ACCEPTED
12-14-00189-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
3/4/2015 2:57:12 PM
CATHY LUSK
CLERK
NO. 12-14-00189-CR
IN THE FILED IN
12th COURT OF APPEALS
COURT OF APPEALS TYLER, TEXAS
5TH JUDICIAL DISTRICT 3/4/2015 2:57:12 PM
DALLAS, TEXAS CATHY S. LUSK
Clerk
TRACY RAY HASS, Appellant
v.
THE STATE OF TEXAS, Appellee
ON APPEAL IN CAUSE NUMBER
061728
FROM THE 59TH DISTRICT COURT
OF GRAYSON COUNTY, TEXAS
HON. RAYBURN NALL, presiding
APPELLEE'S BRIEF
KARLA BAUGH HACKETT
ASSISTANT CRIMINAL DISTRICT ATTORNEY
GRAYSON COUNTY, TEXAS
200 S. CROCKETT ST.
SHERMAN, TX 75090
903/813-4361
903/892-9933 (fax)
baughk@co.grayson.tx.us (email)
TEXAS BAR NO. 01923400
ATTORNEY FOR THE STATE
ORAL ARGUMENT NOT REQUESTED
LIST OF PARTIES
APPELLANT:
TRACY RAY HASS
ATTORNEY FOR APPELLANT:
AT TRIAL & ON APPEAL:
DAVID ZEDLER
215 N. TRAVIS, SHERMAN, TX 75090
BAR NO. 0095737
903/868-8989
FAX: 903/786-0007
APPELLEE:
THE STATE OF TEXAS
ATTORNEY FOR THE STATE:
ON APPEAL ELECTED OFFICIAL AT TRIAL
KARLA BAUGH JOSEPH D. BROWN BRITTON BROOKS
HACKETT BAR NO. 00793413 BAR NO. 24049427
BAR NO. 01923400 CDA HOANG HUNT
ASST. CDA GRAYSON BAR NO. 24027081
GRAYSON COUNTY, TEXAS ASST. CDA
COUNTY, TEXAS 200 S. CROCKETT GRAYSON
200 S. CROCKETT SUITE 100 COUNTY, TEXAS
SUITE 100 SHERMAN, TX 200 S. CROCKETT
SHERMAN, TX 75090 SUITE 100
75090 (903) 813-4361 SHERMAN, TX
903/ 813-4361 903/ 892-9933 (FAX) 75090
903/ 892-9933 (FAX) 903/ 813-4361
903/ 892-9933 (FAX)
STATE'S BRIEF 12-14-00189-CR - PAGE ii
TABLE OF CONTENTS
LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
RESPONSE POINT 1: THE TRIAL COURT DID NOT ERR IN
DENYING THE APPELLANT’S MOTION TO SUPPRESS
EVIDENCE BECAUSE THE APPELLANT’S ARREST WAS NOT
ILLEGAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
A. HEARING ON MOTION TO SUPPRESS . . . . . . . . . . . . . . 8
B. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . 11
C. THE OFFICER HAD PROBABLE CAUSE TO ARREST
THE APPELLANT AND SEARCH HIS VEHICLE,
THEREFORE, THE TRIAL COURT DID NOT ABUSE
ITS DISCRETION IN DENYING THE MOTION TO
SUPPRESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
RESPONSE POINT 2: THE TRIAL COURT DID NOT ERR IN
ALLOWING EVIDENCE TO REBUT TESTIMONY
REGARDING THE APPELLANT’S LACK OF
KNOWLEDGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A. DEFENSIVE THEORY AT TRIAL . . . . . . . . . . . . . . . . . . . 16
B. STANDARD OF REVIEW FOR ADMISSIBILITY OF
STATE'S BRIEF 12-14-00189-CR - PAGE iii
PRIOR OFFENSES TO PROVE INTENT OR
REBUT DEFENSIVE THEORY . . . . . . . . . . . . . . . . . . . 19
C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
BECAUSE THE APPELLANT’S PRIORS WERE
PROPERLY ADMITTED FOR THE PURPOSE OF
REBUTTING THE DEFENSIVE THEOR THAT THE
APPELLANT HAD NO INTENT TO POSSESS THE
STOLEN AUTO PARTS. . . . . . . . . . . . . . . . . . . . . . . . 20
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
STATE'S BRIEF 12-14-00189-CR - PAGE 1
INDEX OF AUTHORITIES
Federal Cases
Miller v. Fenton, 474 U.S. 104, 106 S. Ct. 445, 88
L. Ed. 2d 405 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134
L. Ed. 2d 911 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
State Cases
Allridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991) . . . . . . . . . . . . 13
Dennis v. State, 178 S.W.3d 172 (Tex. App.—Houston [1st Dist.]
