ACCEPTED
03-15-00239-CR
8034273
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/1/2015 2:06:38 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00239-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 12/1/2015 2:06:38 PM
JEFFREY D. KYLE
Clerk
********
TRACY LARANCE GORDON
VS.
THE STATE OF TEXAS
********
ON APPEAL FROM THE 264th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause No. 71,325
******
STATE’S BRIEF
******
HENRY GARZA
DISTRICT ATTORNEY
BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
Oral Argument Not Requested
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TABLE OF CONTENTS
ITEM PAGE
Index of Authorities …………………………………………………………………. 3
Statement Regarding Oral Argument ………………………………………… 4
Statement of the Case ………………………………………………………………. 4
Statement of Facts …………………………………………………………………… 5
Summary of State’s Argument ………………………………………………….. 7
Argument and Authorities ……………………………………………………….. 7
First Issue on Appeal ……………………………………………………… 7
EVIDENCE SUFFICIENT TO SUPPORT TRIAL
COURT’S FINDING OF A HABITATION?
Standard of Review ………………………………………………. 8
Application and Analysis ………………………………………. 9
Prayer ……………………………………………………………………………………. 14
Certificate of Compliance with Rule 9 ………………………………………. 15
Certificate of Service ………………………………………………………………. 15
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INDEX OF AUTHORITIES
CASES PAGE
Blankenship v. State, 780 S.W.2d 198 ……………………………………… 9-11, 13
(Tx. Cr. App. 1988) op. on rehg
Brooks v. State, 323 S.W. 3d 893 (Tx. Cr. App. 2010) ………………….. 8
Hicks v. State, 204 S.W.3d 505 ………………………………………………….. 11-12
(Tx. App. Amarillo 7th Dist. 2006 no pet.)
Hollander v. State, No. 09-05-448-CR, ………………………………………. 12
2006 Tex. App. LEXIS 8125 (Tx. App. Beaumont 9th
Dist. 2006 rev. ref.), not designated for publication).
Isassi v. State, 330 S.W.3d 633 (Tx. Cr. App. 2010) ……………………. 8
Jackson v. Virginia, 443 U.S. 307 (1979) …………………………………… 8-9, 13
Jones v. State, 532 S.W. 2d 596 (Tx. Cr. App. 1976) …………………… 13
Williams v. State, 235 S.W. 3d 742 (Tx. Cr. App. 2007) ……………… 8
OTHER
Texas Penal Code
Section 30.01(1) …………………………………………………………… 9
Section 30.01(2) …………………………………………………………… 9
Section 30.02 ………………………………………………………………… 9
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STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The Appellant, Tracy Larance Gordon, was charged by indictment
with the offense of burglary of a habitation. (CR-4). The State filed its
Amended Notice to Enhance Punishment Range alleging in paragraphs
two through six previous felony convictions for the purpose of
enhancement of punishment. (CR-25).
The Appellant waived a trial by jury and entered a plea of not
guilty to the offense charged before Judge Martha J. Trudo. (CR-35; RR5,
6). At the conclusion of the evidence the trial court found the Appellant
guilty as charged in the indictment. (CR-50; RR6-71).
The Appellant entered pleas of true to the allegations in
paragraphs one, two, three, four, and six of the amended notice of
enhancement, the State having waived and abandoned paragraph five.
(RR6-73). The court found the enhancement allegations true and
assessed punishment at life in the Texas Department of Criminal Justice.
(CR-50; RR7-41).
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The Appellant gave timely notice of appeal (CR-43) and the trial
court certified his right to do so. (CR-42).
STATEMENT OF FACTS
The Appellant does not challenge the sufficiency of the evidence
to find him guilty of the offense of burglary, but only whether the trial
court erred in finding the building burglarized was a habitation.
The house in this case was a 4 bedroom, 2½ bath residential
structure that included a kitchen, formal and informal dining rooms, a
study, a living area with fireplace, and game room and a 2 car attached
garage. (RR5-8). The sole purpose of the structure was for use as a
residence and, in fact, use for any other purpose was prohibited in the
development. (RR5-9).
The owners, Ms. Bourgeois and her husband, had resided in that
structure from June of 2008 until March of 2011, when they were
transferred to Alabama by the military. (RR5-8, 10). From March of
2011 until August of 2012 the owners had rented it as a residence and it
was so utilized by the renters during that time. (RR5-10, 11). When the
renters moved the owners decided to place the home on the market for
sale and listed it with a realtor. (RR5-11).
