper measurements, Lieutenant Williams found the
screen size to be 55-inches. (V R.R. at 72-73). Other facets of the television
distinguished it as Pope’s, such as distinctive wall mountings and its compatibility
with the remote control (which was not stolen) that came with the television. (V
R.R. at 34-37) (State’s Ex. 12 and 13). Pope also identified the television as his.
(V R.R. at 56). Appellant told Lieutenant Williams the television belonged to his
sister, and Appellant provided no explanation for why the television was there
when earlier he had said he did not have one. (V R.R. at 53). However, both
Lieutenant Williams and Appellant mistakenly had thought the television was 42-
inches. (V R.R. at 72). The only item belonging to Pope that officers removed
from Appellant’s trailer was the television.4 (V R.R. at 173).
The only witness to the alleged burglary who testified at trial was Danny
Napolez, who maintained that he road along but did not participate. (V R.R. at
110-11). According to Napolez, when he arrived at Appellant’s residence on the
day of, but before, the burglary, there was already a flat-screen television in
Appellant’s trailer that he had not seen before. (V R.R. at 112; 126-127). He
4
Apparently Investigator Boyd observed two pairs of binoculars—one Bushnell and one
Simmons—in Appellant’s trailer, but these were not shown to be the same ones alleged to have
been stolen from Pope. (IV R.R. at 31) (V R.R. at 80-82). Napolez also testified Appellant gave
him an Explode boombox months later, but this also was not shown to be the same Explode
boombox alleged to have been stolen from Pope. (IV R.R. at 27; 32) (V R.R. at 113-114).
13
asked Appellant “Where did y’all get this?”, to which Appellant replied that the
television was Brittany’s. (V R.R. at 112).
At some point, Brittany “said she got in an argument with her brother and
that she needed to go pick up a…few stuff of her’s [sic]”, which provided the
impetus for going to Pope’s house. (V R.R. at 113). Once there, Brittany went
inside and “said to load [the riding lawnmower and/or trailer] because she said it
was her’s. [sic]” (V R.R. at 111; 114-115). Appellant did so. (V R.R. at 114).
Napolez testified he and Appellant then “waited til [Brittany] came out”, (V
R.R. at 111-112), but did not testify she came out with anything. (V R.R. at 104-
160). Nor did he testify that Appellant, Brittany, and he returned to Appellant’s
residence and unloaded anything but the trailer and the lawnmower. (V R.R. at
115; 125-127; 141-145; 150-152). According to Napolez, when they returned to
Appellant’s residence, Appellant began welding and painting the trailer. (V R.R.
at 150-151). Then, Brittany, Appellant, and Napolez left for the bank, where
Napolez refused to sign a check because “[i]t was a forgery”, so Brittany signed
instead and cashed it. (V R.R. at 115-117; 126-127; 150-151). Napolez did not
know whose check was being cashed, did not see the name on the check, and was
not told that it came from the alleged burglary of Pope’s house. (V R.R. at 117-
118).
14
Napolez’s ability to put together a detailed timeline was in doubt (perhaps
because of his drug use), but he was unequivocal about the overall sequence: when
he arrived at Appellant’s residence a flat-screen television was already there, after
that the three traveled to Pope’s residence to pick up the lawnmower and trailer,
after that they returned to Appellant’s residence and dropped these items off, and
after that they went to the bank. (V R.R. at 112-115; 125-127; 141-145; 147-151).
Napolez also denied signing a receipt evidencing him selling Appellant the
lawnmower (V R.R. at 118-120; 139-141) (Defendant’s Ex. 2).
On October 8, 2013, Glenn Jolly purchased the lawnmower from Appellant
for $350, and Appellant claimed he had purchased it for $400 from someone who
needed money. (V R.R. at 94-97; 99) (Defendant’s Ex. 2). When Jolly bought the
lawnmower sometime after 1:30 p.m. or 2 p.m., Bobby Wisdom and Buddy Jarrett
were present but he did not notice if “a Spanish guy” was there. (V R.R. at 102-
103).
Appellant called Bobby Wisdom in his defense, who testified that he spent
the better part of October 7, 2013 working with Appellant to change a transmission
for someone named “Buddy”.5 (V R.R. at 178-180). Wisdom did not see
Appellant’s truck, but did affirm Appellant had to ask Buddy to get Appellant
5
This would be Buddy Jarrett, an alibi witness under the State’s subpoena whose failure to
appear at trial was the subject of Appellant’s motion for new trial. (V R.R. at 6-11; 222-234) (VI
R.R. at 7; 17-18) (VIII R.R. at 4-18) (Defendant’s Ex. 8).
15
some water because Appellant did not have a ride. (V R.R. at 181). Wisdom spent
all day from 9 a.m. to 4:30 p.m. in Appellant’s shop, only stepping out in front. (V
R.R. at 197-198). Just after Wisdom left and as he was walking down the road,
Appellant’s father drove up. (V R.R. at 182). When Wisdom left, Pope’s trailer
and lawnmower were not at Appellant’s property. (V R.R. at 183).
Later that night, around 8:30 or 8:45 p.m., Wisdom received a call from
Brittany from which he received the impression that he needed to come help
unload a television. (V R.R. at 182-183). When he arrived, the television was
already unloaded and was in the trailer on the couch, while Appellant was still
working in his shop. (V R.R. at 183-184). At that time, there was a John Deere
lawnmower and trailer at Appellant’s shop. (V R.R. at 184). Wisdom saw
Napolez sitting on the trailer painting the “top rail of the hang line”. (V R.R. at
184; 186; 199-200). Wisdom left but returned the next day and was present when
the lawnmower was sold. (V R.R. at 184-185; 187). The State contested
Wisdom’s testimony vigorously (e.g., V R.R. at 189; 191-195; 197-198), and
according to the hearing on Appellant’s motion for new trial, the jury found him a
“totally unbelievable witness.” (VIII R.R. at 9-10).