2005, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Garcia v. State, 15 S.W.3d 533 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . 13
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) . . . . . . . . . . . . 14
Mattias v. State, 731 S.W.2d 936 (Tex. Crim. App. 1987) . . . . . . . . . . . . 13
Meek v. State, 790 S.W.2d 618 (Tex. Crim. App. 1990) . . . . . . . . . . . . . 13
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) . . . . . . . . 20
Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003) . . . . . . . . . . 21, 22
Nobles v. State, 843 S.W.2d 503 (Tex. Crim. App. 1992) . . . . . . . . . . . . 21
Rankin v. State, 974 S.W.2d 707(Tex. Crim. App. 1996) . . . . . . . . . . . . . 20
Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990) . . . . . . . . 13, 20
Shipman v. State, 604 S.W.2d 182 (Tex. Crim. App. 1980) . . . . . . . . . . . 21
Spann v. State, 448 S.W.2d 128 (Tex. Crim. App. 1969) . . . . . . . . . . . . . 20
State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999) . . . . . . . . . . . . 12
State v. Fecci, 9 S.W.3d 212 (Tex. App.—San Antonio 1999, no pet.) . . 13
Villarreal v. State, 935 S.W.2d 134 (Tex. Crim. App. 1996) . . . . . . . . . . . 13
Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002) . . . . . . . . . . . . 21
Wolfberg v. State, 73 S.W.3d 441 (Tex. App.—Houston [1st Dist.]
2002, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
State Court Rules
Tex. R. Evid. 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22
STATE'S BRIEF 12-14-00189-CR - PAGE 2
NO. 12-14-00189-CR
IN THE
COURT OF APPEALS
5TH JUDICIAL DISTRICT
DALLAS, TEXAS
TRACY RAY HASS, Appellant
v.
THE STATE OF TEXAS, Appellee
TO THE HONORABLE COURT OF APPEALS:
COMES NOW THE STATE OF TEXAS, hereinafter referred to as the
State, and submits this brief pursuant to the Texas Rules of Appellate
Procedure and would show through her attorney the following:
ISSUES PRESENTED
RESPONSE POINT 1:
THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT’S
MOTION TO SUPPRESS EVIDENCE BECAUSE THE APPELLANT’S
ARREST WAS NOT ILLEGAL.
RESPONSE POINT 2:
STATE'S BRIEF 12-14-00189-CR - PAGE 3
THE TRIAL COURT DID NOT ERR IN ALLOWING EVIDENCE TO REBUT
TESTIMONY REGARDING THE APPELLANT’S LACK OF KNOWLEDGE.
SUMMARY OF ARGUMENT
In his first ground, the appellant alleges that the appellant’s arrest by
the Grayson County Sheriff’s Office was illegal. Specifically, the appellant
alleges that there was insufficient evidence at the time of the arrest to prove
that the appellant had committed the offense of theft. At the hearing on
the motion to suppress, the only witness who testified was Deputy Bowling.
The Court was free to believe all, none or any part of the deputy’s
testimony.
