Morgan, Dewan

PD-0758-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/9/2015 3:37:28 PM
Accepted 11/9/2015 3:39:42 PM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK

DEWAN MORGAN, §
APPELLANT § November 9, 2015
§
v. § No. PD-0758-15
§
THE STATE OF TEXAS, §
APPELLEE §

APPELLANT’S BRIEF ON THE MERITS

FROM THE SECOND COURT OF APPEALS AT FORT WORTH
IN CAUSE NUMBER 02-14-00231-CR
AND
TH
FROM THE 211 JUDICIAL DISTRICT COURT
DENTON COUNTY, TEXAS
IN CAUSE NO. F-2013-1704-C

CHRISTOPHER ABEL
ATTORNEY FOR APPELLANT
Bar No. 24043516
2609 Sagebrush Drive
Suite 202
Flower Mound, TX 75028
972-584-7837
972-947-3813 (fax)
chris@flowermoundcriminaldefense.com
 IDENTITY OF PARTIES & COUNSEL

Appellant…………………………………………….DEWAN MORGAN

CHRISTOPHER ABEL
2609 Sagebrush Drive
Suite 202
Flower Mound, TX 75028
APPELLATE COUNSEL

DEREK ADAME
1512 E. McKinney Street
Suite 102
Denton, TX 76209
TRIAL COUNSEL

Appellee…………………..…………………………THE STATE OF TEXAS

PAUL JOHNSON
Criminal District Attorney

CATHERINE LUFT
Assistant District Attorney
Chief, Appellate Division

YAEL ZBOLON
Assistant District Attorney
1450 E. McKinney Street
Suite 3100
Denton, TX 76209
APPELLATE COUNSEL

MICHAEL GRAVES
LINDSEY SHEGUIT
Assistant District Attorneys
TRIAL COUNSEL

i
 TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL ...................................................................i

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ............................................... 2

ISSUES PRESENTED............................................................................................... 2

GROUND ONE:
In burglary of habitation cases, must trial and appellate courts utilize
property law to determine who qualifies as the ―owner‖ of a habitation as
defined by the Penal Code?

GROUND TWO:
To qualify as ―entry without the effective consent of the owner,‖ how much
time must elapse after a victim revokes consent for her live-in boyfriend to
enter her home for his forcible entry to be deemed a burglary?

STATEMENT OF THE FACTS ............................................................................... 2

SUMMARY OF APPELLANT’S ARGUMENTS ................................................... 6

ARGUMENT ............................................................................................................. 7

APPELLANT’S RESPONSE TO GROUND ONE .................................................. 7

APPELLANT’S RESPONSE TO GROUND TWO ............................................... 13

PRAYER FOR RELIEF .......................................................................................... 18

CERTIFICATE OF COMPLIANCE ....................................................................... 18

CERTIFICATE OF SERVICE ................................................................................ 19

ii
 INDEX OF AUTHORITIES

Statutes, Codes, and Rules

Tex. Code of Crim. Pro. Sec. 36.13 ......................................................................... 10

Tex. Gov’t. Code Sec. 311.003 .................................................................................. 9

Tex. Gov’t. Code Sec. 311.021 (3) .......................................................................... 14

Tex. Gov’t. Code Sec. 311.023 (4) ............................................................................ 7

Tex. Pen. Code Sec. 1.07 (a) (39) ............................................................................ 10

Tex. Pen. Code Sec. 38.01 ......................................................................................... 9

Cases

Allen v. State,
11 S.W.3d 474 (Tex. App. – Houston [1st Dist.] 2000)
Affirmed, 48 S.W.3d 775 (Tex. Crim. App. 2001) ......................................... 8

Azeez v. State,
248 S.W.3d 182 (Tex. Crim. App. 2008) ........................................................ 9

Black v. State,
505 S.W.2d 821 (Tex. Crim. App. 1974) ...................................................... 11

Boykin v. State,
818 S.W.2d 782 (Tex. Crim. App. 1991) .................................................... 7-8

Carranza v. State,
960 S.W.2d 76 (Tex. Crim. App. 1998) .......................................................... 9

Dominguez v. State,
355 S.W.3d 918 (Tex. App. – Fort Worth 2011, pet. ref’d).......................... 16

iii
Krause v. State,
243 S.W.3d 95 (Tex. App. – Houston [1st Dist.] 2007, pet. ref’d) .......... 14-15

Lanford v. Fourteenth Court of Appeals,
847 S.W.2d 581 (Tex. Crim. App. 1993) ........................................................ 8