Appellant’s father testified on his behalf, saying he went to Appellant’s
property on October 7, 2013, sometime around 4:30 or 5 p.m., and left between
6:00 and 7:00 p.m. (V R.R. at 208). Appellant was “working on a white Ford car
16
and another guy” was there whose name Appellant’s father believed was Buddy
Jarrett. (V R.R. at 209). He did not see Appellant’s vehicle at Appellant’s shop,
nor did he see “anything that wasn’t [his] out there.” (V R.R. at 209-210). When
Appellant’s father left, he saw Brittany and Danny Napolez in Appellant’s truck at
red light. (V R.R. at 211). He could not, however, “tell if they were pulling
anything or if the truck had anything in it or not.” (V R.R. at 212).
In the State’s rebuttal, a bank teller, Brook Johanson, testified that she saw
Appellant in his truck while Brittany cashed the $600 check. (VI R.R. at 19-20;
22; 25-27; 30; 34-35). According to Johanson, the writing on the check resembled
Appellant’s “scribbling handwriting”. (VI R.R. at 29-30). On cross-examination,
however, she admitted that a specimen of Appellant’s handwriting did not match
the forged check. (VI R.R. at 39) (State’s Ex. 30) (Defendant’s Ex. 7).
During the trial but outside the presence of the jury, the Court commented
that “[c]learly, if there was a burglary, there was a single burglary based on the
evidence that’s been presented”, and observed that the Court did not “recall
hearing any direct testimony that he [Appellant] entered the habitation”. (V R.R.
at 166; 221).6 As a result, the Court’s charge authorized the jury to convict
Appellant, both as the primary actor and as a party, of a single burglary committed
6
During closing arguments the prosecutor informed the jury of his tardy realization that, due to
Appellant’s presence on October 7, 2013 when the forged check was passed, “Mr. Pope’s house
had been burglarized more than once.” (VI R.R. at 76). This does not conflict, however, with
the trial judge’s opinion that there was “a single burglary” shown by the evidence. See note 12,
infra.
17
in either of two ways. (I C.R. at 46-51). First, by intentionally or knowingly
entering Pope’s house without his effective consent, and therein attempting to
commit or committing theft of Pope’s television. (I C.R. at 49). Second, by
entering Pope’s house without his effective consent and with intent to commit
theft. (I C.R. at 49). The jury returned a guilty verdict, and after a punishment
hearing, assessed his punishment at fifteen years with a $7,500 fine. (I C.R. at 52;
57). The Court sentenced Appellant in accordance with the jury’s verdict. (VII
R.R. at 41-42).
SUMMARY OF THE ARGUMENT
ISSUE ONE: The evidence is legally insufficient to support Appellant’s
conviction for burglary as the principal actor because there is no evidence that, by
his own conduct, he entered Shane Pope’s habitation.
The only evidence in the record of a potential burglary comes from Danny
Napolez, who, rather than testifying that Appellant entered Pope’s habitation,
testified that Appellant waited in the car until Brittany returned from entering the
habitation. As such, it is impossible for Appellant to have committed burglary by
his own conduct as the principal actor, because there is no evidence that he himself
entered Pope’s habitation, and entry is an essential element of burglary. This is
true of both subsections of the burglary statute under which the State sought a
conviction.
18
Stealing the lawnmower and trailer from Pope’s carport could not support
the burglary conviction because a carport is not a “habitation”, nor (so far as the
facts disclose) a structure “appurtenant to or connected with” a habitation; it is not
even an enclosed structure that could constitute a building. No published opinion
in Texas holds that a carport is part of a habitation, and the two unpublished
opinions that do so hold are based on opinions with dissimilar facts and faulty
reasoning. Yet, even if we accept the definition of “appurtenant” from one case,
the facts here do not show that the carport meets that definition. Instead, this Court
should following the implications of two Court of Criminal Appeals cases and
conclude that a carport, at least on these facts, is not a habitation or a part of one.
If the Court chooses instead to hold that the carport was part of Pope’s habitation,
then nothing shows Appellant entered the carport to hook up the trailer on which
the lawnmower sat.
Neither is the fact that the television was found in Appellant’s residence
sufficient to support Appellant’s conviction based on his own conduct: if the
television was removed during the incident described by Napolez (and nothing
shows that it was), Appellant did not enter Pope’s residence, but if, on the other
hand, the television was removed at another time, nothing shows Appellant had
anything to do with this other burglary.
As such, Appellant’s conviction cannot stand based on his own conduct.
19
ARGUMENT
Standard of Review
In evaluating legal sufficiency, the appellate court reviews all the evidence
in the light most favorable to the trial court’s judgment 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010,
pet. ref’d). The reviewing court examines legal sufficiency under the direction of
the Brooks opinion, while giving deference to the responsibility of the jury “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); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). Sufficiency of the evidence is measured
by the elements of the offense as defined by a hypothetically correct jury charge.
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge “sets out the 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.” Id.
20
Law of Burglary
Based on the offense as charged in the indictment, a person commits
burglary “if, without the effective consent of the owner, the person:
(1) enters a habitation…with intent to commit a…theft; or
[…]
(3) enters a…habitation and commits or attempts to commit a…theft”. Tex.
Pen. Code § 30.02(a)(1)(3); (I C.R. at 6-7).
For the first method, the mens rea—intent—is supplied by the statute itself,
while for the second, the culpable mental state is intentionally or knowingly.
Davila v. State, 547 S.W.2d 606, 608, n.2 (Tex. Crim. App. 1977).
To “enter” means “to intrude: (1) any part of the body; or (2) any physical
object connected with the body.” Tex. Pen. Code § 30.02(b)(1)(2).
“A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct”. Tex. Pen. Code § 7.01(a).