Deputy Bowling was dispatched to respond to a complaint by a
neighbor of a couple of vehicles on property at night where there was no
residence at 2:13 in the morning. Once at that location, Deputy Bowling
was unable to locate the vehicles described by the neighbor, but did notice
a damaged gate where someone had forced the gate open. Multiple
inoperable vehicles were parked on the property where the gate had been
forced open which, based on Deputy Bowling’s training and experience,
contained car parts that are a property often stolen. Approximately three
hours later, he did locate a vehicle approximately 15 yards from the
STATE'S BRIEF 12-14-00189-CR - PAGE 4
damaged gate loaded heavily with some unknown item or items and stuck
in a ditch.
Deputy Bowling observed the appellant walking around the vehicle
which had the trunk open. As soon as the deputy approached in his marked
police car, the appellant immediately closed the trunk, appearing to be
trying to conceal something. The appellant appeared very nervous when
approached by the deputy and was sweating profusely despite the cool
night air. The appellant was uneasy in the deputy’s presence, unable to
stand in one place while the deputy questioned him. When questioned, the
appellant told Deputy Bowling that he was coming from a friends house
known to him only as “Elwood,” pointing to the east about three driveways
from where his car was stranded, then stated that he was going to Trenton,
to the east. This seemed odd because his car was facing east, but
stranded west of the residence where he claimed to have been visiting.
Deputy Bowling also observed something heavy in the backseat of the
vehicle concealed by a sheet or shower curtain, consistent with large car
parts. When asked what was being concealed, the appellant told Deputy
Bowling that it was auto parts.
Based on the accessibility of the vehicles parked on the property with
STATE'S BRIEF 12-14-00189-CR - PAGE 5
the broken gate , the proximately to the broken gate, the appellant’s
demeanor, the time of night, the appellant’s reactions and the items being
auto parts, the possession of which were only vaguely explained, the officer
had probable cause to believe that the appellant had committed theft and
was in possession of that stolen property. The trial court did not abuse its
discretion in finding probable cause to arrest the appellant and search the
vehicle and denying the motion to suppress.
In his second ground, the appellant alleges that the trial court erred in
allowing character evidence to be admitted to rebut the appellant’s claim
that he did not the items in the vehicle were stolen. The defensive theory
that appellant lacked the intent to commit the offense of theft was
introduced into the case by the appellant when Colene Williams attempted
to assume sole responsibility for the purchase of the stolen auto parts, and
was subject, therefore, to rebuttal by the State. Specifically, Ms. William’s
testimony attempted to prove that she owned the car, she purchased the
auto parts, she got the car stuck in a ditch, and the appellant did not know
anything about anything.
The trial court properly instructed the jury to only use the appellant’s
prior criminal history to determine the appellant’s intent. The extraneous
STATE'S BRIEF 12-14-00189-CR - PAGE 6
evidence had probative value beyond character conformity. The extraneous
offense evidence admitted to rebut a the defensive theory of lack of intent
was similar to the charged offense. The fact that the appellant had
committed and been convicted of several burglaries and a theft proved he
was much more knowledgeable than the average person about the nature
of stolen property. Certainly, he was too knowledgeable to think that
thousand’s of dollars of stolen property just appeared in his car – or his ex-
girlfriend’s car as Ms. Williams claimed. Based on his prior burglaries and
thefts, the appellant would have known that auto parts, especially those
concealed under a sheet or shower curtain, in a vehicle parked next to
multiple parked vehicles, on property where the gate had been forced open,
were suspicious.
The appellant made no argument at trial that the probative value was
outweighed by any prejudicial effect. The jury was strictly instructed to only
consider the extraneous offenses if they believed the appellant committed
those offenses beyond a reasonable doubt and only to determine the
appellant’s intent in possessing the stolen auto parts. As such, the trial
court’s decision to allow the State to use the appellant’s extraneous
offenses for rebuttal purposes was not an abuse of discretion under Rule
STATE'S BRIEF 12-14-00189-CR - PAGE 7
404(b).
ARGUMENT
RESPONSE POINT 1:
THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT’S
MOTION TO SUPPRESS EVIDENCE BECAUSE THE APPELLANT’S
ARREST WAS NOT ILLEGAL.
In his first ground, the appellant alleges that the appellant’s arrest by
the Grayson County Sheriff’s Office was illegal. Specifically, the appellant
alleges that there was insufficient evidence at the time of the arrest to prove
that the appellant had committed the offense of theft.
