Jonathan Lee Fehr v. State

ACCEPTED
03-15-00231-CR
6570243
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/19/2015 4:30:45 PM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-15-00231-CR

_________________________________________________
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
IN THE COURT OF APPEALS 8/19/2015 4:30:45 PM
FOR THE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE
AUSTIN DIVISION Clerk
_________________________________________________

JONATHAN LEE FEHR §
§
v. §
§
THE STATE OF TEXAS §

_______________________________________________

APPELLANT’S BRIEF
_______________________________________________

Justin Bradford Smith
Texas Bar No. 24072348
Harrell, Stoebner, & Russell, P.C.
2106 Bird Creek Drive
Temple, Texas 76502
Phone: (254) 771-1855
FAX: (254) 771-2082
Email: justin@templelawoffice.com

ATTORNEY FOR APPELLANT

ORAL ARGUMENT REQUESTED
1
 IDENTITY OF PARTIES AND COUNSEL

Appellant
Jonathan Lee Fehr

Appellant’s Counsel
Justin Bradford Smith
Harrell, Stoebner, & Russell, P.C.
2106 Bird Creek Drive
Temple, Texas 76502
Phone: (254) 771-1855
FAX: (254) 771-2082
Email: justin@templelawoffice.com

Appellant’s Trial Counsel
Richard D. Mock
Trey Brown
400 South Main
Burnet, Texas 78611
Telephone: 512-756-2931
Fax: 512-756-2933
Email: trey@mockandbrown.com

Appellee
The State of Texas

Appellee’s Trial Counsel
Anthony Dodson
Llano County Assistant District Attorney
P.O. Box 725
Llano, Texas 78639
Telephone: (325) 247-5755
Fax: (325) 247-5274

Appellee’s Appellate Counsel
Gary W. Bunyard
Llano County Assistant District Attorney
Address, Phone, and Fax Same As Above
Email: g.bunyard@co.llano.tx.us

2
 TABLE OF CONTENTS

Identity of Parties and Counsel…………………………..………………………... 2

Table of Contents……………………………………….………………………..3-5

Index of Authorities…………………………………….………………………..6-8

Statement of the Case……………………………………….……………………...9

Issues Presented….……………..………....…………………….………………….9

ISSUE ONE: The evidence is legally insufficient to support Appellant’s
conviction for burglary as the principal actor because there is
no evidence that, by his own conduct, he entered Shane
Pope’s habitation………………………………………….....9

ISSUE TWO: The evidence is legally insufficient to support Appellant’s
conviction for burglary under the law of parties because there
is no evidence that Brittany Anderson entered Shane Pope’s
residence with intent to commit theft, that she in fact
committed or attempted to commit theft when she entered the
residence, or that there was an agreement with Appellant
before the burglary to commit the burglary.……..…………..9

Statement of Facts…………………………………..…………………………10-18

Summary of the Argument……………………………..……………………...18-19

ISSUE ONE: The evidence is legally insufficient to support Appellant’s
conviction for burglary as the principal actor because there is
no evidence that, by his own conduct, he entered Shane
Pope’s habitation…………………………………………...18

Argument…………………………………………………………………........20-30

Standard of Review…………………….…...…………………………………….20

Law of Burglary…………………………………………………………………...21

3
Application………………………………………………..…………………...21-30

1. Appellant did not enter Pope’s habitation…………………………...21-22

2. Red Herrings: the Carport and the Television……………………...22-30

A. The Carport is not a Habitation or Part of a Habitation….………22-29

B. Nothing shows Appellant himself participated in removing the
television from Pope’s residence, whenever that occurred……...29-30

Conclusion………………………………………………………………………...30

Summary of the Argument…………………………………………………….30-32

ISSUE TWO: The evidence is legally insufficient to support Appellant’s
conviction for burglary under the law of parties because there
is no evidence that Brittany Anderson entered Shane Pope’s
residence with intent to commit theft, that she in fact
committed or attempted to commit theft when she entered the
residence, or that there was an agreement with Appellant
before the burglary to commit the burglary.……..…………30

Argument………………………………………………………………………32-46

Standard of Review……………………………………………………………32-33

Law of Burglary and Law of Parties…………………………………………..33-35

1. Burglary……………………………………………………………..33-34

2. Law of Parties……………………………………………………….34-35

Application…………………………………………………………………….35-46

1. There is no evidence that Brittany entered the residence with intent to
commit theft, or that, in this regard, Appellant entered into an agreement
with Brittany before the burglary to commit the burglary…………..35-36

4
 2. There is no evidence that Brittany attempted to commit or did commit
theft after entering Pope’s residence, that Appellant had anything to do
with any other possible burglary of Pope’s residence, or that Appellant
and Brittany entered into any agreement prior to the burglary to commit
the burglary…………………………………………………….……36-41

3. Addressing possible counterarguments from the State……………...41-46

Conclusion………………………………………………………………………...46

Prayer…………………..…………………………………………………….........46

Certificate of Compliance………………………………………………………....47

Certificate of Service……………………………………………………………...48

5
 INDEX OF AUTHORITIES

United States Supreme Court:

Jackson v. Virginia, 443 U.S. 307 (1979)……………………………..20, 32-33, 45

Court of Criminal Appeals:

Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010)…………………………………………20, 32-33, 45

Clayton v. State, 235 S.W.3d 772
(Tex. Crim. App. 2007)………………………………………………...20, 33

Davila v. State, 547 S.W.2d 606
(Tex. Crim. App. 1977)……………………………………………..21-22, 34

Day v. State, 534 S.W.2d 681
(Tex. Crim. App. 1976)………………………………………23, 27-28, n. 10

Hardesty v. State, 656 S.W.2d 73
(Tex. Crim. App. 1983)…………………………………………………41-42

Hooper v. State, 214 S.W.3d 9
(Tex. Crim. App. 2007)………………………………………………...20, 33

St. Julian v. State, 874 S.W.2d 669
(Tex. Crim. App. 1994)…………………………………………………….28

Malik v. State, 953 S.W.2d 234
(Tex. Crim. App. 1997)………………………………………………...20, 33

McKnight v. State, 399 S.W.2d 552
(Tex. Crim. App. 1966)…………………………………………………….43

Morrison v. State, 608 S.W.2d 233
(Tex. Crim. App. 1980)………………………………….34, 36, 39, 41, n. 12

Nichols v. State, 479 S.W.2d 277
(Tex. Crim. App. 1972)……………………………………………...40, n. 14

6
Prather v. State, 128 Tex. Crim. 342, 81 S.W.2d 528
(1935)………………………………………………………………………42

Swain v. State, 583 S.W.2d 775
(Tex. Crim. App. 1979)…………………………………………………27-28

Urtado v. State, 605 S.W.2d 907
(Tex. Crim. App. 1980)…………………………………………35-36, 39, 41

Texas Courts of Appeals:

Darby v. State, 960 S.W.2d 370
(Tex. App.—Houston [1st Dist.] 1998, pet. ref’d)……………………..24, 26

England v. State, 727 S.W.2d 810
(Tex. App.—Austin 1987, no pet.)……………………………………..42-43

Espinoza v. State, 955 S.W.2d 108
(Tex. App.—Waco 1997, pet. ref’d)……………………………………36-37

Haley v. State, 113 S.W.3d 801
(Tex. App.—Austin 2003)………………………………………………....41

Hartsfield v. State, 305 S.W.3d 859
(Tex. App.—Texarkana 2010, pet. ref’d)………………………………20, 32

Jones v. State, 690 S.W.2d 318
(Tex. App.—Dallas 1985, pet. ref’d)……………………………...24-26, n. 8

Tennyson v. State, No. 11-92-107-CR, 1993 WL 13141619
(Tex. App. Eastland, June 24, 1993) (not designated for publication)…23-24