Mack v. State,
928 S.W.2d 219 (Tex. App. – Austin 1996).................................................. 16

Morgan v. State,
2015 Tex. App. LEXIS 5411 ......................................................................... 14

Porter v. State,
873 S.W.2d 729 (Tex. App. – Dallas 1994) .................................................. 11

Roberts v. State,
963 S.W.2d 894 (Tex. App. – Texarkana 1998) ........................................... 11

iv
 IN THE COURT OF CRIMINAL APPEALS OF TEXAS

DEWAN MORGAN, §
APPELLANT §
§
v. § No. PD-0758-15
§
THE STATE OF TEXAS, §
APPELLEE §

APPELLANT’S BRIEF ON THE MERITS

TO THE COURT OF CRIMINAL APPEALS:

Comes now, Appellant, by and through his attorney of record, and

respectfully submits his brief on the merits urging affirmation of the Judgment and

Opinion of the Second District Court of Appeals.

STATEMENT OF THE CASE

Appellant was convicted of burglary of a habitation and sentenced to twelve

years confinement in prison. Appellant appealed to the Second District Court of

Appeals. The Second Court of Appeals found the evidence legally insufficient,

vacated the burglary conviction and affirmed a conviction against Appellant for the

lesser included offense of assault. The State petitioned this Court for discretionary

review, which was granted.

1
 STATEMENT REGARDING ORAL ARGUMENT

This Court has granted oral argument. As this case will be of precedential

value on issues yet to be addressed, Appellant believes oral argument would be

beneficial to all parties.

ISSUES PRESENTED

1. In burglary of habitation cases, must trial and appellate courts utilize
property law to determine who qualifies as the ―owner‖ of a habitation as
defined by the Penal Code?

2. To qualify as ―entry without the effective consent of the owner,‖ how
much time must elapse after a victim revokes consent for her live-in
boyfriend to enter her home for his forcible entry to be deemed a
burglary?

STATEMENT OF THE FACTS

The complaining witness invited Appellant to live with her in her apartment

and gave him a key. [3 RR 29-30]. The evidence shows that at the time Appellant

moved in to the apartment, he was unemployed. [3 RR 29]. Upon becoming

employed, Appellant began paying bills such as groceries, cleaning supplies and

utilities. [3 RR 29]. Ms. Raglin paid the monthly rent, and at no point did she add

appellant to her lease. [Id.]. The evidence also showed that her lease did not have

Appellant as an approved occupant on the lease. [4 RR 29]. Both Ms. Raglin and

Appellant had a key to the apartment. [3 RR 30]. At the time of the first assault,

2
April 30, 2013, these matters were still the same. [Id.]. Appellant continued to live

with Ms. Raglin after this incident. [3 RR 39]. The arrangements for paying the

bills also continued to remain the same through June 20, 2013, the day the incident

that resulted in the burglary conviction occurred. [3 RR 40].

The June 20th incident happened at Ms. Raglin’s apartment after 5:00 p.m.

[Id.]. Earlier that day, Ms. Raglin had accidentally encountered Appellant at a

convenience store. [3 RR 40-41]. Appellant had requested that she wait for him

outside until he had completed his business in the store so that he could speak to

her. [3 RR 41]. Ms. Raglin did not wait for him because they had argued earlier

that day. [Id.]. She instead drove her vehicle to a male co-worker’s house. [3 RR

42]. She and the co-worker then drove to her apartment. [3 RR 43]. They went

inside her apartment, but the co-worker was leaving to pick them up something to

eat when Appellant arrived. Ms. Raglin, while inside her apartment, observed

Appellant and the co-worker exchange words in the parking lot but did not hear

what was said. [3 RR 44]. She had the front door locked with a dead bolt that

could only be unlocked from inside the apartment. [3 RR 45]. She locked that

particular lock so that Appellant would not be able to enter the apartment. [Id.].

Appellant then came to the door and tried to enter the apartment by using his

key. [3 RR 46]. When that failed, he knocked on the door and rang the doorbell.

[Id.]. Appellant then threw some rocks into a side window of the apartment,

3
thereby breaking the window. [3 RR 46]. Ms. Raglin was standing immediately

inside the front door and continued not to allow Appellant to enter. [3 RR 47]. At

that point, notwithstanding the dead bolt being locked, Appellant kicked in the

door and entered the apartment. [Id.].