Application
1. Appellant did not enter Pope’s habitation
Although the judge’s view of the evidence is by no means controlling, here
it is correct: the evidence at trial disclosed a single alleged burglary during which
Appellant did not enter Pope’s habitation. (V R.R. at 166; 221). Danny Napolez is
the only witness who testified as to what happened during the alleged burglary, and
21
his testimony is pithy. According to him, Brittany “said to grab the lawnmower
because she said the lawnmower was her’s [sic], so Jonathan backed up to it,
loaded the lawnmower, then got in the truck and we waited til she came out.” (V
R.R. at 111-112) (emphasis added). Because this is the only evidence given of the
burglary itself, it shows that without a doubt Appellant did not enter Pope’s
residence. As a result, the evidence is legally insufficient to show that Appellant,
by his own conduct, committed burglary because the record is devoid of evidence
on an essential element of the offense. Tex. Pen. Code § 30.02(a)(1)(3); Davila,
547 S.W.2d at 608 (listing elements of burglary under 30.01(a)(3)); (I C.R. at 6-7;
49). This is true under either of ways the burglary was charged to the jury:
entering with intent to commit theft, and entering and attempting to commit or
committing theft, both require entry, and no evidence shows Appellant entered
Pope’s residence. Tex. Pen. Code § 30.02(a)(1)(3) and Tex. Pen. Code §
30.02(b)(1)(2).
2. Red Herrings: the Carport and the Television
A. The Carport is not a Habitation or Part of a Habitation
In reaching this conclusion, the Court must avoid two red herrings. First, it
is immaterial that Appellant, according to Napolez, stole the trailer and
lawnmower. (V R.R. at 111; 114-115). This is because, according to Pope, the
trailer and lawnmower were under his carport, (IV R.R. at 26), but an open carport
22
is not a “habitation” (because it is not adapted for the overnight accommodation of
persons), Tex. Pen. Code § 30.01(1), nor even an “enclosed structure” that could
qualify as a building that, under 30.01(2), could be burgled. Day v. State, 534
S.W.2d 681, 685 (Tex. Crim. App. 1976) (“enclosed structure” under Texas Penal
Code Section 30.01(2) does not “include…open carports with walls on both sides
but none on the ends”).
Nor is there any evidence that Pope’s carport was a “structure appurtenant to
or connected with” his habitation. Tex. Pen. Code § 30.01(1)(B). Pope testified
that “[t]o the south side of my house I have a carport and a little shed and I keep it
underneath that carport and you can see it as soon as you pull up.” (IV R.R. at 26).
This brief description does not tell us how close or far the carport is from Pope’s
habitation, nor whether it is attached or unattached, appurtenant or not, connected
with the habitation or not.
Moreover, no Texas court has held in a published opinion that a carport is
“appurtenant to or connected with” a habitation; rather, only two unpublished
opinions have so held. Tennyson v. State, No. 11-92-107-CR, 1993 WL 13141619
at *1-2 (Tex. App. Eastland, June 24, 1993) (not designated for publication)
(concluding that a carport attached to a house was a structure connected with the
house for purposes of Texas Penal Code 30.01(1)(B)); Woods v. State, 01-92-
00739-CR, 1993 WL 177627, at *3 (Tex. App.—Houston [1st Dist.] May 27,
23
1993, pet. ref’d) (not designated for publication) (same); cf. Jones v. State, 690
S.W.2d 318, 319 (Tex. App.—Dallas 1985, pet. ref’d) (reaching same conclusion
regarding unattached garage), Darby v. State, 960 S.W.2d 370, 371-372 (Tex.
App.—Houston [1st Dist.] 1998, pet. ref’d) (same), and White v. State, 630 S.W.2d
340 (Tex. App.—Houston [1st Dist.] 1982, no pet.) (attached garage was a
structure appurtenant to and connected to the victim’s house). But Tennyson
followed Darby and Jones, whose reasoning and facts are inapplicable here, and
Woods followed White, whose reasoning and facts are also inapplicable here.
In Darby, the unattached garage was “approximately nine feet from [the
victim’s] house and [was] fully enclosed.” Darby, 960 S.W.2d at 371. The victim
stored “all items which she [could not] store in her house in her garage” and
“consider[ed] her garage to be part of her home.” Id. “In a storage room in the
back of the garage, there [was] a bed in which [the victim’s] grandson slept for six
months.” Id. The Court concluded that the victim’s “unattached garage, which
was used to store items she could not store in her house, was ‘appurtenant to’ her
house as the term is defined in Jones [v. State, 690 S.W.3d 318, 319 (Tex. App.—
Dallas 1985, pet. ref’d)].” Darby, 960 S.W.2d at 372. Clearly Pope’s sparse
description of his carport does not include the same level of pertinent details as in
Darby: we do not know how far the carport is from his house, though the carport
24
is certainly not enclosed;7 Pope did not testify that he considered the carport a part
of his home; he did not testify that he stored all items he could not store in his
house under his carport; and nothing shows the carport was outfitted at all for
sleeping.
As for Jones, that case cherry-picked from the definition of “appurtenant” in
Black’s Law Dictionary. The Dallas court chose, without explaining why, the part
of the definition that did not require attachment or physical connection, in favor of
the part that did so require. Jones, 690 S.W.2d at 319. But neither the language of
the statute nor the definition of “appurtenant” cited by Jones compel the
conclusion that an unattached structure—or at least a carport—is appurtenant to or
connected with a habitation. Tex. Pen. Code § 30.01(1)(B).8 In any event, as a
result the Jones court concluded a structure is “appurtenant to” a habitation if it is
“necessarily connected with the use and enjoyment of the house, and it is
secondary or incident to the principal building, the house.” Id. (internal citations
omitted). But even under this definition there is no evidence that Appellant’s
7
See http://www.merriam-webster.com/dictionary/carport: a carport is “an open-sided
automobile shelter by the side of a building”. Accessed August 18, 2015.
