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

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

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