### CAUSE NUMBER 12-15-00017-CR

IN THE COURT OF APPEALS FOR THE TWELFTH APPELLATE DISTRICT OF TEXAS

AT TYLER

ARTHUR JAMES WILLIAMS

VS. THE STATE OF TEXAS

CAUSE NUMBER 31,592 IN THE 3 RD

JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS

APPELLANT'S BRIEF

Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 Email: cmcfall@mcfall-law-office.com Counsel for Appellant ACCEPTED 12-15-00017-CR TWELFTH COURT OF APPEALS

TYLER, TEXAS 10/5/2015 10:00:26 PM

Pam Estes CLERK

### IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appelhnt provides a complete list ofall parties and the names and addresses of Counsel: Defendant:

Defendant's Trial Counsel: Arthur James Williams 1200 East Lacy Street Palestine, Texas 75801 Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 State's Trial Counsel: Stanley Sokolowski First Assistant Criminal District Attorney Anderson County Courthouse 500 North Church Street Palestine, Texas 75801 Telephone: 903-723-7400 Facsimile: 903-723-7818SIOZ-S0-0I

### Appellant:

Appellant's Counsel: Arthur James Williams Estelle Unit 264 F.M. 3478 Huntsville, Texas 77320-3320 Colin D. McFall Attorney at Law 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269SIOZ-S0-0I



### Appellee's Counsel: Allyson Mitchell Criminal District Attorney Anderson County Courthouse 500 North Church Street Palestine, Texas 75801 Telephone: 903-723-7400 Facsimile: 903-723-7818TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL 2 TABLE OF CONTENTS 4 INDEX OF AUTHORITIES 5 STATEMENT OF THE CASE 7 STATEMENT REGARDING ORAL ARGUMENT .8 IS SUES PRESENTED I. THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A CONVICTION FOR BURGLARY OF A HABITATION... 9 STATEMENT OF FACTS 10 SUMMARY OF THE ARGUMENT 12 ARGUMENT 14 PRAYER 19 CERTIFICATE OF COMPLIANCE 20 CERTIFICATE OF SERVICE 21INDEX OF AUTHORITIES CASES PAGE FEDERAL Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)



### .. 14 TEXAS Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) 14 Cirul v. State, 863 TexoCrim. 8, 200 S.W. 1088, 1089 (1918) 17 De Vaughn v. State, 749 S.W.2d 62 (Tex.CrimApp.1988) 17 Dovalina v. State, 564 S.W.2d 378, 380 (TexCrim.App.1978) ..17 Gibbons v. State, 643 S.W.2d 700, 707 (Tex.Crim.App.1982). ..... ..17 Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App.2007) 14 Isassi v. State, 330 S.W.3d 633 (Tex.Crim.App.2010) 15 Montgomery v. State, 369 S.W.3d 188 (Tex.Crim.App.2012) 15SIOZ-S0-0ISIOZ-S0-0I

RULES AND STATUTES PAGE TEXAS PENAL CODE Section 15.01(a), Texas Penal Code 17 Section 30.02(a), Texas Penal Code 15 Section 30.02(a) (1), Texas Penal Code 15 Section 30.02(a) (3), Texas Penal Code 16 TEXAS RULES OF APPELLATE PROCEDURE Rule 9.4(i) (3), Texas Rules of Appellate Procedure 20 Rule 3 8.1(a), Texas Rules ofAppellate Procedure 2 Rule 38.1(e), Texas Rules of Appellate Procedure 8



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### STATEMENT OF THE CASE

On the 16 th

day of January 2014, an Anderson County Grand Juryreturned a single count Indictment, charging Appellant, in two alternative means, with Burglary of a Habitation (C.R., Vol. 1, Pg. 6). On the 4 th day of November 2014, Appellant plead not guilty to a single count of Burglary of a Habitation (R.R., Vol. 3, Pg. 13, L. 21). Later that same day, the jury found Appellant guilty of the single count of Forgery. (R.R., Vol. 3, Pg. 140, L. 24). On the 19 th

day of December 2014, the Court sentencedAppellant to thirty (30) years confinement in the Texas Department of Criminal Justice, Institutional Division. (R.R., Vol. 4, Pg. 39, L. 6).



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### STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Rule 38.1 (e), Texas Rules of Appellate Procedure, Appellant provides the following Statement Regarding Oral Argument Appellant does not request Oral Argument

### ISSUE PRESENTED

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A CONVICTION FOR BURGLARY OF A HABITATION.SIOZ-S0-0ISTATEMENT OF FACTS

