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

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 8/19/2015 4:30:45 PM JEFFREY D. KYLE Clerk
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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
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TABLE OF CONTENTS

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

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

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

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

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

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

 conviction for burglary as the principal actor because there is 

 no evidence that, by his own conduct, he entered Shane 

 Pope’s habitation.....................................................9

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

 conviction for burglary under the law of parties because there 

 is no evidence that Brittany Anderson entered Shane Pope’s 

 residence with intent to commit theft, that she in fact 

 committed or attempted to commit theft when she entered the 

 residence, or that there was an agreement with Appellant 

 before the burglary to commit the burglary.......................9

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

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

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

 conviction for burglary as the principal actor because there is 

 no evidence that, by his own conduct, he entered Shane 

 Pope’s habitation...................................................18

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

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

Law of Burglary..............................................................................21
4

Application................................................................................21-30

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

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

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

B. Nothing shows Appellant himself participated in removing the 

television from Pope’s residence, whenever that occurred.........29-30

Conclusion....................................................................................30

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

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

 conviction for burglary under the law of parties because there 

 is no evidence that Brittany Anderson entered Shane Pope’s 

 residence with intent to commit theft, that she in fact 

 committed or attempted to commit theft when she entered the 

 residence, or that there was an agreement with Appellant 

 before the burglary to commit the burglary.....................30

Argument.................................................................................32-46

Standard of Review.....................................................................32-33

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

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

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

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

1. There is no evidence that Brittany entered the residence with intent to 

commit theft, or that, in this regard, Appellant entered into an agreement 

with Brittany before the burglary to commit the burglary..............35-36
5

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
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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
7

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
8

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
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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.
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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 7

th 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 7th 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).
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 

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). 
12

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). 
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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).
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 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).
15

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).
16

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 
17

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.
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 

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.
19

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.
20

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.
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 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 
22

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 
23

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, 
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 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 
25

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.merriamwebster.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.merriamwebster.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).
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 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 
27

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. 
28

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.
29

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.
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 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 
31

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 
32

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

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

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

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

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

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

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

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

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

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

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

ARGUMENT

Standard of Review

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

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

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

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

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

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

pet. ref’d). The reviewing court examines legal sufficiency under the direction of 
33

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

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

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

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

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

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

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

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

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

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

which the defendant was tried.” Id.

Law of Burglary and Law of Parties

1. Burglary

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

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

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

[...]

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

Pen. Code § 30.02(a)(1)(3); (I C.R. at 6-7). 
34

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

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

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

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

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

2. Law of Parties

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

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

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

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

[...]

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

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

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

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

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

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

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

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

must prove some culpable act before or during the [offense].” Id. at 235. There 
35

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

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

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

(Tex. Crim. App. 1980). 

Application

1. There is no evidence that Brittany entered the residence with intent 

to commit theft, or that, in this regard, Appellant entered into an 

agreement with Brittany before the burglary to commit the burglary

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

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

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

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

Brittany’s intent before the alleged burglary. 

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

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

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

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

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

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

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

conclude Appellant is guilty of burglary based on soliciting, encouraging, 
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; Urtado, 605 S.W.2d at 911. Rather, there is evidence of an 

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

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

2. There is no evidence that Brittany attempted to commit or did 

commit theft after entering Pope’s residence, that Appellant had 

anything to do with any other possible burglary of Pope’s residence, 

or that Appellant and Brittany entered into any agreement prior to 

the burglary to commit the burglary

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

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

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

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

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

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

 

12 As will be explained shortly, nothing shows Brittany in fact took anything, or even tried to 

take anything, after she entered the residence. However, even if there were evidence that she had 

done either of those culpable acts, it would not show that Appellant knew her stated reason for 

going over to the residence was a pretext, nor would driving them away from the scene of the 

crime make Appellant a party to burglary. Morrison, 608 S.W.2d at 235 (“[a]cts committed after 

the [offense] was completed could not make appellant a party to the offense”). Furthermore, still 

lacking would be any evidence of a prior or contemporaneous agreement to commit burglary. 