A. HEARING ON MOTION TO SUPPRESS
Deputy Donald Bowling, having been a certified peace officer for over
13 years, had investigated and made arrests on multiple theft cases. (RR
vol. 2, pp. 4-5) On January 16, 2012, Deputy Bowling was dispatched to
respond to a complaint of a couple of vehicles on property at night where no
residence existed. (RR vol. 2, p. 6) The complaint call was from a neighbor
STATE'S BRIEF 12-14-00189-CR - PAGE 8
in that area. (RR vol. 2, p. 7) It was 2:13 in the morning. (RR vol. 2, p. 7)
Deputy Bowling proceeded to that location and was unable to locate
the vehicles described by the neighbor. (RR vol. 2, p. 9) Upon checking
the property, Deputy Bowling noticed a damaged gate where someone had
forced the gate open. (RR vol. 2, pp. 7-8) Multiple inoperable vehicles were
parked on the property where the gate had been forced open. (RR vol. 2,
pp. 8-9) Based on Deputy Bowling’s training and experience, car parts are
a property often stolen. (RR vol. 2, p. 9)
Deputy Bowling, unable to locate the vehicles described by the
neighbor, left the property. (RR vol. 2, p. 9) The deputy returned to that
location approximately three hours later. (RR vol. 2, p. 9) This time he did
locate a vehicle approximately 15 yards from the damaged gate. (RR vol.
2, p. 9) A passenger vehicle on the side of the roadway loaded heavily with
some unknown item or items appeared to be stuck in a ditch. (RR vol. 2,
pp. 9-10) Deputy Bowling observed the appellant walking around the vehicle
which had the trunk open. (RR vol. 2, pp. 10-12) As soon as the deputy
approached in his marked police car, the appellant immediately closed the
trunk. (RR vol. 2, p. 11) Deputy Bowling was immediately suspicious as
the action by the appellant appeared to be trying to conceal something.
STATE'S BRIEF 12-14-00189-CR - PAGE 9
(RR vol. 2, pp. 11-12)
The appellant appeared very nervous when approached by the
deputy. (RR vol. 2, p. 12) The temperature was cool, but the appellant was
sweating profusely. (RR vol. 2, p. 12) The appellant was uneasy in the
deputy’s presence, unable to stand in one place while the deputy
questioned him. (RR vol. 2, pp. 12-13)
Deputy Bowling asked the appellant why he was there, where he was
going to and where he had come from. (RR vol. 2, p. 13) The appellant
told Deputy Bowling that he was coming from a friends house known to him
only as “Elwood,” pointing to the east about three driveways from where his
car was stranded. (RR vol. 2, p. 13) The appellant also stated that he was
going to Trenton, to the east. This seemed odd because his car was facing
east, but stranded west of the residence where he claimed to have been
visiting. (RR vol. 2, pp. 13-14) Deputy Bowling also observed something
heavy in the backseat of the vehicle concealed by a sheet or shower
curtain. (RR vol. 2, p. 14) When asked what was being concealed, the
appellant told Deputy Bowling that it was auto parts. (RR vol. 2, p. 15)
Deputy Bowling believed those parts to have been stolen from the many
vehicles parked on the property with the broken gate based on the
STATE'S BRIEF 12-14-00189-CR - PAGE 10
proximately to the broken gate, the appellant’s demeanor, the time of night,
the appellant’s reactions and the items being auto parts. (RR vol. 2, p. 15)
The appellant told the deputy that he had purchased the auto parts from “a
friend” but was vague and unable to elaborate on the “friend.” (RR vol. 2,
pp. 15-16) This vagueness was consistent with deception. (RR vol. 2, p.
16) As the deputy spoke with him, the appellant became more and more
agitated. (RR vol. 2, pp. 16-17)
At that point, the officer believed he had probable cause to believe
that the appellant had committed theft and was in possession of that stolen
property. (RR vol. 2, p. 17) The deputy also had probable cause, to
search the motor-vehicle, finding several large heavy engine parts. (RR
vol. 2, p. 17)
B. STANDARD OF REVIEW
In a motion to suppress hearing, the trial court is the sole trier of fact
and judge of the credibility of the witnesses and the weight to be given their
testimony. See State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App.
