ACCEPTED
06-14-00222-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
2/25/2015 2:34:30 PM
DEBBIE AUTREY
CLERK
No. 06-14-00222-CR
____________________________________________
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE 2/26/2015 11:52:00 AM
DEBBIE AUTREY
SIXTH COURT OF APPEALS Clerk
AT TEXARKANA, TEXAS
____________________________________________
TAMMY KAY TAYLOR,
Appellant
v.
THE STATE OF TEXAS,
Appellee
____________________________________________
APPEAL FROM
TH
THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
TRIAL COURT NO. 1423993
____________________________________________
APPELLANT’S BRIEF
____________________________________________
Wade A. Forsman
P.O. Box 918
Sulphur Springs, TX 75483-0918
903.689.4144, f. 903.689.7001
wade@forsmanlaw.com
Attorney for Appellant
Tammy Kay Taylor
ORAL ARGUMENT REQUESTED
Appellant’s Brief
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list of all
parties to the trial court’s judgment and the names and addresses of all trial and
appellate counsel:
Appellant Appellant’s appellate counsel
Tammy Kay Taylor Wade A. Forsman
P.O. Box 918
Sulphur Springs, TX 75483-0918
903.689.4144 telephone
903.689.7001 facsimile
wade@forsmanlaw.com
Appellant’s trial counsel
Ron Ferguson
Roland M. “Ron” Ferguson, Jr.
1804 Woodbridge Drive
Sulphur Springs, TX 75482
903.335.8412 telephone
Appellee Appellee’s trial & appellate counsel
The State of Texas Will Ramsay
Hopkins County District Attorney
114 Main Street
Sulphur Springs, TX 75482
903.885.0641 telephone
903.885.0640 facsimile
willramsay@suddenlinkmail.com
Appellant’s Brief Page i
TABLE OF CONTENTS
Identity of Parties and Counsel ……………………………………………………. i
Table of Contents ……………………………………………………………… ii
Index of Authorities …………………………………………………………… iii
Statement of the Case …………………………………………………………….. 1
Issues Presented …………………………………………………………………... 2
POINT OF ERROR NO. 1: The trial court erred in admitting testimony
concerning an extraneous offense which the State failed to prove
beyond a reasonable doubt as required by Higginbotham v. State, 356
S.W.3d 584 (Texarkana 2011, pet. ref’d).
POINT OF ERROR NO. 2: The trial court erred in making a “Hardesty
inference” because the allegedly stolen property was found in a place
where at least two persons other than Appellant had an equal right and
facility of access.
Statement of Facts ……………………………………………………………….. 3
Summary of the Argument………………………………………………………. 5
Argument …………………………………………………………………............ 6
Prayer …………………………………………………………………………….. 9
Certificate of Word Count ………………………………………………………. 10
Certificate of Service……………………………………………………………...10
Appellant’s Brief Page ii
INDEX OF AUTHORITIES
Cases
Blevins v. State,
6 S.W.3d 566 (Tex. App. – Tyler 1999, pet. ref’d)…………………………. 9
George v. State,
890 S.W.2d 73 (Tex. Crim. App. 1994)…………………………………….. 7
Hardesty v. State,
656 S.W.2d 73 (Tex. Crim. App. 1983)…………………………………….. 8
Higginbotham v. State,
356 S.W.3d 584 (Texarkana 2011, pet. ref’d)……………………………… 7
Pardee v. State,
2012 Tex. App. LEXIS 6823
(Tex. App. – Texarkana Aug. 16, 2012, pet. ref’d)……………………….. 8,9
Poncio v. State,
185 S.W.3d 904 (Tex. Crim. App. 2006)…………………………………….8
Statutes
TEX. PENAL CODE §31.03(c)(1)…………………………………………………. 6,7
Court Rules
Tex. R. App. P. 9.4(i)(3) …………………………………………………………. 9
TEX. R. APP. P. 38(a) ……………………………………………………………… i
Appellant’s Brief Page iii
No. 06-14-00222-CR
____________________________________________
IN THE
SIXTH COURT OF APPEALS
AT TEXARKANA, TEXAS
____________________________________________
TAMMY KAY TAYLOR,
Appellant
v.