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The realtor, Franklin Adams, described the house as a large 2-
story residence with multiple bedrooms and bathrooms that was
designed and adapted for overnight accommodation and located in an
area zoned only for residential usage. (RR6-28).
When the renters left all the furniture was moved out (RR5-21,
22), however, appliances were left in the kitchen, including a large
refrigerator, stove, and dishwasher. (RR5-12). The owners had the
utilities turned off by the power and water companies. (RR5-12, 13).
They had the lawn carried for every two weeks and the relator
frequently checked on the residence pending sale. (RR5-17, 18). The
house was certainly neither unkempt nor abandoned. (RR5-17). The
owners continued to receive mail at the house until February of 2013
and regarded it as their residence. (RR5-26, 27). A for sale, rent or lease
sign was placed on the front lawn. (RR5-11).
The utilities were merely shut off by calls to the providers in
order to avoid high summer bills. (RR5-27). There was nothing wrong
with them (RR5-13) and could have been reactivated within hours by a
simple call to the companies involved. (RR5-18; RR6- 29, 33).
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For approximately 7 months, between the listing of the house for
sale and the commission of this offense on March 12, 2013, the
residence was not physically occupied. (RR5-13, 23).
SUMMARY OF STATE’S ARGUMENT
The structure was intended for use as a residence and was
designed and adapted for the overnight accommodation of persons. It
had been consistently used as a residence until listed for sale some
months prior to the burglary. It was wired and plumbed for utilities
which were readily available. It contained multiple bedrooms, living
areas, bathrooms, and a kitchen and was equipped with working
appliances. There was sufficient evidence from which the trial court, as
fact finder, could reasonably find that it was a habitation as defined by
statute.
ARGUMENT AND AUTHORITIES
First Issue on Appeal
Was the evidence sufficient to support the finding of the trial
court that the structure burglarized was a habitation?
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Standard of Review
Due process of law requires that the State prove, beyond a
reasonable doubt, every element of the offense charged in the
indictment. Jackson v. Virginia, 443 U.S. 307, 313 (1979). In reviewing
the sufficiency of the evidence to support the conviction the court must
consider all of the evidence in the case in the light most favorable to the
verdict in order to determine whether, based upon the evidence and
reasonable inferences therefrom, a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt.
Brooks v. State, 323 S.W. 3d 893, 899. (Tx. Cr. App. 2010).
In reviewing the evidence in the light most favorable to the
verdict, the court must presume that the trier of fact resolved conflicts
in the testimony, weighed the evidence, and drew reasonable inferences
from that evidence in a manner that supports the verdict. Jackson at
318. The court must consider only whether the fact finder reached a
rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tx. Cr. App. 2010).
The weight and credibility of the evidence is solely for the fact
finder and the court will not re-evaluate those matters nor substitute its
judgment for that of the fact finder. Isassi at 638; Williams v. State, 235
S.W.3d 742, 750 (Tx. Cr. App. 2007).
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Whether the evidence was sufficient to establish that a structure
is a habitation must be determined under the Jackson v. Virginia
standard and the decision of the fact finder will be overturned on appeal
only if the Appellant can show that no reasonable fact finder could have
found the place to be a habitation. Blankenship v. State, 780 S.W.2d 198,
209, 210 (Tx. Cr. App. 1988), op. on rehearing.
Application and Analysis
Section 30.02 of the Texas Penal Code provides that burglary of a
building is a state jail felony, while burglary of a habitation is a second
degree felony. Section 30.01(1) defines “habitation” as a structure or
vehicle that is adapted for overnight accommodation of persons.
Section 30.01(2) defines “building” as any enclosed structure intended
for use or occupation as a habitation or for some purpose of trade,
manufacture, ornament or use.
On rehearing in Blankenship the Court of Criminal Appeals
explored the question of the sufficiency of the evidence to support a
finding that a structure was a habitation. The evidence in that case was
that the structure was a rent house on the same tract of land, and about
300 yards away from, the victim’s residence. It had not been rented or
occupied for about two years at the time of the burglary. It was wired
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for electricity, but the power was turned off and there was no meter.
Water was available but turned off in the yard. There were some
belongings stored in the house and it was equipped with two window
air conditioner units. Blankenship at 206. Viewing the evidence, as it
must, in the light most favorable to the verdict of the fact finder, the
Court of Criminal Appeals held that evidence was sufficient to support
the finding that the structure was a habitation. The court noted that
what makes a structure suitable or unsuitable for overnight
accommodation is a complex and subjective determination subject to
the fact finder’s determination. Thus such factors as whether the
structure contained bedding, furniture, utilities, or other belongings
common to a residential structure; and whether it was of such a
character that it was probably intended to accommodate persons
overnight, such as a house, apartment, or the like, are relevant, but none
are essential or necessarily dispositive. Blankenship at 209.
