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 3RDJUDICIAL 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

 RECEIVED IN 12th 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: 903-723-7818 

SIOZ-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: 903-723-0269 

SIOZ-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: 903-723-7818 
TABLE 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 21 
INDEX 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) 15 

SIOZ-S0-0I 
SIOZ-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 

ze 
STATEMENT OF THE CASE 

On the 16thday 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 4thday 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 19thday 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). 

7 
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-S0-0I 
STATEMENT 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 28thday 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 never 
actually 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-S0-0I 
ARGUMENT 

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's 
intent 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 property 
and 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 s). 
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 Habitation 

SIOZ-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 the5thday 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