White v. State, 630 S.W.2d 340
(Tex. App.—Houston [1st Dist.] 1982, no pet.)………………………..24, 26

Woods v. State, 01-92-00739-CR, 1993 WL 177627
(Tex. App.—Houston [1st Dist.] May 27, 1993, pet. ref’d)
(not designated for publication)………………………………………...23-24

7
Constitutions/Statutes/Rules

Tex. Pen. Code § 7.01(a)……………………………………………………...21, 34

Tex. Pen. Code § 7.02(a)(2)……………………………………………….34-36, 41

Tex. Pen. Code § 30.01………………………………………………22-23, 25, n. 8

Tex. Pen. Code § 30.02……………………………………..21-22, 28-29, 33-34, 41

Tex. Pen. Code § 31.01(4)(B)……………………………………………………..30

Tex. Pen. Code § 31.03(b)(2)……………………………………………...29-30, 35

Other Jurisdictions

Jefferson v. State, 977 So.2d 431
(Miss. Ct. App. 2008)…………………………………………………27, n. 9

Secondary Sources

43 A.L.R.2d 831…………………………………………………………......27, n. 9

http://www.merriam-webster.com/dictionary/building...................................25, n. 8

http://www.merriam-webster.com/dictionary/carport.....................................25, n. 7

http://www.merriam-webster.com/dictionary/outbuilding..............................25, n. 8

8
 STATEMENT OF THE CASE

Nature of the Case: This is an appeal from a judgment of conviction for
burglary of a habitation following a jury trial. (I C.R. at
63-64).

Judge/Court: Judge Evan Stubbs, 33rd District Court, Llano County.
(I C.R. at 63-64).

Pleas: Not Guilty. (I C.R. at 63) (IV R.R. at 6).

Trial Court Disposition: Following the jury’s verdict finding Appellant guilty of
burglary of a habitation, (I C.R. at 52; 63-64) (VI R.R. at
80), the jury assessed punishment of fifteen years in the
Texas Department of Criminal Justice and a fine of
$7,500, (I C.R. at 57; 63-64) (VII R.R. at 41), and the
trial court imposed the sentence. (VII R.R. at 41-42) (I
C.R. at 63-64).

ISSUES PRESENTED

ISSUE ONE: The evidence is legally insufficient to support Appellant’s

conviction for burglary as the principal actor because there is no evidence that, by

his own conduct, he entered Shane Pope’s habitation.

ISSUE TWO: The evidence is legally insufficient to support Appellant’s

conviction for burglary under the law of parties because there is no evidence that

Brittany Anderson entered Shane Pope’s residence with intent to commit theft, that

she in fact committed or attempted to commit theft when she entered the residence,

or that there was an agreement with Appellant before the burglary to commit the

burglary.

9
 STATEMENT OF FACTS

When Shane Pope stopped at his house after work around five p.m. on

October 7, 2013, he was certain his home had not been burglarized: the house was

not ransacked and he did not notice his belongings missing. (IV R.R. at 20-21;

27-28) (V R.R. at 17; 26). After feeding his dogs and staying for perhaps fifteen

minutes to half an hour, he left to spend the night at his girlfriend’s house. (IV

R.R. at 21) (V R.R. at 18).

The next day, he noticed $600 missing from his bank account, and when he

returned home late at night he noticed his lawnmower and trailer were missing

from the carport where he kept them. (IV R.R. at 22-26). Upon entering his home,

which showed no signs of forced entry, he found his belongings rifled through1

and several items missing, including a television, CDs, DVDs, a stereo, guns, an

Explode boombox, three checkbooks, Bushnell and Simmons binoculars, and so

forth. (IV R.R. at 26-33). Because he was absent from his home for a specific

period between October 7th and October 8th of 2013, and because he was certain his

house had not been burglarized by the time he briefly stopped there on October 7th,

Pope was certain the burglary occurred “either between 5:30 October 7 th to 10:15

October 8th.” (IV R.R. at 21) (V R.R. at 17; 26).

1
It looked like “people were [sic] going through stuff…pictures [had been] moved and books
[had been] knocked over”. (IV R.R. at 28).
10
 Pope testified the $600 check that was cashed “didn’t match the ones that

were in [his] pickup”; he kept his other checks, which were stolen during the

burglary, in his master bedroom closet. (IV R.R. at 24-25; 31). Although he

discovered this draft on October 8th, the day it was processed, the check was

indisputably cashed on October 7, 2013 at 4:03 p.m.—before his home was

burglarized. (IV R.R. at 23-25) (V R.R. at 17; 26-27) (VI R.R. at 26) (Defendant’s

Ex. 1). The reason for the date discrepancy is because all checks cashed after 2

p.m. are processed on the next business day. (VI R.R. at 26).

Pope contacted the police, telling them he knew who broke into his home,

which led to police investigating Appellant and his girlfriend (who was also Pope’s

half-sister2), Brittany Anderson, on October 9, 2013 at Appellant’s trailer and

shop.3 (IV R.R. at 19-20) (V R.R. at 33; 36-39; 49) (State’s Ex. 25-26). Brittany

answered the trailer door after Lieutenant Glenn Williams knocked, and denied

knowing anything about cashing her brother’s check and burglarizing her brother’s

house. (V R.R. at 38-39). Appellant, who came from his nearby shop, denied

knowing anything about the stolen items, and denied having a riding lawnmower

2
Asked if he and Brittany were close, Pope replied, “Not really.” (IV R.R. at 20). He did not
know the last time she visited his home and did not think she ever had, nor was he certain about
her age. (IV R.R. at 19-20) (V R.R. at 23-24). Both, however, clearly interacted since Pope saw
Appellant at his mother and father’s house, suggesting Brittany brought him there. (V R.R. at
18-19).
3
Although not clear from the testimony, perhaps Pope suspected Brittany’s involvement because
of her connection to the $600 withdrawal from his account. See (Defendant’s Ex. 1) (V R.R. at
38).
11
or knowing anything about a stolen trailer. (V R.R. at 39-40). When asked about

the 55-inch Samsung television stolen from Pope’s residence, Appellant stated his

television was on the ground outside the trailer (Lieutenant Williams

acknowledged there was a television on the ground), and his trailer was too small

to have a television that large. (V R.R. at 40-41). Appellant refused Lieutenant

Williams consent to search his trailer, but gave consent to search the rest of his

premises. (V R.R. at 42-43). As a result, Lieutenant Williams found a trailer

matching the description of Pope’s trailer that was “freshly painted, partially

painted with green paint”, and that had been “obliterated by a welding rod” on the

top of the neck on the “tongue” of the trailer. (V R.R. at 43-44) (State’s Ex. 14-

21). He noticed “fresh lawnmower-type tire tracks” on the trailer bed. (V R.R. at

44).

Lieutenant Williams took the trailer to the sheriff’s office, but returned with

Investigator Bill Boyd and Probation Officer Quinn Wilson. (V R.R. at 49). The

latter came along to “do an inspection on the residence since Brittany was on

probation at the time.” (V R.R. at 49). When the officers arrived, Appellant was

outside and Brittany was in Appellant’s trailer where she lived. (V R.R. at 169-

170). Appellant helped law enforcement gain entry to the trailer by prying its door

open with a screwdriver. (V R.R. at 172).

12
 Upon entering, officers found a large flat screen television that both

Lieutenant Williams and Appellant thought was 42-inches. (V R.R. at 52; 72).

However, after conducting proper measurements, Lieutenant Williams found the

screen size to be 55-inches. (V R.R. at 72-73). Other facets of the television

distinguished it as Pope’s, such as distinctive wall mountings and its compatibility

with the remote control (which was not stolen) that came with the television. (V

R.R. at 34-37) (State’s Ex. 12 and 13). Pope also identified the television as his.