JoAnn Morris (R.R., Vol. 3, F'g. 20, L. 12) and her husband (R.R., Vol. 3, Pg. 20, L. 24), Phillip Morris (R.R., Vol. 3, Pg. 21, L. 1), lived at 901 North Sycamore (R.R., Vol. 3, Pg. 20, L. 17), Anderson County (R.R., Vol. 3, Pg. 21, L. 24), Texas. (R.R., Vol. 3, Pg. 22, L. 1). On the 28

th day of June 2013 (R.R., Vol. 3, Pg. 41, L. 3) Officer Heavner (R.R., Vol. 3, Pg. 40, L. 11) responded to an alarm at 901 North Sycamore (R.R., Vol. 3, Pg. 41, L. 10). Officer Heavner approached the garage(R.R. Vol. 3, Pg. 41, L. 25), opened the garage door and saw Appellant inside the garage with tools in his hands. (R.R., Vol. 3, Pg. 42, L. 2) (R.R., Vol. 3, Pg. 43, L. 4). Officer Heavner pushed the door open, Appellant pushed back, and Officer:Heavner kicked the door. (R.R., Vol. 3, Pg. 43, L. 4). Appellant and the tools fell to the ground (R.R., Vol. 3, Pg. 43, L. 6). Officer Heavner placed Appellant under arrest (R.R., Vol. 3, F'g. 44, L. 14). At trial, Ms. Morris testified thatMr. Morris told her (R.R., Vol. 3, Pg. 27, L. 17) the scratches on the door(R.R., Vol. 3, Pg. 27, L. 14) were "pry marks." (R.R., Vol. 3, F'g. 32, L. 2). Ms. Morris also testified that the sVratches on the door (R.R., Vol. 3, F'g. 27, L. 14) had not been on the door before(R.R., Vol. 3, Pg. 27, L. 20) (R.R., Vol. 3, Pg. 38, L. 7), although Ms. Morris admitted that she had neveractually looked for marks on the door before. (R.R., Vol. 3, Pg. 38, L. 9). State's Exhibit 6 (R.R., Vol. 3, Pg. 31, L. 14), demonstrates the location of the "pry marks" (R.R., Vol. 3, Pg. 32, L. 2) (R.R., Vol. 3, Pg. 37, L. 21), below the color (R.R., Vol. 3, Pg. 32, L. 2), (R.R., Vol. 3, Pg. 32, L. 5), (R.R., Vol. 3, Pg. 32, L. 7), below the green marks. (R.R., Vol. 3, Pg. 37, L. 16), (R.R., Vol. 3, Pg. 37, L. 18). Much like the "pry marks," Ms. Morris had never noticed the green markson the door before. (R.R., Vol. 3, Pg. 38, L. 14). In contrast, Officer Heavner testified the "pry marks" were exhibited by State's Exhibit 4, belowwhere the doorknob connects to thedoorframe, where the paint is scuffed (R.R., Vol. 3, Pg. 47, L. 23) (R.R., Vol. 3, Pg. 57, L. 22), (R.R., Vol. 3, Pg. 58, L. 3) and were not pictured in State's Exhibit 6. (R.R., Vol. 3, Pg. 48, L. 5). Officer Heavner later testified that there was in fact "pry marks" in State's Exhibit 6 (R.R., Vol. 3, Pg. 55, L. 3), below the green marks (R.R., Vol. 3, Pg. 55, L. 6). Officer Heavner also testified there were "pry marks" in State's Exhibit :5. (R.R., Vol. 3, Pg. 57, L. 24) (R.R., Vol. 3, Pg. 28, L. 9). Appellant testified that he entered the garage of Ms. Morris to hide from a group of individual who had just robbed and assaulted him (R.R., Vol. 3, Pg. 77, L. 12).SUMMARY OF THE ARGUMENT

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A CONVICTION FOR BURGLARY OF A HABITATION. The legal sufficiency standard is the only standard a reviewing Court should apply in determining whether the evidence is sufficient to support a guilty vaict. The critical inquiry is, in viewing the evidence in the light most favorable to the prosecution after a verdict of guilt, whether any rational jury could have found the essential elements of the crime beyond a reasonabledoubt. Each fact does not need to directly and independently point to the guilt of the Appellant as long as the cumulative force of all the incriminating circumstances is ultimately sufficient to support theconviction. When performing a legal sufficiency review,Courts may riot reevaluate the weight and credibility of the evidence and substitute their own judgment for that of the jury. When faced with record supporting contradictory inferences we presume the jury resolved conflicts in favor of the verdict. A person commits the offense ofBurglary of a Habitation if, without the effective consent of the owner, the person enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit theft or

### enters a building or habitation and commits or attempts to commit theft.SIOZ-S0-0IARGUMENT

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A CONVICTION FOR BURGLARY OF A
HABITATION. The legal sufficiency standard is the only standard a reviewingCourt should apply in determining whether the evidence is sufficient to support a guilty verdict Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010). Thecritical inquiry is, in viewing the evidence in the light most favorable to the prosecution after verdict of guilt, whether any rational jury could have found the essential elements of the crime beyond a reasonabledoubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010) (Holding that all Texas criminal cases are only to be reviewed under the standard announced inJackson v. Virginia, 443 U.S. 307, 319, 99 S.Cto 2781, 61 L.Ed.2d 560 (1979) Each fact does not need to directly and independently point to the guilt of the Appellant as long as the cumulative force of all the incriminating circumstances is ultimately sufficient to support theconviction. Circumstantial evidenceis equally as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to support aconviction. Hooper v. State, 214 S.W.3d 9, 13(Tex.Cri m.App.20 0 7).