THE STATE OF TEXAS,
Appellee
____________________________________________
APPEAL FROM
TH
THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
TRIAL COURT NO. 1423993
____________________________________________
APPELLANT’S BRIEF
____________________________________________
STATEMENT OF THE CASE
This is an appeal from a conviction for burglary of a habitation, a second-
degree felony, for which the trial court sentenced Appellant to fifteen (15) years of
confinement in the Institutional Division of the Texas Department of Criminal
Justice (“TDCJ”).
Appellant’s Brief Page 1
ISSUES PRESENTED
POINT OF ERROR NO. 1: The trial court erred in admitting testimony
concerning an extraneous offense which the State failed to prove
beyond a reasonable doubt as required by Higginbotham v. State, 356
S.W.3d 584 (Texarkana 2011, pet. ref’d).
POINT OF ERROR NO. 2: The trial court erred in making a “Hardesty
inference” because the allegedly stolen property was found in a place
where at least two persons other than Appellant had an equal right and
facility of access.
Appellant’s Brief Page 2
STATEMENT OF FACTS
Mr. Jitendra Patel and his wife Ms. Jaya Patel have owned and operated a
hotel in Sulphur Springs, Texas called the Royal Inn since February 1992 (Vol. 3; p.
34; l. 12, 21-24). The Patels also live there (Vol. 3; pp. 37-38; l. 15-3).
Beginning on October 22, 2013, Mr. Patel employed the defendant, Ms.
Tammy Kay Taylor, to work at the front desk (Vol. 3; p. 36; l. 15, 21-22)(Vol. 3; p.
87; l. 12-15).
Mr. Patel went to India on December 3, 2013 (Vol. 3; p. 36; l. 25), and Ms.
Patel went to India on December 20, 2013 (Vol. 3; p. 87; l. 20). Mr. Patel told his
employees, including Taylor, that he was going to be gone until January 17, 2014
(App. 3; p. 37; l. 1-14).
Some time in December 2013 Taylor met Ms. Wanda Henderson. There was
an ice storm at that time and Henderson, who had been taking care of an individual
named Mr. Ron Hansen for about 10 years, put Hansen up at the Royal Inn because
Hansen’s home had no heat (Vol. 3; p. 122; l. 17-23). Henderson met Taylor while
she was checking Hansen out of the Royal Inn and taking him back home (Vol. 3; p.
123-24; l. 13-20). It was at that time when Henderson broached the subject of Taylor
and her husband working as live-in caretakers for Hansen, to which Taylor expressed
an interest.
Appellant’s Brief Page 3
Sometime in January 2014, Taylor, who was accompanied by her husband,
drove to Hansen’s home in a pickup truck and spent two days “unload[ing] things”
there (Vol. 3; p. 125; l. 1-18). According to Henderson, “On the second day when
they [i.e., Taylor and her husband] unloaded the suitcases, she [i.e., Taylor] said they
would be back Saturday to start the job [as live-in caretaker]” (Vol. 3; p. 134; l. 15-
17).
When the Patels returned from India on January 17, 2014, they discovered
that their dwelling place at the Royal Inn was in “chaos” (Vol. 3; p. 39; l. 21-25)
(Vol. 3; p. 44; l. 11-15)(Vol. 3; pp. 88-89; l. 2-7, 23-19). Mr. Patel discovered that
the bedrooms, as well as the back office, living room, and kitchen, had all been gone
through or burglarized (Vol. 3; p. 40 l. 5-8).