After entering the apartment, Appellant bit Ms. Raglin’s left breast. [3 RR

48]. Ms. Raglin testified that a scuffle ensued in the back of the apartment in

which she and Appellant were hitting each other. [3 RR 48]. During the scuffle,

Appellant punched Ms. Raglin and grabbed her arms. [Id.]. Ms. Raglin testified

that her intent in locking the door to her apartment was not to force appellant to

permanently vacate the residence, but only to have cooling-off period. [4 RR 12,

16]. Ms. Raglin testified that she told the police after they arrived that Appellant

lived at the apartment and that she heard Appellant tell the officers that he resided

at her apartment. [4 RR 17].

Ms. Raglin called 911and City of Dallas police officers were dispatched to

her apartment. [3 RR 48]. Kenny Lopez was the first officer to respond to the

scene. [4 RR 44]. Officer Lopez gathered information that established Appellant

had assaulted Ms. Raglin. [4 RR 46-48, 51]. Appellant was arrested for the offense

of assault-family violence. Appellant was not arrested for burglary of a habitation

because the statements of both parties, as well as the officers’ observations,

showed that Appellant lived at the apartment. [4 RR 49]. Officer Lopez testified

4
that Ms. Raglin simply locking the door did not terminate his consensual

occupation of the apartment. [4 RR 51].

Officer Justin Kash was also called as a witness by the State. [Id.]. He was

in charge of the investigation of the incident at Ms. Raglin’s apartment. [4 RR 61].

Officer Kash spoke with the complainant and determined how the assault occurred,

including his belief that Appellant had choked Ms. Raglin. [4 RR 63]. He also

testified that the address on Appellant’s driver’s license was different from that of

Appellant’s apartment. [4 RR 64]. After discussing the incident with other

officers, Officer Kash made the decision to arrest Appellant for the offense of

assault-family violence with impeding breath, a third-degree felony offense. [4 RR

71]. Because he and the other officers determined that Appellant was living at the

residence, Appellant was not arrested for burglary. [4 RR 76]. Ultimately, the

detective assigned to the case, Detective Quezada, changed the charge to burglary

of a habitation. [4 RR 71]. Detective Quezada did not testify, and his reasoning in

determining the correct charge was burglary was not known by the officers. [4 RR

73-74].

5
 SUMMARY OF APPELLANT’S ARGUMENTS

The question posited by the State incorrectly assumes that there can be only

one owner of a habitation. The Penal Code definition of ―owner‖ is expansive and

allows for multiple owners of a habitation. As this can lead to ambiguity and

absurd results, it was proper for the Second District Court of Appeals to turn to

other laws on the subject, pursuant to the Code Construction Act. Furthermore,

upon looking at other laws on the subject, it is clear that Appellant qualifies as an

―owner‖ of the habitation in this case.

Again, the State incorrectly assumes in its second grounds for review that

consent was revoked in this case. As Appellant was an owner of the property in

question, his consent was never revoked, and the record is void of any evidence of

revocation of his consent to live in the apartment.

6
 ARGUMENT

APPELLANT’S RESPONSE TO STATE’S GROUND ONE

In burglary of habitation cases, must trial and appellate courts utilize
property law to determine who qualifies as the ―owner‖ of a habitation as
defined by the Penal Code?

The State contends that the Second Court of Appeals erroneously applied

common law and property law to determine who qualifies as an owner. While the

State cites precedent for the definition of an ―owner‖ in its brief, none of the cases

cited stand for the proposition that the definition of ―owner‖ in the Penal Code is

exclusive of all other laws and cannot be interpreted with an eye toward other

statutes and common law. Indeed, the legislature intended for Courts to utilize

other laws when interpreting statutes, when the statute is ambiguous or would lead

to an absurd result. Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991).

One need only to turn to the Code Construction Act of Texas, where it is

enacted that, ―In construing a statute, whether or not the statute is considered

ambiguous on its face, a court may consider among other matters the…common

law or former statutory provisions, including laws on the same or similar subjects‖.

Tex. Gov’t. Code Sec. 311.023(4). The Second Court of Appeals looked to

common law and other laws on similar subjects, specifically ownership and

property laws. This is not error, but rather comports with exactly what Courts are

allowed to do when interpreting statutes pursuant to the Code Construction Act.