8
As “further support” of its holding, the Jones court noted that “several commentators” include
“garages and other outbuildings” under Section 30.01(1)(B). Jones, 690 S.W. at 319-320.
However, a carport is not an outbuilding, for an “outbuilding” is “a building (as a stable or a
woodshed) separate from but accessory to a main house”, http://www.merriam-
webster.com/dictionary/outbuilding (accessed August 18, 2015), and a “building” is “a usually
roofed and walled structure built for permanent use (as for a dwelling)”. http://www.merriam-
webster.com/dictionary/building, accessed August 18, 2015. But a carport is “open-sided” (see
footnote 5, supra), not walled, nor do we have enough facts here to know whether Pope’s carport
might, because of unorthodox design, meet the definition of “outbuilding”. (IV R.R. at 111;
114).
25
carport was “necessarily connected with the use and enjoyment” of his house;
because he stored his lawnmower and trailer under the carport, it rather seems as if
his carport is necessarily connected with the use and enjoyment of his yard.
This is not mere facetiousness, for it is quite true that the record lacks
evidence disclosing how the carport is necessarily connected with the use and
enjoyment of Pope’s house. To see this, we must come full circle. If we are going
to accept Jones’ definition of “appurtenant”, then Darby shows us what it means
for an unattached structure to be “necessarily connected with the use and
enjoyment” of the house: storage therein of items that will not fit in the house; use
of the garage (or, more broadly, structure) as sleeping quarters; perception of the
unattached garage (structure) by the victim as part of his home; proximity to the
house; and full enclosure. Darby, 960 S.W.2d at 371-372. None of these facts
obtain here, unless we assume that the carport was quite close to the house—which
would be mere speculation—or that the carport was fully enclosed, which would
be unusual, in addition to also being mere speculation. (IV R.R. at 26).
White is inapplicable because it considered whether an attached garage
without a door could be considered part of a habitation, White, 630 S.W.2d at 341-
342, and these are not the facts here. Moreover, White’s holding is based on the
conclusion that burglary of a building requires an enclosed structure, whereas
burglary of a habitation does not. Id. at 642. Yet even if true, this does not resolve
26
the instant question because the fact that a structure is unenclosed may
nevertheless be relevant in determining whether it is part of a habitation. See
Swain v. State, 583 S.W.2d 775, 777 (Tex. Crim. App. 1979) (no indication the
legislature intended “to expand the concept of burglary of a habitation to include
an entry upon an unenclosed and unsecured stairway attached to a residence”)
(comparing Day v. State, 534 S.W.2d 681 (Tex. Crim. App. 1976)) and Jefferson v.
State, 977 So. 2d 431, 436-437 (Miss. Ct. App. 2008) (“open, freestanding
structure” not a dwelling house or part of a dwelling house under Mississippi
statute defining “dwelling house” as “[e]very building joined to, immediately
connected with, or being a part of the dwelling house”).
Rather, this Court should follow the conclusions of Swain (unenclosed and
unsecured stairway attached to a residence is not a part of the habitation that can be
burgled) and Day (carport is not a building that can be burgled), and hold that a
carport cannot, at least on these facts, be a habitation or part of a habitation under
Texas burglary law.9 Swain, 583 S.W.2d at 777; Day, 534 S.W.2d at 685. In this
connection, it is significant that when the Court of Criminal Appeals decided in
Swain that an unenclosed and unsecured stairway attached to a residence did not
fall under the purview of the burglary of a habitation statute, the Court supported
9
It is also noteworthy that a collection of cases in the American Law Reports on the topic of
“Burglary: outbuildings or the like as part of the ‘dwelling house’” contains only one case, the
Jefferson case from Mississippi cited above, that even considers whether a carport can be part of
a habitation (or its equivalent term). 43 A.L.R. 2d 831.
27
its conclusion by citing Day, which included a carport amongst those structures not
falling under the purview of the burglary of a building statute. Swain, 583 S.W.2d
at 777; Day, 534 S.W.2d at 685;10 Tex. Pen. Code § 30.02(a)(1)(3). The inference
the Court made is clearly that an unenclosed and unsecured stairway, even if
attached to a residence, is not a part of a residence because such a stairway is like
those structures—including a carport—which are not otherwise protected by the
burglary statute. Day, 534 S.W.2d at 685; see also St. Julian v. State, 874 S.W.2d
669, 670 (Tex. Crim. App. 1994) (in burglary of a building case, citing Day and
thus reiterating that a carport is not a building protected by the burglary statute). If
such a stairway is not part of a residence because it is like a carport, then, a
fortiori, the carport itself will not be part of a residence.
Therefore, stealing the lawnmower and the trailer makes Appellant a thief,
but not a burglar.
Still, even if the Court disagrees and holds that the carport is a structure
“appurtenant to or connected with” Pope’s habitation, the record does not show
that Appellant actually entered the carport when he loaded the lawnmower and
trailer. (IV R.R. at 26) (V R.R. at 114); Tex. Pen. Code § 30.02(b)(1)(2) (“enter”
means “to intrude: (1) any part of the body; or (2) any physical object connected
10
The complete list of examples the Court gives include “open air stages with three walls and a
roof, or open carports with walls on both sides but none on the ends, or even four-columned
pavilions with no walls”. Day, 534 S.W.2d at 685.
28
with the body.”). While part of the trailer and lawnmower must have been under
the carport, nothing shows Appellant must have entered the carport to hook them
up to his truck. (V R.R. at 114). It is possible the trailer protruded beyond the
limits of the carport so that Appellant need not have entered the carport to steal the
trailer (on which the lawnmower sat). (IV R.R. at 26). At any rate, to conclude
anything more requires speculation.