(V R.R. at 56). Appellant told Lieutenant Williams the television belonged to his

sister, and Appellant provided no explanation for why the television was there

when earlier he had said he did not have one. (V R.R. at 53). However, both

Lieutenant Williams and Appellant mistakenly had thought the television was 42-

inches. (V R.R. at 72). The only item belonging to Pope that officers removed

from Appellant’s trailer was the television.4 (V R.R. at 173).

The only witness to the alleged burglary who testified at trial was Danny

Napolez, who maintained that he road along but did not participate. (V R.R. at

110-11). According to Napolez, when he arrived at Appellant’s residence on the

day of, but before, the burglary, there was already a flat-screen television in

Appellant’s trailer that he had not seen before. (V R.R. at 112; 126-127). He
4
Apparently Investigator Boyd observed two pairs of binoculars—one Bushnell and one
Simmons—in Appellant’s trailer, but these were not shown to be the same ones alleged to have
been stolen from Pope. (IV R.R. at 31) (V R.R. at 80-82). Napolez also testified Appellant gave
him an Explode boombox months later, but this also was not shown to be the same Explode
boombox alleged to have been stolen from Pope. (IV R.R. at 27; 32) (V R.R. at 113-114).
13
asked Appellant “Where did y’all get this?”, to which Appellant replied that the

television was Brittany’s. (V R.R. at 112).

At some point, Brittany “said she got in an argument with her brother and

that she needed to go pick up a…few stuff of her’s [sic]”, which provided the

impetus for going to Pope’s house. (V R.R. at 113). Once there, Brittany went

inside and “said to load [the riding lawnmower and/or trailer] because she said it

was her’s. [sic]” (V R.R. at 111; 114-115). Appellant did so. (V R.R. at 114).

Napolez testified he and Appellant then “waited til [Brittany] came out”, (V

R.R. at 111-112), but did not testify she came out with anything. (V R.R. at 104-

160). Nor did he testify that Appellant, Brittany, and he returned to Appellant’s

residence and unloaded anything but the trailer and the lawnmower. (V R.R. at

115; 125-127; 141-145; 150-152). According to Napolez, when they returned to

Appellant’s residence, Appellant began welding and painting the trailer. (V R.R.

at 150-151). Then, Brittany, Appellant, and Napolez left for the bank, where

Napolez refused to sign a check because “[i]t was a forgery”, so Brittany signed

instead and cashed it. (V R.R. at 115-117; 126-127; 150-151). Napolez did not

know whose check was being cashed, did not see the name on the check, and was

not told that it came from the alleged burglary of Pope’s house. (V R.R. at 117-

118).

14
 Napolez’s ability to put together a detailed timeline was in doubt (perhaps

because of his drug use), but he was unequivocal about the overall sequence: when

he arrived at Appellant’s residence a flat-screen television was already there, after

that the three traveled to Pope’s residence to pick up the lawnmower and trailer,

after that they returned to Appellant’s residence and dropped these items off, and

after that they went to the bank. (V R.R. at 112-115; 125-127; 141-145; 147-151).

Napolez also denied signing a receipt evidencing him selling Appellant the

lawnmower (V R.R. at 118-120; 139-141) (Defendant’s Ex. 2).

On October 8, 2013, Glenn Jolly purchased the lawnmower from Appellant

for $350, and Appellant claimed he had purchased it for $400 from someone who

needed money. (V R.R. at 94-97; 99) (Defendant’s Ex. 2). When Jolly bought the

lawnmower sometime after 1:30 p.m. or 2 p.m., Bobby Wisdom and Buddy Jarrett

were present but he did not notice if “a Spanish guy” was there. (V R.R. at 102-

103).

Appellant called Bobby Wisdom in his defense, who testified that he spent

the better part of October 7, 2013 working with Appellant to change a transmission

for someone named “Buddy”.5 (V R.R. at 178-180). Wisdom did not see

Appellant’s truck, but did affirm Appellant had to ask Buddy to get Appellant

5
This would be Buddy Jarrett, an alibi witness under the State’s subpoena whose failure to
appear at trial was the subject of Appellant’s motion for new trial. (V R.R. at 6-11; 222-234) (VI
R.R. at 7; 17-18) (VIII R.R. at 4-18) (Defendant’s Ex. 8).
15
some water because Appellant did not have a ride. (V R.R. at 181). Wisdom spent

all day from 9 a.m. to 4:30 p.m. in Appellant’s shop, only stepping out in front. (V

R.R. at 197-198). Just after Wisdom left and as he was walking down the road,

Appellant’s father drove up. (V R.R. at 182). When Wisdom left, Pope’s trailer

and lawnmower were not at Appellant’s property. (V R.R. at 183).

Later that night, around 8:30 or 8:45 p.m., Wisdom received a call from

Brittany from which he received the impression that he needed to come help

unload a television. (V R.R. at 182-183). When he arrived, the television was

already unloaded and was in the trailer on the couch, while Appellant was still

working in his shop. (V R.R. at 183-184). At that time, there was a John Deere

lawnmower and trailer at Appellant’s shop. (V R.R. at 184). Wisdom saw

Napolez sitting on the trailer painting the “top rail of the hang line”. (V R.R. at

184; 186; 199-200). Wisdom left but returned the next day and was present when

the lawnmower was sold. (V R.R. at 184-185; 187). The State contested

Wisdom’s testimony vigorously (e.g., V R.R. at 189; 191-195; 197-198), and

according to the hearing on Appellant’s motion for new trial, the jury found him a

“totally unbelievable witness.” (VIII R.R. at 9-10).

Appellant’s father testified on his behalf, saying he went to Appellant’s

property on October 7, 2013, sometime around 4:30 or 5 p.m., and left between

6:00 and 7:00 p.m. (V R.R. at 208). Appellant was “working on a white Ford car

16
and another guy” was there whose name Appellant’s father believed was Buddy

Jarrett. (V R.R. at 209). He did not see Appellant’s vehicle at Appellant’s shop,

nor did he see “anything that wasn’t [his] out there.” (V R.R. at 209-210). When

Appellant’s father left, he saw Brittany and Danny Napolez in Appellant’s truck at

red light. (V R.R. at 211). He could not, however, “tell if they were pulling

anything or if the truck had anything in it or not.” (V R.R. at 212).

In the State’s rebuttal, a bank teller, Brook Johanson, testified that she saw

Appellant in his truck while Brittany cashed the $600 check. (VI R.R. at 19-20;

22; 25-27; 30; 34-35). According to Johanson, the writing on the check resembled

Appellant’s “scribbling handwriting”. (VI R.R. at 29-30). On cross-examination,

however, she admitted that a specimen of Appellant’s handwriting did not match

the forged check. (VI R.R. at 39) (State’s Ex. 30) (Defendant’s Ex. 7).

During the trial but outside the presence of the jury, the Court commented

that “[c]learly, if there was a burglary, there was a single burglary based on the

evidence that’s been presented”, and observed that the Court did not “recall

hearing any direct testimony that he [Appellant] entered the habitation”. (V R.R.

at 166; 221).6 As a result, the Court’s charge authorized the jury to convict

Appellant, both as the primary actor and as a party, of a single burglary committed
6
During closing arguments the prosecutor informed the jury of his tardy realization that, due to
Appellant’s presence on October 7, 2013 when the forged check was passed, “Mr. Pope’s house
had been burglarized more than once.” (VI R.R. at 76). This does not conflict, however, with
the trial judge’s opinion that there was “a single burglary” shown by the evidence. See note 12,
infra.
17
in either of two ways. (I C.R. at 46-51). First, by intentionally or knowingly

entering Pope’s house without his effective consent, and therein attempting to

commit or committing theft of Pope’s television. (I C.R. at 49). Second, by

entering Pope’s house without his effective consent and with intent to commit

theft. (I C.R. at 49). The jury returned a guilty verdict, and after a punishment

hearing, assessed his punishment at fifteen years with a $7,500 fine. (I C.R. at 52;

57). The Court sentenced Appellant in accordance with the jury’s verdict. (VII

R.R. at 41-42).