7
 Though it is true that Boykin holds that a literal reading of the statute

controls over the Code Construction Act, the Act may still be utilized when the

statute is ambiguous or would lead to absurd results. In Lanford v. Fourteenth

Court of Appeals, the Court of Criminal Appeals concluded that an ambiguity

exists when the parties take polarized positions regarding the interpretation of a

statute's text. Lanford, 847 S.W.2d 581, 587 (Tex. Crim. App. 1993); see also Allen

v. State, 11 S.W.3d 474, 476 (Tex. App.--Houston [1st Dist.] 2000), affirmed, 48

S.W.3d 775 (Tex. Crim. App. 2001). Because the parties here take polarized

positions as to whether "owner" includes someone who is also legally living at a

residence, it is appropriate to apply the Code Construction Act.

Furthermore, while the State has argued that the Penal Code has aptly

defined ―owner,‖ the State is incorrect. The term ―owner‖ is not defined aptly in

the Penal Code, as its interpretation allows for property to be owned by more than

one person and thus can lead to confusion, such as in the case at bar. Furthermore,

it can lead to an absurd result. Under the State’s rationale, anyone with a greater

right to possession than the actor is considered the one true owner. If that were the

case, then a husband could criminally trespass his wife from the home that he

purchased prior their marriage, even if she lives there with him. Since the

definition of ―owner‖ in the Penal Code is ambiguous when there are multiple

owners, and such a literal interpretation would lead to absurd results, we must do

8
as the Second Court of Appeals did and look at other laws on the same or similar

subjects pursuant to the Code Construction Act. The entire point of the Code

Construction Act is to ―describe and clarify common situations in order to guide

the preparation and construction of codes.‖ Tex. Gov’t. Code Sec. 311.003.

In fact, this Honorable Court has on several occasions turned to other laws

in order to interpret criminal statutes. While trying to determine whether a person

who was issued a speeding ticket was in ―custody‖ under the definition in Penal

Code section 38.01, this Court cited the Code Construction Act and went beyond

the definition of "custody" contained in the statute. Azeez v. State, 248 S.W. 3d

182, 189 (Tex. Crim. App. 2008). Because the term "present" as used in Texas

Rules of Appellate Procedure was somewhat ambiguous, this Court cited the Code

Construction Act and looked at other laws on the same or similar subjects,

specifically other statutes and common law. Carranza v. State, 960 S.W. 2d 76, 79

(Tex. Crim. App. 1998).

As it was entirely proper, and statutorily authorized, for the Second Court of

Appeals to interpret the term ―owner‖ by applying other similar laws, the Appellate

Court was not acting as a thirteenth juror. The State contends that the Fort Worth

Court of Appeals improperly acted a thirteenth juror because it applied principles

of law that were not supplied to the jury via the Trial Court’s Charge or the

evidence at trial. This argument fails as it forgets the distinct roles of judges and
9
jurors. In a jury trial, ―…the jury is the exclusive judge of the facts…‖ Tex. Code

of Crim. Pro. Sec. 36.13. The facts here are clear and undisputed. The legal

conclusions to be drawn from those facts, however, are what are in dispute. In

other words, this is a legal issue and not a factual one. As such, it is the

responsibility of the trial and appellate courts to determine this legal issue and not

the jury.

Furthermore, if appellate courts were not allowed to look at the evidence at

trial and determine if it was legally sufficient to support a conviction (as the

Second Court of Appeals did here), then why does the law allow for sufficiency

review? The State’s argument that an appellate court conducting a sufficiency

review is improperly acting as a thirteenth juror is contrary to the law.

Even if we were to adopt the State’s position that only the Penal Code

definition of ―owner‖ was applicable and exclusive, Appellant qualifies as an

owner. If an owner is a person with possession of the property, then Appellant

certainly qualifies. The term ―possession‖ is defined in the Penal Code as ―actual

care, custody, control, or management.‖ Tex. Pen. Code Sec. 1.07(a)(39).

Appellant was living at the property and had a key. He slept there the night before

and had been living there for months. He paid the utilities, rendering the place

habitable. He kept his belongings there. He was in possession of the property.

10
 Alternatively, even if Appellant is found to not have been in possession of

the property under the Penal Code’s definition, Appellant was still in constructive

possession of the apartment because he had the power to exercise control over the

apartment by possessing a key. As noted in Porter, constructive possession has not

been defined under Texas law. Porter v. State, 873 S.W.2d 729, 734 (Tex. App. –

Dallas 1994). In Porter, the Court turned to federal definitions as set forth by the

Fifth Circuit and concluded that even when an individual is not in actual physical

possession at the time of arrest, as long as the individual has ―actual ownership‖ or

a ―power to exercise control,‖ the individual is in constructive possession. Id. The

Court went on to specify that constructive possession is sufficient to establish

control in Texas. Id. at 735.