B. Nothing shows Appellant himself participated in removing the
television from Pope’s residence, whenever that occurred
The second red herring is that it is immaterial that Pope’s television was
found in Appellant’s trailer because no evidence shows that, when the television
was removed from Pope’s residence (whenever that was), Appellant had anything
to do with it, much less entered the residence to remove it. (V R.R. at 52; 56; 34-
37; 72-73). If the television was removed when Brittany emerged from Pope’s
residence after Appellant loaded the trailer and lawnmower, then clearly Appellant
did not enter the residence and thus could not be convicted of burglary based on his
own conduct. (V R.R. at 111-112).11 If, instead, the television was removed at
another time, there is no evidence that Appellant had anything to do with that
burglary. At best, the television’s presence in his trailer could make Appellant
guilty of theft under Section 31.03(b)(2) of the Texas Penal Code for appropriating
11
As discussed in Issue Two, however, there is no evidence that Brittany emerged from the
residence with anything at all.
29
stolen property, if he knew the property was stolen by another when he
appropriated it. Tex. Pen. Code § 31.03(b)(2); Tex. Pen. Code § 31.01(4)(B). But
that, of course, is not the same offense as burglary, and Appellant need not enter
any habitation, except his own, to commit it.
Conclusion
No evidence shows Appellant entered Pope’s habitation, and nothing shows
Appellant was even present or entered the habitation when the television was
stolen, whenever that was. As such, Appellant’s conviction cannot stand insofar as
it was based on his own conduct as a primary actor.
SUMMARY OF THE ARGUMENT
ISSUE TWO: The evidence is legally insufficient to support Appellant’s
conviction for burglary under the law of parties because there is no evidence that
Brittany Anderson entered Shane Pope’s residence with intent to commit theft, that
she in fact committed or attempted to commit theft when she entered the residence,
or that there was an agreement with Appellant before the burglary to commit the
burglary.
The only direct evidence of Brittany’s possible intent when she entered
Pope’s residence comes from Napolez, who testified Brittany was going to retrieve
some of her things from her brother following an argument she had with him. This
30
alone is not enough to show that she entered Pope’s residence with intent to
commit theft because one cannot purloin one’s own possessions.
Nothing shows Brittany committed or attempted to commit theft after
entering Pope’s residence. Significantly, Napolez did not testify that Brittany
emerged from Pope’s residence with anything: nothing shows she burgled Pope’s
residence at that time. And, according to Napolez, after the burglary he, Brittany,
and Appellant returned to Appellant’s residence to unload the trailer and the
lawnmower—nothing else. In fact, the television was already at Appellant’s
residence before the alleged burglary described by Napolez occurred. If there was
another burglary, nothing connects Appellant to it. Nothing shows Brittany
attempted to burgle Pope’s residence but failed.
Should the Court disagree that the evidence does not show Brittany emerged
from the residence with anything, remember that the State still must show an
agreement before the burglary in which Appellant intended to promote or assist the
burglary: acts after the fact (such as being present at a forgery) do not show the
agreement required for a conviction under the law of parties.
Some potential counterarguments from the State are worth addressing. The
fact that the television was found in Appellant’s residence does not give rise by
itself to an inference of Appellant’s guilt, because both Brittany and Appellant
resided there. Nothing shows Appellant exercised a “conscious assertion of right
31
to the property” as is also required. Any other suspicious or bad acts evidenced in
the record, such pawning the lawnmower or welding the trailer or even being
present during the forgery, may show Appellant is complicit in other crimes, but
not burglary. The fact that Brittany and Pope were not close siblings might cast
doubt on the veracity of her claim to be retrieving her own things following an
argument with Pope (or not—if they are not close they might be prone to argue),
but this does not show Appellant was unjustified in believing Brittany’s reason for
going to Pope’s house nor that he knew that reason was a pretext (if it was).
Finally, that Appellant’s alibi witness was apparently not believed by the jury does
not alter the fact that the rest of the State’s evidence must itself be legally sufficient
to sustain Appellant’s conviction, and the evidence is not.
ARGUMENT
Standard of Review
In evaluating legal sufficiency, the appellate court reviews all the evidence
in the light most favorable to the trial court’s judgment 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, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010,
pet. ref’d). The reviewing court examines legal sufficiency under the direction of
32
the Brooks opinion, while giving deference to the responsibility of the jury “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); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). Sufficiency of the evidence is measured
by the elements of the offense as defined by a hypothetically correct jury charge.
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge “sets out the 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.” Id.
Law of Burglary and Law of Parties
1. Burglary
Based on the offense as charged in the indictment, a person commits
burglary “if, without the effective consent of the owner, the person:
(1) enters a habitation…with intent to commit a…theft; or
[…]
(3) enters a…habitation and commits or attempts to commit a…theft”. Tex.
Pen. Code § 30.02(a)(1)(3); (I C.R. at 6-7).
33
For the first method, the mens rea—intent—is supplied by the statute itself,
while for the second, the culpable mental state is intentionally or knowingly.
Davila v. State, 547 S.W.2d 606, 608, n.2 (Tex. Crim. App. 1977).
To “enter” means “to intrude: (1) any part of the body; or (2) any physical
object connected with the body.” Tex. Pen. Code § 30.02(b)(1)(2).
2. Law of Parties
“A person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both.” Tex. Pen. Code § 7.01(a). “A person is
criminally responsible for an offense committed by the conduct of another if:
[…]
(2) acting with intent to promote or assist the commission of the offense, he
solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense”. Tex. Pen. Code § 7.02(a)(2).
“In determining whether an individual is a party to an offense and bears
criminal responsibility therefor, the court may look to events before, during, and
after the commission of the offense.” Morrison v. State, 608 S.W.2d 233, 234
(Tex. Crim. App. 1980). However, “[a]cts committed after the [offense] was
completed could not make appellant a party to the offense…[t]he circumstances
must prove some culpable act before or during the [offense].” Id. at 235. There
34
must be, “in addition to physical presence, encouragement by words, or agreement
to the commission of the offense. Such agreement must be prior to or
contemporaneous with the criminal event.” Urtado v. State, 605 S.W.2d 907, 911
(Tex. Crim. App. 1980).