SUMMARY OF THE ARGUMENT

ISSUE ONE: The evidence is legally insufficient to support Appellant’s

conviction for burglary as the principal actor because there is no evidence that, by

his own conduct, he entered Shane Pope’s habitation.

The only evidence in the record of a potential burglary comes from Danny

Napolez, who, rather than testifying that Appellant entered Pope’s habitation,

testified that Appellant waited in the car until Brittany returned from entering the

habitation. As such, it is impossible for Appellant to have committed burglary by

his own conduct as the principal actor, because there is no evidence that he himself

entered Pope’s habitation, and entry is an essential element of burglary. This is

true of both subsections of the burglary statute under which the State sought a

conviction.

18
 Stealing the lawnmower and trailer from Pope’s carport could not support

the burglary conviction because a carport is not a “habitation”, nor (so far as the

facts disclose) a structure “appurtenant to or connected with” a habitation; it is not

even an enclosed structure that could constitute a building. No published opinion

in Texas holds that a carport is part of a habitation, and the two unpublished

opinions that do so hold are based on opinions with dissimilar facts and faulty

reasoning. Yet, even if we accept the definition of “appurtenant” from one case,

the facts here do not show that the carport meets that definition. Instead, this Court

should following the implications of two Court of Criminal Appeals cases and

conclude that a carport, at least on these facts, is not a habitation or a part of one.

If the Court chooses instead to hold that the carport was part of Pope’s habitation,

then nothing shows Appellant entered the carport to hook up the trailer on which

the lawnmower sat.

Neither is the fact that the television was found in Appellant’s residence

sufficient to support Appellant’s conviction based on his own conduct: if the

television was removed during the incident described by Napolez (and nothing

shows that it was), Appellant did not enter Pope’s residence, but if, on the other

hand, the television was removed at another time, nothing shows Appellant had

anything to do with this other burglary.

As such, Appellant’s conviction cannot stand based on his own conduct.

19
 ARGUMENT

Standard of Review

In evaluating legal sufficiency, the appellate court reviews all the evidence

in the light most favorable to the trial court’s judgment to determine whether any

rational jury could have found the essential elements of the offense beyond a

reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010,

pet. ref’d). The reviewing court examines legal sufficiency under the direction of

the Brooks opinion, while giving deference to the responsibility of the jury “to

fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). Sufficiency of the evidence is measured

by the elements of the offense as defined by a hypothetically correct jury charge.

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically

correct jury charge “sets out the law, is authorized by the indictment, does not

unnecessarily increase the State's burden of proof or unnecessarily restrict the

State's theories of liability, and adequately describes the particular offense for

which the defendant was tried.” Id.

20
Law of Burglary

Based on the offense as charged in the indictment, a person commits

burglary “if, without the effective consent of the owner, the person:

(1) enters a habitation…with intent to commit a…theft; or

[…]

(3) enters a…habitation and commits or attempts to commit a…theft”. Tex.

Pen. Code § 30.02(a)(1)(3); (I C.R. at 6-7).

For the first method, the mens rea—intent—is supplied by the statute itself,

while for the second, the culpable mental state is intentionally or knowingly.

Davila v. State, 547 S.W.2d 606, 608, n.2 (Tex. Crim. App. 1977).

To “enter” means “to intrude: (1) any part of the body; or (2) any physical

object connected with the body.” Tex. Pen. Code § 30.02(b)(1)(2).

“A person is criminally responsible as a party to an offense if the offense is

committed by his own conduct”. Tex. Pen. Code § 7.01(a).

Application

1. Appellant did not enter Pope’s habitation

Although the judge’s view of the evidence is by no means controlling, here

it is correct: the evidence at trial disclosed a single alleged burglary during which

Appellant did not enter Pope’s habitation. (V R.R. at 166; 221). Danny Napolez is

the only witness who testified as to what happened during the alleged burglary, and

21
his testimony is pithy. According to him, Brittany “said to grab the lawnmower

because she said the lawnmower was her’s [sic], so Jonathan backed up to it,

loaded the lawnmower, then got in the truck and we waited til she came out.” (V

R.R. at 111-112) (emphasis added). Because this is the only evidence given of the

burglary itself, it shows that without a doubt Appellant did not enter Pope’s

residence. As a result, the evidence is legally insufficient to show that Appellant,

by his own conduct, committed burglary because the record is devoid of evidence

on an essential element of the offense. Tex. Pen. Code § 30.02(a)(1)(3); Davila,

547 S.W.2d at 608 (listing elements of burglary under 30.01(a)(3)); (I C.R. at 6-7;

49). This is true under either of ways the burglary was charged to the jury:

entering with intent to commit theft, and entering and attempting to commit or

committing theft, both require entry, and no evidence shows Appellant entered

Pope’s residence. Tex. Pen. Code § 30.02(a)(1)(3) and Tex. Pen. Code §

30.02(b)(1)(2).

2. Red Herrings: the Carport and the Television

A. The Carport is not a Habitation or Part of a Habitation

In reaching this conclusion, the Court must avoid two red herrings. First, it

is immaterial that Appellant, according to Napolez, stole the trailer and

lawnmower. (V R.R. at 111; 114-115). This is because, according to Pope, the

trailer and lawnmower were under his carport, (IV R.R. at 26), but an open carport

22
is not a “habitation” (because it is not adapted for the overnight accommodation of

persons), Tex. Pen. Code § 30.01(1), nor even an “enclosed structure” that could

qualify as a building that, under 30.01(2), could be burgled. Day v. State, 534

S.W.2d 681, 685 (Tex. Crim. App. 1976) (“enclosed structure” under Texas Penal

Code Section 30.01(2) does not “include…open carports with walls on both sides

but none on the ends”).

Nor is there any evidence that Pope’s carport was a “structure appurtenant to

or connected with” his habitation. Tex. Pen. Code § 30.01(1)(B). Pope testified

that “[t]o the south side of my house I have a carport and a little shed and I keep it

underneath that carport and you can see it as soon as you pull up.” (IV R.R. at 26).

This brief description does not tell us how close or far the carport is from Pope’s

habitation, nor whether it is attached or unattached, appurtenant or not, connected

with the habitation or not.

Moreover, no Texas court has held in a published opinion that a carport is

“appurtenant to or connected with” a habitation; rather, only two unpublished

opinions have so held. Tennyson v. State, No. 11-92-107-CR, 1993 WL 13141619

at *1-2 (Tex. App. Eastland, June 24, 1993) (not designated for publication)

(concluding that a carport attached to a house was a structure connected with the

house for purposes of Texas Penal Code 30.01(1)(B)); Woods v. State, 01-92-

00739-CR, 1993 WL 177627, at *3 (Tex. App.—Houston [1st Dist.] May 27,

23
1993, pet. ref’d) (not designated for publication) (same); cf. Jones v. State, 690

S.W.2d 318, 319 (Tex. App.—Dallas 1985, pet. ref’d) (reaching same conclusion

regarding unattached garage), Darby v. State, 960 S.W.2d 370, 371-372 (Tex.

App.—Houston [1st Dist.] 1998, pet. ref’d) (same), and White v. State, 630 S.W.2d

340 (Tex. App.—Houston [1st Dist.] 1982, no pet.) (attached garage was a

structure appurtenant to and connected to the victim’s house). But Tennyson

followed Darby and Jones, whose reasoning and facts are inapplicable here, and

Woods followed White, whose reasoning and facts are also inapplicable here.