Furthermore, being in possession of a key has been deemed to reasonably

imply control. See Roberts v. State, 963 S.W.2d 894, 898-99 (Tex. App. –

Texarkana 1998) (―Roberts’ possession of a key . . . reasonably implies his control

. . .‖). Appellant lived in the apartment, and, as such, had a key to his residence.

Because Appellant had control and possession of the residence, he qualifies as an

owner pursuant to the Penal Code.

The Second Court of Appeals found that Appellant qualified as a tenant. It

is well settled that the ownership of a building may be laid in a tenant. Black v.

State, 505 S.W. 2d 821, 823 (Tex. Crim. App. 1974). He lived there, paid the
11
utilities there, had a key, and stored his belongings there. Furthermore, the

complainant testified that she did not intend to terminate his ability to live there.

Therefore, he was still a tenant and still qualified as an owner.

In short, the answer to the question posited by the State in Ground One is

that trial and appellate courts are not always required to look beyond the Penal

Code to determine who an ―owner‖ is, unless to do so would lead to an absurd

result, as is the case when there are multiple owners. In such a case, the definition

of ―greater right to possession‖ would be of paramount importance. However, the

Penal Code provides no definition for this term. Therefore, as is the case here, it

becomes necessary to look beyond the Penal Code to other laws on the subject.

As such, the Second District Court of Appeals was correct in its

determination to vacate the judgment of conviction for burglary of a habitation and

instead find Appellant guilty of only the lesser included offense of assault.

12
 APPELLANT’S RESPONSE TO STATE’S GROUND TWO

To qualify as ―entry without the effective consent of the owner,‖ how much
time must elapse after a victim revokes consent for her live-in boyfriend to
enter her home for his forcible entry to be deemed a burglary?

The State has posited the question of how much time must elapse after a

person revokes consent for a co-occupant to enter his or her home to be deemed a

burglary. Such a question assumes that consent was revoked in this case. This

assumption is incorrect. In this case, the victim testified that she and Appellant

had been living together and that she had locked him out previously, only to allow

him to return later. [3 RR 39]. As this was a prior occurrence between the two,

her revocation of his consent to be on the property needed to be more than merely

temporarily locking him out. Indeed, she testified at trial that she had no intention

of permanently evicting him or kicking him out. [4 RR 12, 16]. She told the

officers at the scene that Appellant ―lived there.‖ [4 RR 17]. One of the arresting

officers even testified that Ms. Raglin simply locking the door did not terminate

Appellant’s consensual occupation of the apartment. [4 RR 51]. The officer was

absolutely right. In this case, Ms. Raglin never communicated to Appellant that he

was not welcome or that he could not come in. She locked the deadbolt, and did

not answer the door. This does not constitute revocation of her consent for

Appellant to be there. Indeed, the Second Court of Appeals concluded that there

was ―no evidence of absence of owner’s consent‖ and ―no evidence that

13
Appellant’s tenancy was terminated before his arrest for this incident.‖ Morgan v.

State, 2015 Tex. App. LEXIS 5411, at *4, *6.

The State’s argument ignores this plain and undisputed fact: Appellant lives

there. This is his home. He is a co-owner as was addressed in the previous

section. One cannot simply lock the door and terminate a person’s ability to be in

his or her home. Furthermore, when interpreting a statute, ―it is presumed that…a

just and reasonable result is intended.‖ Tex. Gov’t. Code Sec. 311.021(3). If we

take the State’s logic (someone with a greater right to possession can terminate a

person’s ability to enter their home) out to its logical conclusion, then the

following situation can and will occur. A husband purchases a home prior to his

marriage. It is his separate property, and he has a greater right to possession than

the person that he later marries. After an argument, his wife leaves for work and

he locks the door that she has no key to. She climbs in through a window to regain

entry. Is that burglary? It is, if we follow the State’s argument out to its logical

conclusion.

The answer to the State’s question of how much time must elapse is

inappropriate here because consent was never revoked. For someone to revoke a

person’s right to enter the place where they legally live, there needs to be

something more than a mere locking of the door. The Houston Court of Appeals,

First District has addressed this issue in Krause v. State, 243 S.W. 3d 95 (Tex.
14
App.—Houston [1st Dist.] 2007, pet. ref’d.). In Krause, the defendant was

convicted of the offense of possession of child pornography. He moved to

suppress the pornography, claiming that the evidence was obtained illegally by a

person who did not own defendant’s trailer and did not have a key. In fact, the

person who found the evidence in Krause climbed through the window in order to

gain entry into the trailer. The trial court denied the motion, and Krause appealed.

