1 CAUSE NO. 03

- 15 -00231- CR

_________________________________________________

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

AUSTIN DIVISION

_________________________________________________
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 ACCEPTED 03-15-00231-CR 6570243 THIRD COURT OF APPEALS

AUSTIN, TEXAS 8/19/2015 4:30:45 PM JEFFREY D. KYLE

CLERK2 IDENTITY OF PARTIES AND COUNSE L 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 Stat e 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 Distr ict Attorney Address, Phone, and Fax Same As Above Email: g.bunyard@co.llano.tx.us3 TABLE OF CONTENTS Identity of Part ies and Counsel............................................

............... ... 2 Tabl e of Contents.................................................

........................ . .3

- 5 Index of Authorities...........................................

........................... .. 6

- 8 Statement of the C ase..............................................
..................... ...... 9
Issue s Presented....

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

conviction for burgl ary 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 th e 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 ag reement with Appellant be fore the burglary to commit the burglary.

...... .. ............ ..9 Statement of Fa cts.........................................

.............................. 10

- 18 Summary of the A rgument...................................

........................ . . . 18

- 19 ISSUE ONE: The evidence is legally insufficient to support Appellan t’s

conviction for burglary as the principal actor because there is no evidence that, by his own conduct, he entered Shane Pope’s habitation ...................................................1 8 Argument.................................

.................................................. 20

- 30 Standard of Review

......................... ...... ...... ..................... ............ ....20 Law of Burglary.............................................................................. 214

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 the ft, that she in fact committed or attempted to commit theft when she entered the residence , or that there was an agreement with Appellant be fore the burglary to commit the burglary.

.................... 30 Argument

... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 32

- 46 Standard of Review..................................................................... 32

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

.. 3 3

- 35 1. Burglary.....................................................................

.. 33

- 34 2. Law of Parties...............................................................

. 34

- 35 Application..............................................................................

. 3 5

- 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............

.. 3 5

- 365

2. There is no evidence that Brittany attempted to commit or did commit theft after entering Pope’s residence, that Appell ant 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 St ate...............

... 41

- 46 Conclusion.................................................................................... 46 Prayer...............

........ ............................................................ . ........ 46 Certificate of Compliance..................................................................

. 47 Certificate of Service........................................................................ 486 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 Davil a 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 2 33 (Tex. Crim. App. 1980)

..................... ... ... ... ... ... ... . 34, 36, 39, 41, n. 12 Nichols v. State , 479 S.W.2d 277 (Tex. Crim. App. 1972)

................................................... ... 40, n. 147

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 Appeal s : 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

- 1 07

- 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.

— Hou ston [1st Dist.] 1982, no pet.)............

... ... ... ... ... .. 24, 26 Woods v. State , 01

- 92

- 00739

- CR, 1993 WL 177627 (Tex. App.

— Houston [1s t Dist.] May 27, 1993, pet. ref’ d) (not designated for publication)....................................

... ... ... ... 23

- 248

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 Jurisdiction s Jefferson v. State , 977 So.2d 431 (Miss. Ct. App. 2008).....................

... ... ... ... ... ... ... ... ... ... ... ... 27, n. 9 Secondary Source s 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. 89 S TATEMENT OF THE CASE Nature of the Case : This is an a ppeal 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).
I SSUE S PRESENTED ISSUE ONE: The evidence is legally insufficient to support Appellant’s conviction for burglary as the pr incipal actor because there is no evidence that , by his own conduct, h e 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 th at Brittany Anderson entered Shane Pope’s residence with intent to commit theft, t hat 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 burglar y.10 S TATEMENT OF FACTS When Shane Pope stopped at his house after work around five p.m. on October 7, 2013, he was certain his ho me had not been burglarized: the house was not ransacked and he did not notice his belongings missing. (IV R.R. at 20

- 21 ; 2 7

- 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 through 1

an d 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 7 th and October 8 th of 2013, and because he was certain his ho use had not been burglarized by the time he briefly stopped there on October 7 th , Pope was certain the burglary occurred “either between 5:30 October 7 th to 10:15 October 8 th .” (IV R.R. at 21) (V R.R. at 17; 26).