In Darby, the unattached garage was “approximately nine feet from [the

victim’s] house and [was] fully enclosed.” Darby, 960 S.W.2d at 371. The victim

stored “all items which she [could not] store in her house in her garage” and

“consider[ed] her garage to be part of her home.” Id. “In a storage room in the

back of the garage, there [was] a bed in which [the victim’s] grandson slept for six

months.” Id. The Court concluded that the victim’s “unattached garage, which

was used to store items she could not store in her house, was ‘appurtenant to’ her

house as the term is defined in Jones [v. State, 690 S.W.3d 318, 319 (Tex. App.—

Dallas 1985, pet. ref’d)].” Darby, 960 S.W.2d at 372. Clearly Pope’s sparse

description of his carport does not include the same level of pertinent details as in

Darby: we do not know how far the carport is from his house, though the carport

24
is certainly not enclosed;7 Pope did not testify that he considered the carport a part

of his home; he did not testify that he stored all items he could not store in his

house under his carport; and nothing shows the carport was outfitted at all for

sleeping.

As for Jones, that case cherry-picked from the definition of “appurtenant” in

Black’s Law Dictionary. The Dallas court chose, without explaining why, the part

of the definition that did not require attachment or physical connection, in favor of

the part that did so require. Jones, 690 S.W.2d at 319. But neither the language of

the statute nor the definition of “appurtenant” cited by Jones compel the

conclusion that an unattached structure—or at least a carport—is appurtenant to or

connected with a habitation. Tex. Pen. Code § 30.01(1)(B).8 In any event, as a

result the Jones court concluded a structure is “appurtenant to” a habitation if it is

“necessarily connected with the use and enjoyment of the house, and it is

secondary or incident to the principal building, the house.” Id. (internal citations

omitted). But even under this definition there is no evidence that Appellant’s
7
See http://www.merriam-webster.com/dictionary/carport: a carport is “an open-sided
automobile shelter by the side of a building”. Accessed August 18, 2015.
8
As “further support” of its holding, the Jones court noted that “several commentators” include
“garages and other outbuildings” under Section 30.01(1)(B). Jones, 690 S.W. at 319-320.
However, a carport is not an outbuilding, for an “outbuilding” is “a building (as a stable or a
woodshed) separate from but accessory to a main house”, http://www.merriam-
webster.com/dictionary/outbuilding (accessed August 18, 2015), and a “building” is “a usually
roofed and walled structure built for permanent use (as for a dwelling)”. http://www.merriam-
webster.com/dictionary/building, accessed August 18, 2015. But a carport is “open-sided” (see
footnote 5, supra), not walled, nor do we have enough facts here to know whether Pope’s carport
might, because of unorthodox design, meet the definition of “outbuilding”. (IV R.R. at 111;
114).
25
carport was “necessarily connected with the use and enjoyment” of his house;

because he stored his lawnmower and trailer under the carport, it rather seems as if

his carport is necessarily connected with the use and enjoyment of his yard.

This is not mere facetiousness, for it is quite true that the record lacks

evidence disclosing how the carport is necessarily connected with the use and

enjoyment of Pope’s house. To see this, we must come full circle. If we are going

to accept Jones’ definition of “appurtenant”, then Darby shows us what it means

for an unattached structure to be “necessarily connected with the use and

enjoyment” of the house: storage therein of items that will not fit in the house; use

of the garage (or, more broadly, structure) as sleeping quarters; perception of the

unattached garage (structure) by the victim as part of his home; proximity to the

house; and full enclosure. Darby, 960 S.W.2d at 371-372. None of these facts

obtain here, unless we assume that the carport was quite close to the house—which

would be mere speculation—or that the carport was fully enclosed, which would

be unusual, in addition to also being mere speculation. (IV R.R. at 26).

White is inapplicable because it considered whether an attached garage

without a door could be considered part of a habitation, White, 630 S.W.2d at 341-

342, and these are not the facts here. Moreover, White’s holding is based on the

conclusion that burglary of a building requires an enclosed structure, whereas

burglary of a habitation does not. Id. at 642. Yet even if true, this does not resolve

26
the instant question because the fact that a structure is unenclosed may

nevertheless be relevant in determining whether it is part of a habitation. See

Swain v. State, 583 S.W.2d 775, 777 (Tex. Crim. App. 1979) (no indication the

legislature intended “to expand the concept of burglary of a habitation to include

an entry upon an unenclosed and unsecured stairway attached to a residence”)

(comparing Day v. State, 534 S.W.2d 681 (Tex. Crim. App. 1976)) and Jefferson v.

State, 977 So.2d 431, 436-437 (Miss. Ct. App. 2008) (“open, freestanding

structure” not a dwelling house or part of a dwelling house under Mississippi

statute defining “dwelling house” as “[e]very building joined to, immediately

connected with, or being a part of the dwelling house”).

Rather, this Court should follow the conclusions of Swain (unenclosed and

unsecured stairway attached to a residence is not a part of the habitation that can be

burgled) and Day (carport is not a building that can be burgled), and hold that a

carport cannot, at least on these facts, be a habitation or part of a habitation under

Texas burglary law.9 Swain, 583 S.W.2d at 777; Day, 534 S.W.2d at 685. In this

connection, it is significant that when the Court of Criminal Appeals decided in

Swain that an unenclosed and unsecured stairway attached to a residence did not

fall under the purview of the burglary of a habitation statute, the Court supported

9
It is also noteworthy that a collection of cases in the American Law Reports on the topic of
“Burglary: outbuildings or the like as part of the ‘dwelling house’” contains only one case, the
Jefferson case from Mississippi cited above, that even considers whether a carport can be part of
a habitation (or its equivalent term). 43 A.L.R.2d 831.
27
its conclusion by citing Day, which included a carport amongst those structures not

falling under the purview of the burglary of a building statute. Swain, 583 S.W.2d

at 777; Day, 534 S.W.2d at 685;10 Tex. Pen. Code § 30.02(a)(1)(3). The inference

the Court made is clearly that an unenclosed and unsecured stairway, even if

attached to a residence, is not a part of a residence because such a stairway is like

those structures—including a carport—which are not otherwise protected by the

burglary statute. Day, 534 S.W.2d at 685; see also St. Julian v. State, 874 S.W.2d

669, 670 (Tex. Crim. App. 1994) (in burglary of a building case, citing Day and

thus reiterating that a carport is not a building protected by the burglary statute). If

such a stairway is not part of a residence because it is like a carport, then, a

fortiori, the carport itself will not be part of a residence.

Therefore, stealing the lawnmower and the trailer makes Appellant a thief,

but not a burglar.

Still, even if the Court disagrees and holds that the carport is a structure

“appurtenant to or connected with” Pope’s habitation, the record does not show

that Appellant actually entered the carport when he loaded the lawnmower and

trailer. (IV R.R. at 26) (V R.R. at 114); Tex. Pen. Code § 30.02(b)(1)(2) (“enter”

means “to intrude: (1) any part of the body; or (2) any physical object connected

10
The complete list of examples the Court gives include “open air stages with three walls and a
roof, or open carports with walls on both sides but none on the ends, or even four-columned
pavilions with no walls”. Day, 534 S.W.2d at 685.
28
with the body.”). While part of the trailer and lawnmower must have been under

the carport, nothing shows Appellant must have entered the carport to hook them

up to his truck. (V R.R. at 114). It is possible the trailer protruded beyond the

limits of the carport so that Appellant need not have entered the carport to steal the

trailer (on which the lawnmower sat). (IV R.R. at 26). At any rate, to conclude

anything more requires speculation.