When performing a legal sufficiency review, Courts may not reevaluate the weight and credibility of the evidence and substitute their own judgment for that of the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex.Crim.App.2012); see also Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010) ("[O]ur role is not to become a thirteenth juror."). When facedwith record supporting contradictory inferences, we presume the jury resolved conflicts in favor of the verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex.Crim.App.2012) A person commits the offense of Burglary of a Habitation if, without the effective consent of the owner, the person enters a habitation,or a building (or any portion of a building) not then open to the public, with intent to commit theft or enters a building or habitation and commits or attempts to ommit theft. See Section 30.02(a), Texas Penal Code.

Section 30.02(a) (1), Texas Penal Code A person commits an offense if, without the effective consent of the owner, the person enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit theft Section 30.02(a) (1), Texas Penal Code. The only evidence presented at trial thatarguably addressed Appellant'sintent to commit theft as he entered the habitation of Phillip Morris., on the 2g night of June 2013, is the conflicting testimony egarding the scratches a- "pry marks". Ms. Morris identified different marks on the door than Officer Heavner identified as "pry marks". In fact, Ms. Morris did not recognize anything on the door as "pry marks", until her late husband informed her fiat there were "pry marks" on the door. However, Officer Heavner identified completely different marks on the door as "pry marks." Officer Heavner even denied some marks were "pry marks" until he was informed, that Ms. Morris had identified a completely different mark as a "pry mark." Even after reviewing the evidence in the light most favorable to the prosecution no rational jury could have found the essential elements ofBurglary of a Habitationbeyond a reasonable doubt. The conflicting and dubious testimony regarding the timing, origin and causation of the marks on the door, fail to evidence that Appellant possessed an intent to commit theft, when he entered the garage of Mr. Morris. As a result, norational jury could have found the essential elements ofBurglary of a Habitation beyond a reasonable doubt.

Section 30.02(a) (3), Texas Penal Code A person commits the offense if, without the effective consent of the owner, the person, enters a building or habitation and commits or attempts to commit theft Section 30.02(a) (3), Texas Penal Code.



### (z(

### It is undisputed that no theft actually occurred. Therefore,Appellee must prove Appellant attempted to commit theft. Criminal attempt is defined as follows: "A person commits an offense if, with specific intent to commit an offense, he does an act amouting to more than mere preparation that tends but fails to effect the commission of the offense intended." Section 15.01(a), Texas Penal Code. An attempt implies both an intent and an active effort to carry out and consummate the intent or purposeDovalina v. State, 564 S.W.2d 378, 380 (Tex.Crim.App.1978). "Attempt" is more comprehensive than "intent,' implying both a purpose and actual effort to carry that purpose into execution. Cirul v. State, 83 Tex.Crim. 8, 200 S.W. 1088, 1089 (1918). In any attempted criminal offense, the sufficiency of the evidence must be determined on a case-by-case basis. Gibbons v. State, 634 S.W.2d 700, 707 (Tex.Crim.App.1982). Conviction for an attempted criminal offense does not require accomplishment of every act short of actual commission of the offense.Id. at 706. However, Appellant must prove that after appellant's burglarious entry he attempted to steal property. Therefore, under the holding inDe Vaughn v. State, 749 S. W.2d 62 (Tex.Crim.App.1988), in proving the element of attempted theft, the State must prove that appellant had a specific intent to steal a particular article of propertyand that the accused engaged in anact that amounted to more than merepreparation that tended to accomplishhis intent to steal that particular article of property. Appellant's possession of two tools in Appellants arms,while still inside the garage, amounts to nothing more thanmere preparation, and does not tend to accomplish an intent to steal Mere preparation falls short ofattempt. Failing to prove attempt beyond a reasonable doubt, meansno rational jury could have found the essential elements ofBurglary of a Habitation.SIOZ-S0-0I

1 

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### PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays the Appellate Court find the evidence is legally insufficient to supportBurglary of a Habitation, reverse Appellant's conviction and render a judgment acquitting him ofsaid Burglary of a HabitationSIOZ-S0-0I

### CERTIFICATE OF COMPLIANCE

I, Colin D. McFall, Attorney of Record for the above styled Appellant, pursuant to Rule 9.400, Texas Rules of Appellate Procedure, hereby certify the number of words within Appellant's Brief attwo thousand, four hundred, thirty seven (2,437). RESPECTFULLY SUBMITTED,SIOZ-S0-0I



### COLIN D. FALL Attorney at Law Texas Bar Number: 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 24027498 Email: cmcfall@mcfall-law-office.com

aCt

### CERTIFICATE OF SERVICE

I, Colin D. McFall, Attorney of Record for the above styled Appellant, hereby certify service of a true and correct copy of the above and foreging document upon Anderson County Assistant Criminal District AttorneyScott Holden, at sholden@co.anderson.tx.u4 by email transmission, on the5 th day of October 2015. RESPECTFULLY SUBMITTED,SIOZ-S0-0I



### COLIN D. FALL Attorney at Law Texas Bar Number: 513 North Church Street Palestine, Texas 75801-2962 Telephone: 903-723-1923 Facsimile: 903-723-0269 24027498 Email: cmcfall@mcfall-law.-office.com