1 I t looked like “people were [sic] going through stuff...pictures [had been] moved and bo oks [had been] knocked over”. (IV R.R. at 28).11

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 di scovered this draft on October 8 th , 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 girlfrien d (who was also Pope’s half

- sister 2 ), 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, an d 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 Britt any’s involvement because of her connection to the $600 withdrawal from his account. See (Defendant’s Ex. 1) (V R.R. at 38).12

or knowing anything about a stolen trailer. (V R.R. at 39

- 40). When as ked 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 televis ion 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 resu lt, 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 Wils on. (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 Appellan t’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).13

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 televisi on distinguished it as Pope’s, such as distinctive wall mounti ng s 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 televisi on belonged t o 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

- i nches. (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 a long but did not participate. (V R.R. at 110

- 11). According to Napolez, when he arrived at Appe llant’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 w ere 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 h ave been stolen from Pope. (IV R.R. at 27; 32) (V R.R. at 113

- 114).14

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 lo ad [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 wh ose 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).15

Napolez’s ability to put together a detailed timeline was in doubt (perhaps because of his drug u se) , 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 t o Appellant’s residence and dropped these items off, and after that they wen t to the bank. (V R.R. at 112

- 115; 125

- 127; 141

- 145; 1 47

- 151). Napolez also denied signing a receipt evidencing him selling Appellant the lawnmower (V R.R. at 118

- 120; 139

- 141) (D efendant’s Ex. 2). On October 8, 2013, Glenn Jolly purchased the lawnmower fro m 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 lawnmo wer 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 Oc tober 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).16

some water because Appellant did not have a ri de. (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 fat her drove up. (V R.R. at 182). When Wi sdom 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 televisi on. (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 Appella nt’ 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 tes tified 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 car17

and another guy” was there whose name Appella nt’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 Napole z 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, sh e 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 autho rized 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 ha d 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

.18

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 he aring, assessed hi s 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, h e entered Shane Pope’s habitation

. The only evidence in the record of a potential burglary comes from Danny Napolez, who, rather t han 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 principa l 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.19

Stealing the lawnmower and trailer from Pope’s carport could not support the burglary conviction because a carport is not a “habitation” , n or (so far as the facts disclose) a structure “appurtenant to or connected with ” a habitation; it is not even an enclosed structure that could c onstitute 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 tha t 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 hab itation 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.20 ARGUMENT Standard of Review In evaluating legal suf

ficiency, the appellate court review s all the evidence in the light mo st favorable to the trial court’ s judgment to determine whether any rational jury could have found the essential elements of the of fense 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 u nder 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 cha rge. 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 th eories of liability, and adequately describes the particular offense for which the defendant was tried. ” Id

.21

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 t he 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 connec ted 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. Appell ant did not enter Pope’s habita t i on Althoug h 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 Appell ant did not enter Pope’s habitation

. (V R.R. at 166; 221). Danny Napolez is the only witness who testified as to what happe ned during the alleged burglary , and22

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 i n 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 legal ly 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 A ppellant 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 re d 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 , ( I V R.R. at 26 ) , but a n open carpor t23

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 6 81, 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). Thi s 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, n o 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) (concludi ng 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 [1s t Dist.] May 27,24

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 W hite 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
W oods 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 carport25

is certainly not enclosed ; 7 Pope did not testify that he conside red 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 n eithe r 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

- 3 20. 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, becau se of unorthodox design, meet the definition of “outbuilding”. (IV R.R. at 111; 114 ).26

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 necessa rily 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 mu st 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

o btain 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 i napplicable 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 b uilding requires an enclosed structure, whereas burglary of a habitation does not. Id . at 642. Yet even if true, this does no t resolve27

the instant question because the fact that a structure is unenclosed may nevertheless be relevant in determining whethe r i t is part of a habitation

. S ee 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 s tairway 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 pa rt 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 , 5 34 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’” contai ns 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 831.28

its conclusion by citing Day , which included a c arport 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 i nference 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 burgla ry statute. Day , 534 S.W.2d at 685; s ee 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 s tairway 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 T he 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 685.29

with the body.”). While part of the trailer and lawnmower must have been under the carport, nothing shows Appellant must have entered th e 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 an y rate, to conclude anything more requires speculation.
B. Nothing shows Appellant himself participated in removing the t elevision from Pope’s r esidence, w henever that o ccurred 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 th e 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 any thing 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 resi dence with anything at all.30

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 Appe llant 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 th e 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 w ith him. This31

alone is not enough to show that she entered Pope’s residence with intent to commit theft because one canno t purloin one’s own possessions