The Court of Criminal Appeals held that the following evidence
was sufficient to support the finding that the structure was a habitation:
(1) the house was once lived in by the complainant; (2) it was rented
from time to time; (3) it has a living room and two bedrooms; (4) it was
wired for electricity and water was readily available; (5) two window
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air conditioners were installed; (6) it was only 300 yards from the
complainant’s residence; (7) it was located along the only driveway
giving access to the complainant’s residence; (8) it was used to store
some of the complainant’s belongings; (9) the owner of the house
testified that it was adapted for the overnight accommodation of
persons. From these facts a reasonable trier of fact could have found
that the structure was a habitation as defined in the statute. Blankenship
at 209.
In Hicks v. State, 204 S.W.3d 505 (Tx. App. Amarillo 7th Dist. 2006,
no pet), the Court of Appeals applied Blankenship to evidence that the
house in question was vacant and had been vacant for several weeks.
The owner described it as a home that it was meant for someone to live
in, with a bathroom, kitchen and roof. It was wired for electricity and
plumbed for water and gas. The furnishings had been removed. The
owner was attempting to re-let the house at the time of the burglary.
The court, citing Blankenship, held that the fact that the house was
vacant and lacked furnishings, alone, did not render it something other
than a habitation. It also noted that the owner had characterized the
house as a habitation that was “meant to be lived in” and that it was
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wired and plumbed for utilities, and had the usual rooms of a habitation.
The evidence as to a habitation was sufficient. Hicks at 507-08. See also
Hollander v. State, No. 09-05-448-CR, 2006 Tex. App. LEXIS 8125 (Tx.
App. Beaumont 9th Dist. 2006 rev. ref.), not designated for publication.
(Holding that evidence that structure was a mobile home used as
residential rental property that was unoccupied and without furniture
at the time of the burglary, but had hookups for water and electricity,
was sufficient to establish it was a habitation).
In this case the structure was a 4 bedroom, 2½ bath home in a
residential area with kitchen, living room, game room, double garage,
and study. It was surrounded by other residences. The owner and the
realtor testified that it was intended for use as a residence and was
adapted for the overnight accommodation of persons. It was wired for
electricity and plumbed for water. These utilities could be turned on in
a matter of hours by request to the providers. There was no furniture
but there were appliances in the kitchen. The only use permitted for the
structure in that residential area was as a residence for persons. The
owner had occupied the structure for years until being transferred and
renters had lived there afterwards. It had only been vacant for about
seven months while attempts were made to sell, rent or lease it to
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persons to be used as their residence. There was clearly evidence from
which the trial court, as the fact finder, could reasonably have found the
house to be a habitation as that term is defined by statute.
The Appellant argues that, in order to be a habitation, the utilities
must be connected and functional and that there must be furniture in
the bedroom and living room and bathroom. He states that the absence
of these items alone prohibits the structure from being a habitation and
urges that vacancy over a long period of time would support that
conclusion. See Appellant’s Brief at pg. 7. The Appellant cites Jones v.
State, 532 S.W.2d 596 (Tx. Cr. App. 1976), which held that a house that
was vacant and unfurnished was not within the statutory definition of
“habitation”, and Blankenship as supporting his proposition. Apparently
he relies upon the original opinion in Blankenship rather than the
opinion on rehearing which reversed that first opinion. Furthermore, in
Blankenship the Court of Criminal Appeals expressly overruled Jones
and its prodigy because it did not comply with the Jackson standard as
to sufficiency of evidence as to whether or not the structure was a
habitation; and erroneously stepped into the role of subjective fact
finder creating a definition of habitation that was confusing and not in
harmony with the statutory definition. Blankenship at 209-10.
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Contrary to the Appellant’s assertion none of the factors he cites
necessarily make the trial court’s determination erroneous. The test is
not whether those specific factors were not present, but rather whether
the trial court could rationally decide that the house was a habitation
from the evidence presented. The trial court’s determination is entitled
to great deference.
PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA
District Attorney
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
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CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Brief is in compliance with Rule 9
of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 1,979 words.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, Troy C. Hurley, Counsel for Appellant, by electronic
transfer via Email, addressed to him at: troychurl@aol.com on this 1st
day of December, 2015.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
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