Upon his return on January 17, 2014, Mr. Patel believed Taylor was still one
of his employees (App. 3; p. 41; l 21-24). However, Taylor was not at the front desk
(Vol. 3; p. 41; l. 25), and Mr. Patel never saw Taylor at the Royal Inn again (Vol. 3;
pp. 66-67; l. 25-2), although Taylor informed Mr. Patel by telephone that she was
out of town attending to some non-work-related matters (Vol. 3; p. 42; l. 3-10).
Taylor was later indicted for burglary of a habitation, a second-degree felony
(Vol. 3; p. 8; l. 9-10)(Vol. 3; p. 25; l. 4-23). Trial was held on October 15, 2014 (Vol.
3; p. 1). Trial was before the Court instead of a jury (Vol. 3; p. 8; l. 11-17).
Appellant’s Brief Page 4
At trial, the State called an individual named Mr. Rupinderit Singh as a
witness (Vol. 3; p. 181; 1; 7-8). Singh testified that he owns a convenience store in
Sulphur Springs named Family Mart (Vol. 3; p. 182; l. 15-18). Singh also testified
that Taylor worked there (Vol. 3; p. 183; l. 20), and that Taylor had stolen money
from that business (Vol. 3; p. 183; l. 22-23).
The trial court found Taylor guilty of burglary of a habitation (Vol. 3; p. 216;
l. 1). On November 10, 2014, the trial court sentenced Taylor to 15 years
confinement with TDCJ (Vol. 4; pp. 20-21; l. 22-8).
SUMMARY OF THE ARGUMENT
POINT OF ERROR NO. 1: The trial court erred in admitting testimony
concerning an extraneous offense which the State failed to prove
beyond a reasonable doubt as required by Higginbotham v. State, 356
S.W.3d 584 (Texarkana 2011, pet. ref’d).
POINT OF ERROR NO. 2: The trial court erred in making a “Hardesty
inference” because the allegedly stolen property was found in a place
where at least two persons other than Appellant had an equal right and
facility of access.
Appellant’s Brief Page 5
ARGUMENT
POINT OF ERROR NO. 1: The trial court erred in admitting testimony
concerning an extraneous offense which the State failed to prove
beyond a reasonable doubt as required by Higginbotham v. State, 356
S.W.3d 584 (Texarkana 2011, pet. ref’d).
Taylor was indicted for burglary of a habitation. TEX. PEN. CODE §30.02. To
be found guilty, the State had to prove that Taylor entered the habitation of another
– in this case, the habitation of Mr. and Mrs. Patel -- with the intent to commit a
felony there – in this case, theft. Id. at §30.02(a)(1).
Theft is defined in Section 31.03 of the Penal Code. Subsection (a) states, “A
person commits an offense if [s]he unlawfully appropriates property with intent to
deprive the owner of property.” Subsection (b)(1) states, “Appropriation of property
is unlawful if it is without the owner’s effective consent.”
Subsection (c)(1) is what is at issue here. Subsection (c)(1) states that for
purposes of defining the word “appropriation” in subsection (b), “[E]vidence that
the actor has previously participated in recent transactions other than, but similar to,
that which the prosecution is based is admissible for the purpose of showing
knowledge or intent and the issues of knowledge or intent are raised by the actor's
plea of not guilty[.]”
What TEX. PEN. CODE §31.03(c)(1) does not do is identify the level or
quantum of extraneous offense evidence necessary for purposes of Subsection (c)(1).
Appellant’s Brief Page 6
Thus, the statute does not say whether an actual conviction is necessary, whether
mere gossip or innuendo is necessary, or whether something in between is necessary.
Fortunately, this Court of Appeals addressed and answered this question in
Higginbotham v. State, 356 S.W.3d 584 (Texarkana 2011, pet. ref’d). That case was
brought by a certain Mr. Billy R. Higginbotham, Jr., who appealed his conviction
for theft. In that case, this Court of Appeals was called upon to resolve the following
dispute:
Higginbotham argues that the trial court erred in admitting testimony
concerning an extraneous offense, which the State failed to prove
beyond a reasonable doubt. The State responds that neither TEX. PENAL
CODE ANN. § 31.03(c)(1) nor TEX. R. EVID. 404(b) requires such
extraneous offenses to be proven beyond a reasonable doubt. . . The
State claims it was not obligated to prove the extraneous offenses
beyond a reasonable doubt.