Urtado, 605 S.W.2d at 911 (“agreement must be prior to or contemporaneous with the criminal 

event”). 
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). After Brittany returned to Appellant’s 

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

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

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

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

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

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

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

151) (Defendant’s Ex. 1). 
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 steal 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

home, he would not have overlooked their absence. (IV R.R. at 17; 21-26). 
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 Appellant had anything to do with any other burglary of Pope’s 

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

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

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

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

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

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

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

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

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

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

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

nothing about whether Appellant had anything to do with it.

 

13 During closing arguments the prosecutor lamented that “unfortunately, [he] didn’t’ 

realize...until yesterday” that, due to Appellant’s alleged presence on October 7, 2013 when the 

forged check was passed, “Mr. Pope’s house had been burglarized more than once.” (VI R.R. at 

76). Note that the State’s view here does not conflict with that of the trial court that “[c]learly, if 

there was a burglary, there was a single burglary based on the evidence that’s been presented”. 

(V R.R. at 221). There was evidence of only one burglary that, if proven, would inculpate 

Appellant; but, of course, there could have been multiple burglaries that occurred that had 

nothing to do with Appellant. 
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 found in 

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

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

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

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

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

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

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

guys. It’s not here.”), and so forth.

 

14 While Napolez testified he received an Explode boombox from Appellant months after the 

burglary, nothing shows this was the same Explode boombox alleged to have been stolen from 

Appellant’s residence—only speculation could conclude otherwise. (IV R.R. at 27; 32) (V R.R. 

at 113-114). Similarly, the two pairs of binoculars—one Bushnell and one Simmons—that 

Investigator Boyd apparently observed in Appellant’s trailer were not shown to be the same ones 

alleged to have been stolen from Pope. (IV R.R. at 31) (V R.R. at 80-82). See Nichols v. State,

479 S.W.2d 277, 278 (Tex. Crim. App. 1972) (“It is not sufficient identification to show that 

goods were of the same brand as those that were stolen.”)
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 assist the burglary, and that he committed this culpable act before the 

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

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

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

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

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

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

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

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

cannot show Appellant committed any such culpable act before the burglary 

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

3. Addressing possible counterarguments from the State

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

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

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

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

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

guilt and is not conclusive.” Hardesty v. State, 656 S.W.2d 73, 77 (Tex. Crim. 
42

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

evidence must still be examined according to applicable evidentiary standards of 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

theft, it is clear that no definite presumption of guilt could be made.”) (emphasis 
43

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

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

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

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

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

stolen.”). 

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

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

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

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

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

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

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

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

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

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

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

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

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

fabricating a receipt for the purchase of the trailer and lawnmower, and allegedly 
44

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

evidence done above.

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

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

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

her claim to be going to retrieve her own belongings. (IV R.R. at 19-20) (V R.R. 
45

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

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

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

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

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

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

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

at 113).

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

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

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

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

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

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

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

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

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

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

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

which, even if false, would not show that Appellant had anything to do with the 
46

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

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

Conclusion

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

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

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

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

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

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

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

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

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to 

REVERSE the trial court’s judgment and RENDER a judgment of acquittal. 
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 76502

Phone: (254) 771-1855

FAX: (254) 771-2082

Email: justin@templelawoffice.com

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE

I hereby certify that, pursuant to Rule 9 of the Texas Rules of Appellate 

Procedure, Appellant’s Brief contains 9,507 words, exclusive of the caption, 

identity of parties and counsel, statement regarding oral argument, table of 

contents, index of authorities, statement of the case, statement of issues presented, 

statement of jurisdiction, statement of procedural history, signature, proof of 

service, certification, and certificate of compliance.

/s/ Justin Bradford Smith 

Justin Bradford Smith
48

CERTIFICATE OF SERVICE

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

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

Gary W. Bunyard

Llano County Assistant District Attorney

P.O. Box 725

Llano, Texas 78639

Telephone: (325) 247-5755

Fax: (325) 247-5274

Email: g.bunyard@co.llano.tx.us

/s/ Justin Bradford Smith 

Justin Bradford Smith