Application
1. There is no evidence that Brittany entered the residence with intent
to commit theft, or that, in this regard, Appellant entered into an
agreement with Brittany before the burglary to commit the burglary
Here, only Napolez testified to the events of the alleged burglary. He
testified that the impetus for going over to Pope’s residence was that Brittany “said
she got in an argument with her brother and that she needed to go pick up a few
stuff – a few stuff of her’s [sic].” (V R.R. at 113). This is the only evidence of
Brittany’s intent before the alleged burglary.
One way the State committed itself to proving burglary was through entry
into Pope’s habitation with intent to commit theft. (I C.R. at 49). Of course, a
person cannot steal his own property, Tex. Pen. Code § 31.03(a) (“A person
commits an offense if he unlawfully appropriates property with intent to deprive
the owner of property”), so Appellant could not have “inten[ded] to promote or
assist the commission of” a non-crime. Tex. Pen. Code § 7.02(a)(2). Since we
have no other evidence of Brittany’s intent before the alleged burglary, we cannot
conclude Appellant is guilty of burglary based on soliciting, encouraging,
35
directing, aiding, or attempting to aid Brittany in the commission of the offense. 12
Tex. Pen. Code § 7.02(a)(2). The evidence shows Appellant committing no
culpable act before the alleged offense, and there is no evidence of any agreement
prior to the alleged offense, in words or otherwise, to commit burglary. Morrison,
608 S.W.2d at 235; Urtado, 605 S.W.2d at 911. Rather, there is evidence of an
agreement to go over to Pope’s house so Brittany could retrieve her own
possessions: a trespass, to be sure, but not a burglary.
2. There is no evidence that Brittany attempted to commit or did
commit theft after entering Pope’s residence, that Appellant had
anything to do with any other possible burglary of Pope’s residence,
or that Appellant and Brittany entered into any agreement prior to
the burglary to commit the burglary
Now, the other way the State sought to prove Appellant guilty of burglary
was by showing, in essence, that Appellant bore some criminal responsibility for
Brittany committing or attempting to commit theft after entering Pope’s residence.
(I C.R. at 49). In contrast to the previous way of proving burglary, where the State
must establish the burglar “intended to commit the felony or theft at the time of
entry”, Espinoza v. State, 955 S.W.2d 108, 111 (Tex. App.—Waco 1997, pet.
12
As will be explained shortly, nothing shows Brittany in fact took anything, or even tried to
take anything, after she entered the residence. However, even if there were evidence that she had
done either of those culpable acts, it would not show that Appellant knew her stated reason for
going over to the residence was a pretext, nor would driving them away from the scene of the
crime make Appellant a party to burglary. Morrison, 608 S.W.2d at 235 (“[a]cts committed after
the [offense] was completed could not make appellant a party to the offense”). Furthermore, still
lacking would be any evidence of a prior or contemporaneous agreement to commit burglary.
Urtado, 605 S.W.2d at 911 (“agreement must be prior to or contemporaneous with the criminal
event”).
36
ref’d), here the State “must simply prove that the [burglar] intentionally or
knowingly entered the building or habitation without the owner’s consent and
while inside committed or attempted to commit a felony or theft.” Id. However,
there is no evidence here that Brittany committed theft, or attempted to commit
theft, after she entered Pope’s residence.
First, Napolez does not testify that Brittany emerged from Pope’s residence
with anything at all. (V R.R. at 111-112). All he says is “we waited til she came
out”, (V R.R. at 112), but does not testify she came out with anything. She could
not have stolen the television during the alleged burglary because Napolez testified
the television was already there when he arrived at Appellant’s trailer—before the
alleged burglary occurred. (V R.R. at 112). After Brittany returned to Appellant’s
truck, the three went back to Appellant’s shop to unload the trailer and the
lawnmower—but nothing else. (V R.R. at 142-143). Then, according to Napolez,
the three went to the bank where Brittany passed the forged check—but this event
could not have occurred on the same day as the alleged burglary because it is
indisputable that the forged check was passed on October 7, 2013 at 4:03 p.m.
before Pope arrived home from work and before the alleged burglary occurred on
October 8, 2013. (IV R.R. at 21) (V R.R. at 26; 112-115; 125-127; 141-145; 147-
151) (Defendant’s Ex. 1).
37
Hence, if the State argues that Brittany did not steal the television (or
anything else) while Appellant hooked up the trailer and lawnmower, but did steal
the checkbooks, it simply is not possible: the day the trailer and lawnmower were
stolen, which is the same day Brittany entered Pope’s house, is the day after the
check (which must have come from Pope’s residence) was passed—but Napolez
was clear that passing the check occurred on the same day as, but after, unloading
the trailer and the lawnmower at Appellant’s residence. (IV R.R. at 21; 25) (V R.R.
at 17; 26; 112-115; 125-127; 141-145; 147-151) (Defendant’s Ex. 1). The
checkbooks could have been stolen when the lawnmower and trailer were stolen, if
they were all stolen on October 8, 2013—but this an impossibility, since the check
was passed the day before. (Defendant’s Ex. 1). On the other hand, the
checkbooks, lawnmower, and trailer could have been stolen at the same time on
October 7, 2013—but this is also an impossibility, because Pope testified clearly
that on October 7, 2013, when he arrived home from work his house had not been
burglarized; that he had the timeframe during which the burglary occurred pinned
down precisely; and that when he arrived home on October 8, 2013, he “noticed
[his] lawnmower and trailer were missing right off the bat”, suggesting that if these
had been stolen (along with the checkbooks) on October 7, 2013, before he arrived
home, he would not have overlooked their absence. (IV R.R. at 17; 21-26).