Id. at 590-91. The dispute in Higginbotham arose in pertinent part from the State’s
proffer of a witness named Randall Allen York, who testified about similar events –
namely, construction work – to those forming the basis of Higginbotham’s theft
conviction. This Court then ruled:
Although . . . TEX. PENAL CODE ANN. § 31.03(c)(1) . . . [does not]
explicitly provide that extraneous evidence at the guilt/innocence phase
must be proven beyond a reasonable doubt, it is well-established that
such a requirement is implied. See, e.g., George v. State, 890 S.W.2s
73, 76 (Tex. Crim. App. 1994) (extraneous offenses introduced at
guilt/innocence must be proven beyond a reasonable doubt).
Appellant’s Brief Page 7
We agree with Higginbotham that the extraneous offense of theft . . .
was not proven beyond a reasonable doubt. The trial court erred in
admitting York's testimony.
Id. at 591-92 (emphasis added). Similarly here, there is no finding from the trial
court that Taylor had committed theft at the Family Mart. Nor is there any evidence
that Taylor was ever convicted, indicted, or even arrested for any theft from Family
Mart.
POINT OF ERROR NO. 2: The trial court erred in making a “Hardesty
inference” because the allegedly stolen property was found in a place
where at least two persons other than Appellant had an equal right and
facility of access.
In Pardee v. State, 2012 Tex. App. LEXIS 6823, *4 (Tex. App. – Texarkana
Aug. 16, 2012, pet. ref’d), this Court wrote, “It is well established that when a
suspect is found in possession of recently-stolen property and he fails to provide a
reasonable explanation for his possession of that property, the fact-finder is
permitted to draw an inference of guilt.” Id. at *4 (citing Poncio v. State, 185 S.W.3d
904, 905 (Tex. Crim. App. 2006); Hardesty v. State, 656 S.W.2d 73, 76-77 (Tex.
Crim. App. 1983)).
Unfortunately for the State, that does not end the analysis. That is because this
Court went on to state the following in Pardee:
No inference of guilt can be raised where police found the stolen
property in a place where others have an equal right and facility of
access.
Appellant’s Brief Page 8
Pardee, 2012 Tex. App. at *4 (emphasis added)(citing Blevins v. State, 6 S.W.3d
566, 569-70 (Tex. App. – Tyler 1999, pet. ref’d)).
In this case, the evidence is uncontroverted that at least two other individuals
– Hansen and Henderson – had access that, at a minimum, was equal to Taylor’s.
PRAYER
WHEREFORE, premises considered, Appellant, Tammy Kay Taylor,
respectfully requests that the judgment of the trial court be reversed and remanded
for new trial, and/or for such other and further relief to which he may establish
himself entitled.
Respectfully submitted,
By: __/s/ Wade A. Forsman_
Wade A. Forsman
State Bar No. 07264257
P.O. Box 918
Sulphur Springs, TX 75483-0918
903.689.4144 East Texas
972.499.4004 Dallas/Fort Worth
903.689.7001 Facsimile
wade@forsmanlaw.com
Attorney for Appellant
Tammy Kay Taylor
Appellant’s Brief Page 9
CERTIFICATE OF WORD COUNT
Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 2,190 words.
__/s/ Wade A. Forsman_
Wade A. Forsman
CERTIFICATE OF SERVICE
This is to certify that on February 25, 2015, I served a true and correct copy
of the above and foregoing Appellant’s Brief by email on Will Ramsay, District
Attorney, at 114 Main Street, Sulphur Springs, Texas 75482.
__/s/ Wade A. Forsman_
Wade A. Forsman
Appellant’s Brief Page 10