1999). Accordingly, the judge may believe or disbelieve all or any part of a
STATE'S BRIEF 12-14-00189-CR - PAGE 11
witness's testimony, even if that testimony is not controverted. See Garcia
v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000); Allridge v. State, 850
S.W.2d 471, 492 (Tex. Crim. App. 1991); Meek v. State, 790 S.W.2d 618,
620 (Tex. Crim. App. 1990). See also, State v. Fecci, 9 S.W.3d 212, 221
(Tex. App.—San Antonio 1999, no pet.) See Mattias v. State, 731 S.W.2d
936, 940 (Tex. Crim. App. 1987). This is so because it is the trial court that
observes first hand the demeanor and appearance of a witness, as
opposed to an appellate court which can only read an impersonal record.
See Garcia, 15 S.W.3d at 535; Villarreal v. State, 935 S.W.2d 134, 138
(Tex. Crim. App. 1996); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990).
In reviewing a trial court's ruling, an appellate court must first
determine the applicable standard of review. The amount of deference a
reviewing court affords to a trial court's ruling on a “mixed question of law
and fact” (such as the issue of probable cause) often is determined by
which judicial actor is in a better position to decide the issue. Miller v.
Fenton, 474 U.S. 104, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985). If the issue
involves the credibility of a witness, thereby making the evaluation of that
witness' demeanor important, compelling reasons exist for allowing the trial
STATE'S BRIEF 12-14-00189-CR - PAGE 12
court to apply the law to the facts. Miller, 106 S. Ct. at 452. On the other
hand if the issue is whether an officer had probable cause to seize a
suspect, under the totality of the circumstances, the trial judge is not in an
appreciably better position than the reviewing court to make that
determination.
The United States Supreme Court ruled that, although great weight
should be given to the inferences drawn by the trial judges and law
enforcement officers, determinations of reasonable suspicion and probable
cause should be reviewed de novo on appeal. Ornelas v. United States, 517
U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996). The Court stated, “the
legal rules for probable cause and reasonable suspicion acquire content
only through application. Independent review is therefore necessary if
appellate courts are to maintain control of, and to clarify the legal
principles.” Ornelas, 116 S. Ct. at 1662, citing Miller, 106 S. Ct. at 451–52.;
Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
C. THE OFFICER HAD PROBABLE CAUSE TO ARREST THE
APPELLANT AND SEARCH HIS VEHICLE, THEREFORE, THE TRIAL
COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE MOTION
TO SUPPRESS
STATE'S BRIEF 12-14-00189-CR - PAGE 13
At the hearing on the motion to suppress, the only witness who
testified was Deputy Bowling. The Court was free to believe all, none or
any part of the deputy’s testimony.
Deputy Bowling was dispatched to respond to a complaint by a
neighbor of a couple of vehicles on property at night where there was no
residence at 2:13 in the morning. Once at that location, Deputy Bowling
was unable to locate the vehicles described by the neighbor, but did notice
a damaged gate where someone had forced the gate open. Multiple
inoperable vehicles were parked on the property where the gate had been
forced open which, based on Deputy Bowling’s training and experience,
contained car parts that are a property often stolen. Approximately three
hours later, he did locate a vehicle approximately 15 yards from the
damaged gate loaded heavily with some unknown item or items and stuck
in a ditch.
Deputy Bowling observed the appellant walking around the vehicle
which had the trunk open. As soon as the deputy approached in his marked
police car, the appellant immediately closed the trunk, appearing to be
trying to conceal something. The appellant appeared very nervous when
approached by the deputy and was sweating profusely despite the cool
STATE'S BRIEF 12-14-00189-CR - PAGE 14
night air. The appellant was uneasy in the deputy’s presence, unable to
stand in one place while the deputy questioned him. When questioned, the
appellant told Deputy Bowling that he was coming from a friends house
known to him only as “Elwood,” pointing to the east about three driveways
from where his car was stranded, then stated that he was going to Trenton,
to the east. This seemed odd because his car was facing east, but
stranded west of the residence where he claimed to have been visiting.