B. Nothing shows Appellant himself participated in removing the
television from Pope’s residence, whenever that occurred

The second red herring is that it is immaterial that Pope’s television was

found in Appellant’s trailer because no evidence shows that, when the television

was removed from Pope’s residence (whenever that was), Appellant had anything

to do with it, much less entered the residence to remove it. (V R.R. at 52; 56; 34-

37; 72-73). If the television was removed when Brittany emerged from Pope’s

residence after Appellant loaded the trailer and lawnmower, then clearly Appellant

did not enter the residence and thus could not be convicted of burglary based on his

own conduct. (V R.R. at 111-112).11 If, instead, the television was removed at

another time, there is no evidence that Appellant had anything to do with that

burglary. At best, the television’s presence in his trailer could make Appellant

guilty of theft under Section 31.03(b)(2) of the Texas Penal Code for appropriating

11
As discussed in Issue Two, however, there is no evidence that Brittany emerged from the
residence with anything at all.
29
stolen property, if he knew the property was stolen by another when he

appropriated it. Tex. Pen. Code § 31.03(b)(2); Tex. Pen. Code § 31.01(4)(B). But

that, of course, is not the same offense as burglary, and Appellant need not enter

any habitation, except his own, to commit it.

Conclusion

No evidence shows Appellant entered Pope’s habitation, and nothing shows

Appellant was even present or entered the habitation when the television was

stolen, whenever that was. As such, Appellant’s conviction cannot stand insofar as

it was based on his own conduct as a primary actor.

SUMMARY OF THE ARGUMENT

ISSUE TWO: The evidence is legally insufficient to support Appellant’s

conviction for burglary under the law of parties because there is no evidence that

Brittany Anderson entered Shane Pope’s residence with intent to commit theft, that

she in fact committed or attempted to commit theft when she entered the residence,

or that there was an agreement with Appellant before the burglary to commit the

burglary.

The only direct evidence of Brittany’s possible intent when she entered

Pope’s residence comes from Napolez, who testified Brittany was going to retrieve

some of her things from her brother following an argument she had with him. This

30
alone is not enough to show that she entered Pope’s residence with intent to

commit theft because one cannot purloin one’s own possessions.

Nothing shows Brittany committed or attempted to commit theft after

entering Pope’s residence. Significantly, Napolez did not testify that Brittany

emerged from Pope’s residence with anything: nothing shows she burgled Pope’s

residence at that time. And, according to Napolez, after the burglary he, Brittany,

and Appellant returned to Appellant’s residence to unload the trailer and the

lawnmower—nothing else. In fact, the television was already at Appellant’s

residence before the alleged burglary described by Napolez occurred. If there was

another burglary, nothing connects Appellant to it. Nothing shows Brittany

attempted to burgle Pope’s residence but failed.

Should the Court disagree that the evidence does not show Brittany emerged

from the residence with anything, remember that the State still must show an

agreement before the burglary in which Appellant intended to promote or assist the

burglary: acts after the fact (such as being present at a forgery) do not show the

agreement required for a conviction under the law of parties.

Some potential counterarguments from the State are worth addressing. The

fact that the television was found in Appellant’s residence does not give rise by

itself to an inference of Appellant’s guilt, because both Brittany and Appellant

resided there. Nothing shows Appellant exercised a “conscious assertion of right

31
to the property” as is also required. Any other suspicious or bad acts evidenced in

the record, such pawning the lawnmower or welding the trailer or even being

present during the forgery, may show Appellant is complicit in other crimes, but

not burglary. The fact that Brittany and Pope were not close siblings might cast

doubt on the veracity of her claim to be retrieving her own things following an

argument with Pope (or not—if they are not close they might be prone to argue),

but this does not show Appellant was unjustified in believing Brittany’s reason for

going to Pope’s house nor that he knew that reason was a pretext (if it was).

Finally, that Appellant’s alibi witness was apparently not believed by the jury does

not alter the fact that the rest of the State’s evidence must itself be legally sufficient

to sustain Appellant’s conviction, and the evidence is not.

ARGUMENT

Standard of Review

In evaluating legal sufficiency, the appellate court reviews all the evidence

in the light most favorable to the trial court’s judgment to determine whether any

rational jury could have found the essential elements of the offense beyond a

reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010,

pet. ref’d). The reviewing court examines legal sufficiency under the direction of

32
the Brooks opinion, while giving deference to the responsibility of the jury “to

fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). Sufficiency of the evidence is measured

by the elements of the offense as defined by a hypothetically correct jury charge.

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically

correct jury charge “sets out the law, is authorized by the indictment, does not

unnecessarily increase the State's burden of proof or unnecessarily restrict the

State's theories of liability, and adequately describes the particular offense for

which the defendant was tried.” Id.

Law of Burglary and Law of Parties

1. Burglary

Based on the offense as charged in the indictment, a person commits

burglary “if, without the effective consent of the owner, the person:

(1) enters a habitation…with intent to commit a…theft; or

[…]

(3) enters a…habitation and commits or attempts to commit a…theft”. Tex.

Pen. Code § 30.02(a)(1)(3); (I C.R. at 6-7).

33
 For the first method, the mens rea—intent—is supplied by the statute itself,

while for the second, the culpable mental state is intentionally or knowingly.

Davila v. State, 547 S.W.2d 606, 608, n.2 (Tex. Crim. App. 1977).

To “enter” means “to intrude: (1) any part of the body; or (2) any physical

object connected with the body.” Tex. Pen. Code § 30.02(b)(1)(2).

2. Law of Parties

“A person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is

criminally responsible, or by both.” Tex. Pen. Code § 7.01(a). “A person is

criminally responsible for an offense committed by the conduct of another if:

[…]

(2) acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to commit the

offense”. Tex. Pen. Code § 7.02(a)(2).

“In determining whether an individual is a party to an offense and bears

criminal responsibility therefor, the court may look to events before, during, and

after the commission of the offense.” Morrison v. State, 608 S.W.2d 233, 234

(Tex. Crim. App. 1980). However, “[a]cts committed after the [offense] was

completed could not make appellant a party to the offense…[t]he circumstances

must prove some culpable act before or during the [offense].” Id. at 235. There

34
must be, “in addition to physical presence, encouragement by words, or agreement

to the commission of the offense. Such agreement must be prior to or

contemporaneous with the criminal event.” Urtado v. State, 605 S.W.2d 907, 911

(Tex. Crim. App. 1980).

Application

1. There is no evidence that Brittany entered the residence with intent
to commit theft, or that, in this regard, Appellant entered into an
agreement with Brittany before the burglary to commit the burglary

Here, only Napolez testified to the events of the alleged burglary. He

testified that the impetus for going over to Pope’s residence was that Brittany “said

she got in an argument with her brother and that she needed to go pick up a few

stuff – a few stuff of her’s [sic].” (V R.R. at 113). This is the only evidence of

Brittany’s intent before the alleged burglary.

One way the State committed itself to proving burglary was through entry

into Pope’s habitation with intent to commit theft. (I C.R. at 49). Of course, a

person cannot steal his own property, Tex. Pen. Code § 31.03(a) (“A person

commits an offense if he unlawfully appropriates property with intent to deprive

the owner of property”), so Appellant could not have “inten[ded] to promote or

assist the commission of” a non-crime. Tex. Pen. Code § 7.02(a)(2). Since we

have no other evidence of Brittany’s intent before the alleged burglary, we cannot

conclude Appellant is guilty of burglary based on soliciting, encouraging,

35
directing, aiding, or attempting to aid Brittany in the commission of the offense. 12

Tex. Pen. Code § 7.02(a)(2). The evidence shows Appellant committing no

culpable act before the alleged offense, and there is no evidence of any agreement

prior to the alleged offense, in words or otherwise, to commit burglary. Morrison,

608 S.W.2d at 235; Urtado, 605 S.W.2d at 911. Rather, there is evidence of an

agreement to go over to Pope’s house so Brittany could retrieve her own

possessions: a trespass, to be sure, but not a burglary.