The First Court of Appeals affirmed the trial court. Specifically, the First Court

found that despite the fact that the person who obtained the evidence was not an

owner, had no key, and had to climb through a window to enter the trailer, he

qualified as an owner because he lived there. Just as that person was not acting

illegally by entering a locked trailer through a window, neither was Appellant for

entering a locked door by kicking it in.

The State contends that Appellant’s effective consent to enter had been

revoked. The State does not offer any case law with similar facts, i.e., where there

are co-owners or cotenants, to back up this claim. Appellant knows of no Texas

case that exists to support this claim.

The State then turns its argument to what is lawful after effective consent

has been revoked. In support thereof, the State offers cases concerning possession

of property in burglary cases. Again, none of the cases cited have co-owners or

cotenants in the fact patterns. Therefore, the cases are not material to the topic at
15
hand. The State relies specifically on Dominguez, and the determination of

possession needing to be made ―prior to and not during the break-in.‖ Dominguez

v. State, 355 S.W.3d 918, 923 n.2 (Tex. App. – Fort Worth 2011, pet. ref’d). There

are two issues in the State’s reliance on this case. First, under the State’s theory,

there is only one true owner so Appellant’s actions to get inside the apartment must

have been a break-in. This is simply untrue and there’s no evidence in the record

to support this assertion. Second, if determination of possession is to be made

prior to and not during a ―break-in,‖ then Appellant surely qualifies as an owner.

At no point during the day of the offense was he unwelcome in his own home until

he was arrested and taken into custody.

The State also relies on Mack v. State, 928 S.W.2d 219 (Tex. App. – Austin

1996), and its assertion that possession and control of the property is to be

determined ―on the date of the offense.‖ Mack, 928 S.W.2d at 224 (emphasis in

original). In Mack, the Court specified that ―the greater right of possession

doctrine does not credit rights that are unrealized.‖ Id. As such, Appellant must be

considered an owner under this framework. His realized rights earlier that very

day were those of a co-owner and cotenant with full access, possession, and control

over the property.

In short, Appellant qualifies as an ―owner‖ is this case. Even if he does not

qualify as an owner, he had effective consent to be in the apartment as he was
16
allowed to live there. Furthermore, in order to revoke that consent, his legal ability

to live there would have to at least be communicated to him. The only evidence at

trial on this issue was the officer’s testimony that Regina’s locking of the door did

not terminate Appellant’s ability to live there. There is no set amount of time that

must elapse after a person revokes consent for her live-in boyfriend to enter her

home for his forcible entry to be deemed a burglary. However, there must actually

be revocation of the consent, and the live-in boyfriend must not also be a co-owner

or co-tenant.

As such, the Second District Court of Appeals was correct in its

determination to vacate the judgment of conviction for burglary of a habitation and

instead find Appellant guilty of only the lesser included offense of assault.

17
 PRAYER FOR RELIEF

WHERFORE, PREMISES CONSIDERED, Appellant prays that this

Honorable Court uphold and affirm the judgment and opinion of the Second

District Court of Appeals and find the evidence legally insufficient to support a

conviction against Appellant for burglary of a habitation.

Respectfully Submitted,

/s/ Christopher Abel
Christopher Abel
Attorney for Appellant
Bar No. 24043516
2609 Sagebrush Drive
Suite 202
Flower Mound, Texas 75028
972-584-7837
972-947-3813(fax)
chris@flowermoundcriminaldefense.com

CERTIFICATE OF COMPLIANCE

Attorney for Appellant certifies that this Brief on the Merits contains a word
count of 4,567, as computed by the software program Microsoft Word, which was
used to prepare the document.

/s/ Christopher Abel
Christopher Abel

18
 CERTIFICATE OF SERVICE

I certify that a true and correct copy of the forgoing Brief on the Merits was

sent by U.S. First Class Mail, postage paid, to counsel for the State of Texas, Yael

Zbolon at 1450 East McKinney Street, Suite 3100, Denton, Texas. 76209 and to

State Prosecuting Attorney, Lisa McMinn at Post Office Box 13046, Austin, Texas

78711-3046 on this the 9th day of November, 2015.

/s/ Christopher Abel
Christopher Abel

19