38
If the State retreats to the castle keep and says there were two burglaries,13
we might not be inclined to quibble except on one crucial point: that nothing
shows that Appellant had anything to do with any other burglary of Pope’s
residence. Even if Appellant truly was present when Brittany passed the forged
check, as Johanson testified, this would not show that Appellant burgled Pope’s
house himself, or that he was criminally responsible for Brittany doing so—we do
we not know the facts of this other burglary at all, and acts committed after an
offense do not make one a party to that offense. Morrison, 608 S.W.2d at 235
(“[a]cts committed after the [offense] was completed could not make appellant a
party to the offense”); Urtado, 605 S.W.2d at 911 (“agreement must be prior to or
contemporaneous with the criminal event”) (VI R.R. at 30).
In short, Napolez did not testify Brittany stole anything at all from the
residence, nor that she attempted to do so, nor that she entered the residence
intending to do so. If there was another burglary of Pope’s residence, we know
nothing about whether Appellant had anything to do with it.
13
During closing arguments the prosecutor lamented that “unfortunately, [he] didn’t’
realize...until yesterday” that, due to Appellant’s alleged presence on October 7, 2013 when the
forged check was passed, “Mr. Pope’s house had been burglarized more than once.” (VI R.R. at
76). Note that the State’s view here does not conflict with that of the trial court that “[c]learly, if
there was a burglary, there was a single burglary based on the evidence that’s been presented”.
(V R.R. at 221). There was evidence of only one burglary that, if proven, would inculpate
Appellant; but, of course, there could have been multiple burglaries that occurred that had
nothing to do with Appellant.
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Second, Napolez is unequivocal that the television was already there when
he arrived at Appellant’s trailer before the events described above occurred. (V
R.R. at 112; 126-127). Hence, while the television found in Appellant’s residence
undoubtedly came from Pope’s residence, nothing in the record shows Appellant
had anything to do with the television making its way to his place. And because,
despite the State’s most diligent efforts, (e.g., V R.R. at 112-114), none of the other
property stolen from Pope’s residence was ever connected to Appellant or found in
his trailer, there is simply nothing to show that when Pope’s house was burgled and
the television removed, Appellant had anything to do with it.14
Third, there is no evidence that, even if Brittany did not in fact commit theft
during the events described by Napolez, she attempted to do so. Nothing in the
record suggests, for example, that she tried and failed (“Man, this is too heavy to
carry out…”), that she was interrupted in the middle of thieving property (“It’s the
cops—run!”), that she could not find what she was looking for (“Let’s go home,
guys. It’s not here.”), and so forth.
14
While Napolez testified he received an Explode boombox from Appellant months after the
burglary, nothing shows this was the same Explode boombox alleged to have been stolen from
Appellant’s residence—only speculation could conclude otherwise. (IV R.R. at 27; 32) (V R.R.
at 113-114). Similarly, the two pairs of binoculars—one Bushnell and one Simmons—that
Investigator Boyd apparently observed in Appellant’s trailer were not shown to be the same ones
alleged to have been stolen from Pope. (IV R.R. at 31) (V R.R. at 80-82). See Nichols v. State,
479 S.W.2d 277, 278 (Tex. Crim. App. 1972) (“It is not sufficient identification to show that
goods were of the same brand as those that were stolen.”)
40
Fourth, the State still has to show, not merely that Appellant committed
some act in furtherance of the burglary, but that he did so with the intent to
promote or assist the burglary, and that he committed this culpable act before the
burglary occurred pursuant to an agreement with Brittany. Morrison, 608 S.W.2d
at 235; Urtado, 605 S.W.2d at 911; Tex. Pen. Code 7.02(a)(2). Assisting Brittany
in leaving Pope’s residence after she committed burglary (if she did at that time),
would not be enough. Cf. Haley v. State, 113 S.W.3d 801, 810-11 (Tex. App.—
Austin 2003) (“Standing alone, proof that an accused assisted the primary actor in
making his escape is likewise insufficient, although accused’s conduct may
constitute an independent offense of hindering apprehension or prosecution.”). As
with the alleged burglary under Texas Penal Code Section 30.02(a)(1), the State
cannot show Appellant committed any such culpable act before the burglary
pursuant to an agreement: the record is devoid of any such evidence.
3. Addressing possible counterarguments from the State
The State may argue that Appellant’s undisputed possession of recently
stolen property—the television—coupled with his poor explanation for that
possession (telling the officers the television belonged to his sister, and Napolez
that it belonged to Brittany) shows he is guilty. (V R.R. at 53; 112). However,
“recent and unexplained possession of stolen property is merely a circumstance of
guilt and is not conclusive.” Hardesty v. State, 656 S.W.2d 73, 77 (Tex. Crim.
41
Ohio App. 1983). Hence, “once the permissible inference arises, sufficiency of the
evidence must still be examined according to applicable evidentiary standards of
appellate review since the inference is not conclusive.” Id.
In conducting the sufficiency review, besides the discussion of the evidence
given above, it ought not to be overlooked that while the trailer in which the
television was found belonged to Appellant, Brittany lived there as well. (V R.R.
at 170) (“Brittany and [Appellant] were an item and she was residing with him in
the camper”). Their shared control over the trailer means that the “recent and
unexplained possession” is just as attributable to Brittany as to Appellant. England
v. State, 727 S.W.2d 810, 811 (Tex. App.—Austin 1987, no pet.) (“An inference of
guilt of burglary based on the accused’s personal possession of stolen goods has
not been raised where the stolen property was found in a place where others had an
equal right and facility of access.”); Prather v. State, 128 Tex. Crim. 342, 343, 81
S.W.2d 528, 529 (1935) (“In order to warrant an inference of guilt from the
circumstance of possession of recently stolen property, such possession must be
personal and exclusive, must be unexplained, and must involve a distinct and
conscious assertion of property by the defendant… But the house or room must be
proved to be in his exclusive occupation. But if it were found lying in a house or
room in which he lived jointly with others equally capable of having committed the
theft, it is clear that no definite presumption of guilt could be made.”) (emphasis
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added); McKnight v. State, 399 S.W.2d 552, 555 (Tex. Crim. App. 1966) (“The
circumstantial evidence, viewed in the perspective most favorable to the state,
shows only that appellant exercised joint control of the premises where the stolen
property was temporarily stored, and there is no evidence that appellant asserted
any control over the stolen property or that he was ever aware that the motor was
stolen.”).