2. There is no evidence that Brittany attempted to commit or did
commit theft after entering Pope’s residence, that Appellant had
anything to do with any other possible burglary of Pope’s residence,
or that Appellant and Brittany entered into any agreement prior to
the burglary to commit the burglary

Now, the other way the State sought to prove Appellant guilty of burglary

was by showing, in essence, that Appellant bore some criminal responsibility for

Brittany committing or attempting to commit theft after entering Pope’s residence.

(I C.R. at 49). In contrast to the previous way of proving burglary, where the State

must establish the burglar “intended to commit the felony or theft at the time of

entry”, Espinoza v. State, 955 S.W.2d 108, 111 (Tex. App.—Waco 1997, pet.

12
As will be explained shortly, nothing shows Brittany in fact took anything, or even tried to
take anything, after she entered the residence. However, even if there were evidence that she had
done either of those culpable acts, it would not show that Appellant knew her stated reason for
going over to the residence was a pretext, nor would driving them away from the scene of the
crime make Appellant a party to burglary. Morrison, 608 S.W.2d at 235 (“[a]cts committed after
the [offense] was completed could not make appellant a party to the offense”). Furthermore, still
lacking would be any evidence of a prior or contemporaneous agreement to commit burglary.
Urtado, 605 S.W.2d at 911 (“agreement must be prior to or contemporaneous with the criminal
event”).
36
ref’d), here the State “must simply prove that the [burglar] intentionally or

knowingly entered the building or habitation without the owner’s consent and

while inside committed or attempted to commit a felony or theft.” Id. However,

there is no evidence here that Brittany committed theft, or attempted to commit

theft, after she entered Pope’s residence.

First, Napolez does not testify that Brittany emerged from Pope’s residence

with anything at all. (V R.R. at 111-112). All he says is “we waited til she came

out”, (V R.R. at 112), but does not testify she came out with anything. She could

not have stolen the television during the alleged burglary because Napolez testified

the television was already there when he arrived at Appellant’s trailer—before the

alleged burglary occurred. (V R.R. at 112). After Brittany returned to Appellant’s

truck, the three went back to Appellant’s shop to unload the trailer and the

lawnmower—but nothing else. (V R.R. at 142-143). Then, according to Napolez,

the three went to the bank where Brittany passed the forged check—but this event

could not have occurred on the same day as the alleged burglary because it is

indisputable that the forged check was passed on October 7, 2013 at 4:03 p.m.

before Pope arrived home from work and before the alleged burglary occurred on

October 8, 2013. (IV R.R. at 21) (V R.R. at 26; 112-115; 125-127; 141-145; 147-

151) (Defendant’s Ex. 1).

37
 Hence, if the State argues that Brittany did not steal the television (or

anything else) while Appellant hooked up the trailer and lawnmower, but did steal

the checkbooks, it simply is not possible: the day the trailer and lawnmower were

stolen, which is the same day Brittany entered Pope’s house, is the day after the

check (which must have come from Pope’s residence) was passed—but Napolez

was clear that passing the check occurred on the same day as, but after, unloading

the trailer and the lawnmower at Appellant’s residence. (IV R.R. at 21; 25) (V R.R.

at 17; 26; 112-115; 125-127; 141-145; 147-151) (Defendant’s Ex. 1). The

checkbooks could have been stolen when the lawnmower and trailer were stolen, if

they were all stolen on October 8, 2013—but this an impossibility, since the check

was passed the day before. (Defendant’s Ex. 1). On the other hand, the

checkbooks, lawnmower, and trailer could have been stolen at the same time on

October 7, 2013—but this is also an impossibility, because Pope testified clearly

that on October 7, 2013, when he arrived home from work his house had not been

burglarized; that he had the timeframe during which the burglary occurred pinned

down precisely; and that when he arrived home on October 8, 2013, he “noticed

[his] lawnmower and trailer were missing right off the bat”, suggesting that if these

had been stolen (along with the checkbooks) on October 7, 2013, before he arrived

home, he would not have overlooked their absence. (IV R.R. at 17; 21-26).

38
 If the State retreats to the castle keep and says there were two burglaries,13

we might not be inclined to quibble except on one crucial point: that nothing

shows that Appellant had anything to do with any other burglary of Pope’s

residence. Even if Appellant truly was present when Brittany passed the forged

check, as Johanson testified, this would not show that Appellant burgled Pope’s

house himself, or that he was criminally responsible for Brittany doing so—we do

we not know the facts of this other burglary at all, and acts committed after an

offense do not make one a party to that offense. Morrison, 608 S.W.2d at 235

(“[a]cts committed after the [offense] was completed could not make appellant a

party to the offense”); Urtado, 605 S.W.2d at 911 (“agreement must be prior to or

contemporaneous with the criminal event”) (VI R.R. at 30).

In short, Napolez did not testify Brittany stole anything at all from the

residence, nor that she attempted to do so, nor that she entered the residence

intending to do so. If there was another burglary of Pope’s residence, we know

nothing about whether Appellant had anything to do with it.

13
During closing arguments the prosecutor lamented that “unfortunately, [he] didn’t’
realize...until yesterday” that, due to Appellant’s alleged presence on October 7, 2013 when the
forged check was passed, “Mr. Pope’s house had been burglarized more than once.” (VI R.R. at
76). Note that the State’s view here does not conflict with that of the trial court that “[c]learly, if
there was a burglary, there was a single burglary based on the evidence that’s been presented”.
(V R.R. at 221). There was evidence of only one burglary that, if proven, would inculpate
Appellant; but, of course, there could have been multiple burglaries that occurred that had
nothing to do with Appellant.
39
 Second, Napolez is unequivocal that the television was already there when

he arrived at Appellant’s trailer before the events described above occurred. (V

R.R. at 112; 126-127). Hence, while the television found in Appellant’s residence

undoubtedly came from Pope’s residence, nothing in the record shows Appellant

had anything to do with the television making its way to his place. And because,

despite the State’s most diligent efforts, (e.g., V R.R. at 112-114), none of the other

property stolen from Pope’s residence was ever connected to Appellant or found in

his trailer, there is simply nothing to show that when Pope’s house was burgled and

the television removed, Appellant had anything to do with it.14

Third, there is no evidence that, even if Brittany did not in fact commit theft

during the events described by Napolez, she attempted to do so. Nothing in the

record suggests, for example, that she tried and failed (“Man, this is too heavy to

carry out…”), that she was interrupted in the middle of thieving property (“It’s the

cops—run!”), that she could not find what she was looking for (“Let’s go home,

guys. It’s not here.”), and so forth.

14
While Napolez testified he received an Explode boombox from Appellant months after the
burglary, nothing shows this was the same Explode boombox alleged to have been stolen from
Appellant’s residence—only speculation could conclude otherwise. (IV R.R. at 27; 32) (V R.R.
at 113-114). Similarly, the two pairs of binoculars—one Bushnell and one Simmons—that
Investigator Boyd apparently observed in Appellant’s trailer were not shown to be the same ones
alleged to have been stolen from Pope. (IV R.R. at 31) (V R.R. at 80-82). See Nichols v. State,
479 S.W.2d 277, 278 (Tex. Crim. App. 1972) (“It is not sufficient identification to show that
goods were of the same brand as those that were stolen.”)
40
 Fourth, the State still has to show, not merely that Appellant committed

some act in furtherance of the burglary, but that he did so with the intent to

promote or assist the burglary, and that he committed this culpable act before the

burglary occurred pursuant to an agreement with Brittany. Morrison, 608 S.W.2d

at 235; Urtado, 605 S.W.2d at 911; Tex. Pen. Code 7.02(a)(2). Assisting Brittany

in leaving Pope’s residence after she committed burglary (if she did at that time),

would not be enough. Cf. Haley v. State, 113 S.W.3d 801, 810-11 (Tex. App.—

Austin 2003) (“Standing alone, proof that an accused assisted the primary actor in

making his escape is likewise insufficient, although accused’s conduct may

constitute an independent offense of hindering apprehension or prosecution.”). As

with the alleged burglary under Texas Penal Code Section 30.02(a)(1), the State

cannot show Appellant committed any such culpable act before the burglary

pursuant to an agreement: the record is devoid of any such evidence.