. Nothing shows Brittany committed or attempted to commit theft after entering Pope’s residence. Signi ficantly, 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 reside nce 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 sh ows 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 App ellant 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 right32

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 f

act 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 w as 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 St ate’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 review s all the evidence in the light mo st favorable to the tri al court’ s judgment to determine whether any rational jury could have found the essential elements of the of fense 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.C t. 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 of33

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 j ury 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).34

For the first method, the mens rea

— intent

— is supplied by the statute itself, while for the second, the culpable mental stat e 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 Part ies “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. Cri m. 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. There35

must be, “in addition to phys ical 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 evid ence 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 e vents 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. Co de § 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). S ince 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,36

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; Ur tado , 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 comm it 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 th e 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 pr evious 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. Morriso n , 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 contempo raneo us with the criminal event”)

.37

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). Aft er 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 for ged chec k

— 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 Octo ber 8, 2013

. (IV R.R. at 21) (V R.R. at 26; 112

- 115; 125

- 127; 141

- 145; 147

- 151 ) (Defendant’s Ex. 1).38

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 st eal the checkbook s , 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 tha t 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 st olen 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 be en 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 ar rived home, he would not have overlooked their absence. (IV R.R. at 17; 21

- 26).39

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 Appel lant 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 criminal ly 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 c ould not make appel lant 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, no r 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 hous e 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.40

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 fo und 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 desc ribed 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 n ot find what she was looking for (“ Let’s go home, guys. I t’s not here.”) , and so forth.

14 While Napolez testified he received an E xplode 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. ”)41

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 assi st 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 residenc e 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 insuffici ent, 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 bef ore the burglary pursuant to an agreement: the record is devoid of an y such evidence. 3. Addressing possible c ounterarguments 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 mer ely a circumstance of guilt and is not conclusive.” Hardesty v. State , 656 S.W.2d 73, 77 (Tex. Crim.42

App. 1983). Hence, “once the permissible inference arises, sufficiency of the evidence must still be examined according to applicable evidentiary standar ds 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 attribu table 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 foun d 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 p ossession 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 o r room in which he lived jointly with others equally capable of having committed the theft, it is clear that no definite pres umption of guilt could be made. ”) (emphasis43

added) ; McKnight v. State , 399 S.W.2d 552, 555 (Tex. Crim. App. 1966) (“ The circumstant ial 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 s tolen property or that he was ever aw are 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 c laimed 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). A lthough 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 w e 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 Gle n Jolly, welding the trailer, allegedly fabricating a receipt for the purchase of the trailer and lawnmower, and allegedly44

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 respon sible as a party for doing so. And even if these facts raise permissible inferences of guilt, those ar e offset by the careful sifting of the evidence done above. The State may also seize on the fact s 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 P ope’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.45

at 23

- 24) . Well and good, but it does not show that Appellant was unjustified in believing Brittany’s claim to r epossessing 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 al ibi 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 o therwise 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 t elevision later that night at Appellant’s residence (a fact which, even if false, would not show that Appellant had anything to do with the46

burglary), seems to have no bearing on the question of whether the State carried its independent burden to present l egally 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

s hows Appellant was complicit therein. As a result, the evidence is legally insufficient to sustain Appellant’s conviction under the law of parties.
P RAYER WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to REVERSE the trial court’s judgment and RENDER a judgment of acquittal.47 Respectfully submitted: /s/ Justin Bradford Smith Justin Bradford Smith Texas Bar No. 24072348 Harrell, Stoebner, & Russell, P.C. 2106 Bird Creek Drive Temple, Texas 76 502 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 Ap pellate 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, statem ent of jurisdiction, statement of procedural history, signature, proof of service, certification, and certificate of compliance

.
/s/ Justin Bradford Smith Justin Bradford Smith48 CERTIFICATE OF SERVICE I hereby certify th at on August 19 , 201 5 , a true and correct copy of Appellant’s Brief was forwarded to the counsel below by e service: Gary W. Bunyard Llano County Assistant District Attorney P.O. Box 725 Llano, Texas 78639 Telephone: ( 325 ) 247

- 5755 Fax: ( 325) 247

- 527 4 Email: g.bunyard@co.llano.tx.us /s/ Justin Bradford Smith Justin Bradford Smith