Moreover, the State has not shown that Appellant a “conscious assertion of
right to the property”. England, 727 S.W.2d at 812. He never claimed the
television was his; in fact, he claimed his television was outside on the ground, and
the State’s own witness confirmed there was a “TV outside on the ground”. (V
R.R. at 41). Although Appellant denied having a 55-inch television in his trailer,
saying a television that large would not fit, it is undisputed that both he and one of
the officers initially thought the television in his trailer was 42 inches—hence
Appellant’s denial was, in fact, truthful. (V R.R. at 52; 72). And we should not
forget that it was Brittany who obstructed the officers from entering the trailer, but
Appellant who helped them by beginning to pry the door open with a
screwdriver—hardly the act of someone trying to conceal the fruits of a burglary.
(V R.R. at 38-39; 171-172).
As for selling the lawnmower to Glen Jolly, welding the trailer, allegedly
fabricating a receipt for the purchase of the trailer and lawnmower, and allegedly
43
being present during the passing of the forged check (or possibly even endorsing
it), (V R.R. at 94-97; 99; 118-120; 150-151) (VI R.R. at 29-30; but see 30)
(Defendant’s Ex. 2 and 7; State’s Ex. 30), each of these actions might be consistent
with complicity in some form of wrongdoing—receiving stolen property, forgery,
receiving a stolen check, etc.—but none of them establish Appellant’s complicity
in a burglary of Pope’s residence. For actions taken regarding the lawnmower and
trailer, these are oriented towards concealing and profiting from theft, whether
committed by Appellant or others, but they are not, in light of the rest of the
evidence discussed above, enough to establish Appellant’s complicity in a burglary
of Pope’s residence. Neither does being present when a forged check is passed
show that Appellant was present when that check was stolen from a habitation;
even forging the check himself (if that occurred) shows only that Appellant
committed forgery, not that he stole the check from Pope’s residence or was
criminally responsible as a party for doing so. And even if these facts raise
permissible inferences of guilt, those are offset by the careful sifting of the
evidence done above.
The State may also seize on the facts that Brittany and Pope were not close
and Pope did not even think Brittany had ever visited his house, making it unlikely
that any of her things would be in Pope’s residence, and thereby casting doubt on
her claim to be going to retrieve her own belongings. (IV R.R. at 19-20) (V R.R.
44
at 23-24). Well and good, but it does not show that Appellant was unjustified in
believing Brittany’s claim to repossessing her own possessions, or that he knew her
claim (offered by the State through Napolez, not by a defense witness) was false:
after all, he must have visited Brittany’s parents’ house at the same time Pope was
there, so he knew they had some relationship. (V R.R. at 18-19). And even if that
relationship was a poor one or virtually non-existent (IV R.R. at 20), it only lends
credence to Brittany’s claim that she got in an argument with her brother. (V R.R.
at 113).
Finally, we have the fact that Appellant’s alibi witness, Bobby Wisdom,
delivered testimony that was apparently not believed by the jury. (VIII R.R. at 9-
10). It is not clear, however, why the fact that the jury failed to believe an alibi
witness should have any effect on whether the evidence was otherwise sufficient to
support Appellant’s conviction. The evidence to establish each element of the
offense beyond a reasonable doubt must itself survive a “rigorous application of
the Jackson v. Virginia standard”, Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010), and whether the jury believed Wisdom’s testimony of
Appellant’s whereabouts on October 7, 2013 (the day the alleged burglary as
described by Napolez could not have occurred), or even his testimony regarding
being called to unload a television later that night at Appellant’s residence (a fact
which, even if false, would not show that Appellant had anything to do with the
45
burglary), seems to have no bearing on the question of whether the State carried its
independent burden to present legally sufficient evidence to obtain a conviction.
Conclusion
There is no evidence that, when Brittany entered Pope’s habitation, she
intended to commit theft. Quite the opposite: based on the only evidence
presented, she intended to re-appropriate her own goods, not appropriate someone
else’s. There is also no evidence that Brittany emerged from the residence having
stolen anything, nor that she even attempted to steal anything during her time in the
residence. And if there was another burglary on the same or another day, nothing
shows Appellant was complicit therein. As a result, the evidence is legally
insufficient to sustain Appellant’s conviction under the law of parties.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to
REVERSE the trial court’s judgment and RENDER a judgment of acquittal.
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Respectfully submitted:
/s/ Justin Bradford Smith
Justin Bradford Smith
Texas Bar No. 24072348
Harrell, Stoebner, & Russell, P.C.
2106 Bird Creek Drive
Temple, Texas 76502
Phone: (254) 771-1855
FAX: (254) 771-2082
Email: justin@templelawoffice.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I hereby certify that, pursuant to Rule 9 of the Texas Rules of Appellate
Procedure, Appellant’s Brief contains 9,507 words, exclusive of the caption,
identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, and certificate of compliance.
/s/ Justin Bradford Smith
Justin Bradford Smith
47
CERTIFICATE OF SERVICE
I hereby certify that on August 19, 2015, a true and correct copy of
Appellant’s Brief was forwarded to the counsel below by eservice:
Gary W. Bunyard
Llano County Assistant District Attorney
P.O. Box 725
Llano, Texas 78639
Telephone: (325) 247-5755
Fax: (325) 247-5274
Email: g.bunyard@co.llano.tx.us
/s/ Justin Bradford Smith
Justin Bradford Smith
48