3. Addressing possible counterarguments from the State

The State may argue that Appellant’s undisputed possession of recently

stolen property—the television—coupled with his poor explanation for that

possession (telling the officers the television belonged to his sister, and Napolez

that it belonged to Brittany) shows he is guilty. (V R.R. at 53; 112). However,

“recent and unexplained possession of stolen property is merely a circumstance of

guilt and is not conclusive.” Hardesty v. State, 656 S.W.2d 73, 77 (Tex. Crim.

41
App. 1983). Hence, “once the permissible inference arises, sufficiency of the

evidence must still be examined according to applicable evidentiary standards of

appellate review since the inference is not conclusive.” Id.

In conducting the sufficiency review, besides the discussion of the evidence

given above, it ought not to be overlooked that while the trailer in which the

television was found belonged to Appellant, Brittany lived there as well. (V R.R.

at 170) (“Brittany and [Appellant] were an item and she was residing with him in

the camper”). Their shared control over the trailer means that the “recent and

unexplained possession” is just as attributable to Brittany as to Appellant. England

v. State, 727 S.W.2d 810, 811 (Tex. App.—Austin 1987, no pet.) (“An inference of

guilt of burglary based on the accused’s personal possession of stolen goods has

not been raised where the stolen property was found in a place where others had an

equal right and facility of access.”); Prather v. State, 128 Tex. Crim. 342, 343, 81

S.W.2d 528, 529 (1935) (“In order to warrant an inference of guilt from the

circumstance of possession of recently stolen property, such possession must be

personal and exclusive, must be unexplained, and must involve a distinct and

conscious assertion of property by the defendant… But the house or room must be

proved to be in his exclusive occupation. But if it were found lying in a house or

room in which he lived jointly with others equally capable of having committed the

theft, it is clear that no definite presumption of guilt could be made.”) (emphasis

42
added); McKnight v. State, 399 S.W.2d 552, 555 (Tex. Crim. App. 1966) (“The

circumstantial evidence, viewed in the perspective most favorable to the state,

shows only that appellant exercised joint control of the premises where the stolen

property was temporarily stored, and there is no evidence that appellant asserted

any control over the stolen property or that he was ever aware that the motor was

stolen.”).

Moreover, the State has not shown that Appellant a “conscious assertion of

right to the property”. England, 727 S.W.2d at 812. He never claimed the

television was his; in fact, he claimed his television was outside on the ground, and

the State’s own witness confirmed there was a “TV outside on the ground”. (V

R.R. at 41). Although Appellant denied having a 55-inch television in his trailer,

saying a television that large would not fit, it is undisputed that both he and one of

the officers initially thought the television in his trailer was 42 inches—hence

Appellant’s denial was, in fact, truthful. (V R.R. at 52; 72). And we should not

forget that it was Brittany who obstructed the officers from entering the trailer, but

Appellant who helped them by beginning to pry the door open with a

screwdriver—hardly the act of someone trying to conceal the fruits of a burglary.

(V R.R. at 38-39; 171-172).

As for selling the lawnmower to Glen Jolly, welding the trailer, allegedly

fabricating a receipt for the purchase of the trailer and lawnmower, and allegedly

43
being present during the passing of the forged check (or possibly even endorsing

it), (V R.R. at 94-97; 99; 118-120; 150-151) (VI R.R. at 29-30; but see 30)

(Defendant’s Ex. 2 and 7; State’s Ex. 30), each of these actions might be consistent

with complicity in some form of wrongdoing—receiving stolen property, forgery,

receiving a stolen check, etc.—but none of them establish Appellant’s complicity

in a burglary of Pope’s residence. For actions taken regarding the lawnmower and

trailer, these are oriented towards concealing and profiting from theft, whether

committed by Appellant or others, but they are not, in light of the rest of the

evidence discussed above, enough to establish Appellant’s complicity in a burglary

of Pope’s residence. Neither does being present when a forged check is passed

show that Appellant was present when that check was stolen from a habitation;

even forging the check himself (if that occurred) shows only that Appellant

committed forgery, not that he stole the check from Pope’s residence or was

criminally responsible as a party for doing so. And even if these facts raise

permissible inferences of guilt, those are offset by the careful sifting of the

evidence done above.

The State may also seize on the facts that Brittany and Pope were not close

and Pope did not even think Brittany had ever visited his house, making it unlikely

that any of her things would be in Pope’s residence, and thereby casting doubt on

her claim to be going to retrieve her own belongings. (IV R.R. at 19-20) (V R.R.

44
at 23-24). Well and good, but it does not show that Appellant was unjustified in

believing Brittany’s claim to repossessing her own possessions, or that he knew her

claim (offered by the State through Napolez, not by a defense witness) was false:

after all, he must have visited Brittany’s parents’ house at the same time Pope was

there, so he knew they had some relationship. (V R.R. at 18-19). And even if that

relationship was a poor one or virtually non-existent (IV R.R. at 20), it only lends

credence to Brittany’s claim that she got in an argument with her brother. (V R.R.

at 113).

Finally, we have the fact that Appellant’s alibi witness, Bobby Wisdom,

delivered testimony that was apparently not believed by the jury. (VIII R.R. at 9-

10). It is not clear, however, why the fact that the jury failed to believe an alibi

witness should have any effect on whether the evidence was otherwise sufficient to

support Appellant’s conviction. The evidence to establish each element of the

offense beyond a reasonable doubt must itself survive a “rigorous application of

the Jackson v. Virginia standard”, Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010), and whether the jury believed Wisdom’s testimony of

Appellant’s whereabouts on October 7, 2013 (the day the alleged burglary as

described by Napolez could not have occurred), or even his testimony regarding

being called to unload a television later that night at Appellant’s residence (a fact

which, even if false, would not show that Appellant had anything to do with the

45
burglary), seems to have no bearing on the question of whether the State carried its

independent burden to present legally sufficient evidence to obtain a conviction.

Conclusion

There is no evidence that, when Brittany entered Pope’s habitation, she

intended to commit theft. Quite the opposite: based on the only evidence

presented, she intended to re-appropriate her own goods, not appropriate someone

else’s. There is also no evidence that Brittany emerged from the residence having

stolen anything, nor that she even attempted to steal anything during her time in the

residence. And if there was another burglary on the same or another day, nothing

shows Appellant was complicit therein. As a result, the evidence is legally

insufficient to sustain Appellant’s conviction under the law of parties.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to

REVERSE the trial court’s judgment and RENDER a judgment of acquittal.

46
 Respectfully submitted:

/s/ Justin Bradford Smith
Justin Bradford Smith
Texas Bar No. 24072348

Harrell, Stoebner, & Russell, P.C.
2106 Bird Creek Drive
Temple, Texas 76502
Phone: (254) 771-1855
FAX: (254) 771-2082
Email: justin@templelawoffice.com

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE

I hereby certify that, pursuant to Rule 9 of the Texas Rules of Appellate
Procedure, Appellant’s Brief contains 9,507 words, exclusive of the caption,
identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, and certificate of compliance.

/s/ Justin Bradford Smith
Justin Bradford Smith

47
 CERTIFICATE OF SERVICE

I hereby certify that on August 19, 2015, a true and correct copy of

Appellant’s Brief was forwarded to the counsel below by eservice:

Gary W. Bunyard
Llano County Assistant District Attorney
P.O. Box 725
Llano, Texas 78639
Telephone: (325) 247-5755
Fax: (325) 247-5274
Email: g.bunyard@co.llano.tx.us

/s/ Justin Bradford Smith
Justin Bradford Smith

48