Deputy Bowling also observed something heavy in the backseat of the
vehicle concealed by a sheet or shower curtain, consistent with large car
parts. When asked what was being concealed, the appellant told Deputy
Bowling that it was auto parts.
Based on the accessibility of the vehicles parked on the property with
the broken gate , the proximately to the broken gate, the appellant’s
demeanor, the time of night, the appellant’s reactions and the items being
auto parts, the possession of which were only vaguely explained, the officer
had probable cause to believe that the appellant had committed theft and
was in possession of that stolen property. The trial court did not abuse its
discretion in finding probable cause to arrest the appellant and search the
vehicle and denying the motion to suppress.
STATE'S BRIEF 12-14-00189-CR - PAGE 15
RESPONSE POINT 2:
THE TRIAL COURT DID NOT ERR IN ALLOWING EVIDENCE TO REBUT
TESTIMONY REGARDING THE APPELLANT’S LACK OF KNOWLEDGE.
In his second ground, the appellant alleges that the trial court erred in
allowing character evidence to be admitted to rebut the appellant’s claim
that he did not the items in the vehicle were stolen.
A. DEFENSIVE THEORY AT TRIAL
The arresting deputy testified to his observations regarding the
appellant’s arrest and to several statements made by the appellant. (RR
vol. 4, pp. ) Specifically, the appellant told Deputy Bowling that his girlfriend
had been looking fo help and that later on the vehicle had gotten stuck and
that “they” had gotten into a fight. (RR vol. 4, pp. 55-56) The appellant
states that the girlfriend later told him that his vehicle was either broken
down or stuck, or words to that effect. (RR vol. 4, p. 56) The appellant
claimed ownership of the car and never told the deputy that someone else
owned it or was purchasing it. (RR vol. 4, p. 56) The appellant claimed that
he had purchased some of the auto parts days prior to that evening and
STATE'S BRIEF 12-14-00189-CR - PAGE 16
said that some of the parts were purchased that morning. (RR vol. 4, pp.
57-58) Later, after the actual owner of the auto parts had identified all of the
stolen items, the appellant told the deputy that he had purchased all of the
items from “Bobby” that morning. (RR vol. 4, p. 59) The appellant never
told the deputy that the parts belonged to or were purchased by a third
party. (RR vol. 4, p. 58)
At trial, the appellant did not testify. (RR vol. 4, p. 3) However, he did
call his girlfriend to testify on his behalf. (RR vol. 4, p. 119) His girlfriend,
Colleen Williams, testified that she was buying the car driven by the
appellant the night he was arrested from the appellant. (RR vol. 4, pp. 121-
122) She also testified that she had possession of that car on the night the
appellant was arrested and that she was the one who had gotten the vehicle
stuck. (RR vol. 4, pp. 122-123) She also testified that she purchased the
auto parts from “Billy” and the defendant did not know about the auto parts,
of the car being at the location in question, or the car getting stuck in the
ditch. (RR vol. 4, pp. 125-137, 156)
Ms. Williams was a convicted felon who has served time as a party to
the offense for which the appellant was also convicted. (RR vol. 4, pp. 138-
142, 147) Ms. Williams knew that she could not be prosecuted again for this
STATE'S BRIEF 12-14-00189-CR - PAGE 17
offense no matter what she testified to in the appellant’s case. (RR vol. 4,
p. 147) Ms. Williams did not know “Billy’s” last name, but assumed that it
was permissible to go onto the property and remove items. (RR vol. 4, p.
149) Previously, under oath, Ms. Williams had testified that “somebody”
had given them permission to take items from the property. (RR vol. 4, p.
151) Ms. Williams’ honesty was also impeached with multiple theft
convictions. (RR vol. 4, pp. 152-154)
Based on Ms. Williams’ testimony that the appellant had neither
knowledge or intent regarding the stolen auto parts alleged in this case, the
State sought to introduce the appellant’s priors for burglary for the sole
purpose of rebutting the defensive theories. (RR vol. 4, pp. 157-164) The
appellant objected to the testimony under rule 404(b) and asked for a
running objection to all questions regarding the appellant criminal history,
but never made an objection under Rule 403 regarding whether the
extraneous offense evidence would be more prejudicial than probative. (RR
vol. 4, pp. 163-166) Ms. Williams was asked about the appellant’s prior
burglaries and theft. (RR vol. 4, pp. 169-172) The jury was instructed that
they could only consider the evidence regarding the appellant’s prior
criminal history if they found beyond a reasonable doubt that the appellant
STATE'S BRIEF 12-14-00189-CR - PAGE 18
actually committed those offenses and then only to determine the intent of
the defendant in connection with the current charges. (RR vol. 4, pp. 172-
173)
B. STANDARD OF REVIEW FOR ADMISSIBILITY OF PRIOR OFFENSES
TO PROVE INTENT OR REBUT DEFENSIVE THEORY
The appellate courts a trial court's admission of extraneous offense
evidence for an abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718
(Tex. Crim. App. 1996), opinion withdrawn in part on reconsideration (July
8, 1998) (op. on reh'g); Wolfberg v. State, 73 S.W.3d 441, 443 (Tex.
App.—Houston [1st Dist.] 2002, pet. ref’d) (Tex. App.-Houston [1st Dist.]
2002, pet. ref'd).Montgomery v. State, 810 S.W.2d 372, 39192 (Tex. Crim.
App. 1990), on reh’g (June 19, 1991)–92 (Tex. Crim. App.1991) (op. on
reh'g). Further, a trial court's decision regarding admissibility of evidence will
be sustained if correct on any theory of law applicable to the case, even
when the court's underlying reason for the decision is wrong. Romero, 800
S.W.2d, 543 (citing Spann v. State, 448 S.W.2d 128 (Tex. Crim. App.
1969)).
Rule 404(b) states that evidence of extraneous offenses is not
STATE'S BRIEF 12-14-00189-CR - PAGE 19
admissible at the guilt-innocence phase of a trial to prove that a defendant
committed the charged offense in conformity with a bad character. Tex. R.
Evid. 404(b); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992).
Extraneous offense evidence may be admissible, however, when it has
relevance beyond character-conformity, for example, to show proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Id. ; Moses v. State, 105 S.W.3d 622, 626
(Tex. Crim. App. 2003). Rebuttal of a defensive theory is “one of the
permissible purposes for which relevant evidence may be admitted under
Tex. R. Evid. 404(b).” Moses, 105 S.W.3d at 626.
As a general rule, the defensive theory that the State wishes to rebut
through the use of extraneous offense evidence must be elicited on direct
examination by defense and may not by elicited by “prompting or
maneuvering” by the State. Wheeler v. State, 67 S.W.3d 879, 885 (Tex.
Crim. App. 2002); Shipman v. State, 604 S.W.2d 182, 185 (Tex. Crim. App.
1980) (stating that State “may not rely on its own questioning” to get into
collateral matters, extraneous offenses, and bad acts that “would otherwise
be inadmissible”).
STATE'S BRIEF 12-14-00189-CR - PAGE 20
C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BECAUSE
THE APPELLANT’S PRIORS WERE PROPERLY ADMITTED FOR THE
PURPOSE OF REBUTTING THE DEFENSIVE THEOR THAT THE
APPELLANT HAD NO INTENT TO POSSESS THE
STOLEN AUTO PARTS.
The defensive theory that appellant lacked the intent to commit the
offense of theft was introduced into the case by the appellant when Colene
Williams attempted to assume sole responsibility for the purchase of the
stolen auto parts, and was subject, therefore, to rebuttal by the State. See
Tex. R. Evid. 404(b); Moses, 105 S.W.3d at 626. Specifically, Ms. William’s
testimony attempted to prove that she owned the car, she purchased the
auto parts, she got the car stuck in a ditch, and the appellant did not know
anything about anything.
The trial court properly instructed the jury to only use the appellant’s
prior criminal history to determine the appellant’s intent. The extraneous
evidence had probative value beyond character conformity. Tex. R. Evid.
404(b). The extraneous offense evidence admitted to rebut a the defensive
theory of lack of intent was similar to the charged offense. Dennis v. State,
178 S.W.3d 172, 179 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)
(holding that extraneous offense evidence admitted to rebut defensive
STATE'S BRIEF 12-14-00189-CR - PAGE 21
theory of frame-up need not be signature crime or nearly identical to
charged offense; rule 404(b) requires only similarity to charge offense).
The fact that the appellant had committed and been convicted of several
burglaries and a theft proved he was much more knowledgeable than the
average person about the nature of stolen property. Certainly, he was too
knowledgeable to think that thousand’s of dollars of stolen property just
appeared in his car – or his ex-girlfriend’s car as Ms. Williams claimed.
Based on his prior burglaries and thefts, the appellant would have known
that auto parts, especially those concealed under a sheet or shower curtain,
in a vehicle parked next to multiple parked vehicles, on property where the
gate had been forced open, were suspicious.
The appellant made no argument at trial that the probative value was
outweighed by any prejudicial effect. The jury was strictly instructed to only
consider the extraneous offenses if they believed the appellant committed
those offenses beyond a reasonable doubt and only to determine the
appellant’s intent in possessing the stolen auto parts. As such, the trial
court’s decision to allow the State to use the appellant’s extraneous
offenses for rebuttal purposes was not an abuse of discretion under Tex. R.
Evid. 404(b).
STATE'S BRIEF 12-14-00189-CR - PAGE 22
PRAYER
WHEREFORE, the state respectfully prays this court affirm the
judgment and conviction herein.
Respectfully Submitted,
JOSEPH D. BROWN
CRIMINAL DISTRICT ATTORNEY
/s/ Karla Baugh Hackett
KARLA BAUGH HACKETT
ASSISTANT CRIMINAL DISTRICT ATTORNEY
GRAYSON COUNTY, TEXAS
200 S. CROCKETT ST.
SHERMAN, TX 75090
903/813-4361
903/892-9933 (fax)
baughk@co.grayson.tx.us (email)
TEXAS BAR NO. 01923400
ATTORNEY FOR THE STATE
STATE'S BRIEF 12-14-00189-CR - PAGE 23
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Motion
was mailed to:
DAVID ZEDLER
215 N. TRAVIS, SHERMAN, TX 75090
attorney of record for the Appellant, in accordance of the Rules of Appellate
Procedure, on March 4, 2015.
/s/ Karla Baugh Hackett
KARLA BAUGH HACKETT
ASSISTANT CRIMINAL DISTRICT ATTORNEY
GRAYSON COUNTY, TEXAS
200 S. CROCKETT ST.
SHERMAN, TX 75090
903/813-4361
903/892-9933 (fax)
baughk@co.grayson.tx.us (email)
TEXAS BAR NO. 01923400
STATE'S BRIEF 12-14-00189-CR - PAGE 24
STATE’S CERTIFICATE OF COMPLIANCE
I certify that this document contains 4,085 words, exclusive of
the caption, the identity of parties and counsel, the statement regarding oral
argument, the table of contents, the index of authorities, the statement of
the case, the statement of issues presented, the statement of jurisdiction,
the statement of procedural history, the signature, the proof of service, the
certification, the certificate of compliance, and the appendix.
/s/ Karla Baugh Hackett March 4, 2015
KARLA BAUGH HACKETT
ASSISTANT CRIMINAL DISTRICT ATTORNEY
GRAYSON COUNTY, TEXAS
200 S. CROCKETT ST.
SHERMAN, TX 75090
903/813-4361
903/892-9933 (fax)
baughk@co.grayson.tx.us (email)
TEXAS BAR NO. 01923400
STATE'S BRIEF 12-14-00189-CR - PAGE 25