NO. 06-15-00063-CR
* * * * * * * * * * * * * *
IN THE COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS

TEXARKANA TEXAS

* * * * * * * * * * DESMOND JUWON WOODS, Appellant VS. THE STATE OF TEXAS,

Appellee * * * * * * * * * * Appealed from the 76 TH District Court Morris County, Texas Trial Court No. 10,920-CR

__________________________________________________________________ BRIEF OF APPELLANT

__________________________________________________________________ EBB B. MOBLEY State Bar # 14238000 Attorney at Law 422 North Center St.-Lower Level P. O. Box 2309 Longview, TX 75606 Telephone: (903) 757-3331 Facsimile: (903) 753-8289 ebbmob@aol.com
ATTORNEY FOR APPELLANT ACCEPTED 06-15-00063-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 10/30/2015 4:27:33 PM DEBBIE AUTREY

CLERKPage 1 of 14 NO.06-15-00063-CR

DESMOND JUWON WOODS, Appellant VS. THE STATE OF TEXAS,

Appellee

__________________________________________________________________

IDENTITY OF PARTIES AND COUNSEL Pursuant to T.R.A.P. 38.1(a)

__________________________________________________________________ Appellant: DESMOND JUWON WOODS Hutchins Stat e Jail

Inmate #1996056 Dallas, Texas 75241 Appellant's JERRY PRATT JR. 603 Broadnax trial counsel: Attorney at Law Dainge rfield, Texas 75638 State's trial STEVE COWAN 500 Broadnax counsel: Morris County Attorney D aingerfield, Texas 75638 Trial Judge: DANNY WOODSON P. O. Box 399 District Judge Mt. P leasant, Texas 75456 Appellant's EBB B. MOBLEY P. O. Bo x 2309 counsel on appeal: Attorney at law Longview, TX 75606 State's counsel STEVE COWAN 500 Broadnax on appeal: Morris County Attorney Daingerfield, Texas 75638Page 2 of 14 TABLE OF CONTENTS Page IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 STATEMENT OF FACTS . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . .5-10 ISSUE RESTATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Is there sufficient evidence to sustain the judgmen t of conviction? SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 .CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Page 3 of 14 INDEX OF AUTHORITIES Cases Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987) . . . . . . . . . . . . . . . . .13 Bell v. State, 326 S.W.3d 716, 720 (Tex.App. - Dallas 2010, pet. d ism’d) . . . . . . . . . 11 Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . . . . . 11 Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . . . .13 Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . .11,12,13 Horton v. State, 394 S.W.3d 589, 592 (Tex.App. - Dallas 2012, no pet .) . . . . . . . . . . .12 Jackson v. Virginia, 443 U.S. 307, 319 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997) . . . . . . . . . . . . . . . . . . . . 12 Robertson v. State, 888 S.W.2d 493 (Tex.App. - Amarillo 1994 pet. ref’d ) . . . . . . . . .13 Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012) . . . . . . . . . . . . . . . . . . . . . 13 Statutes Penal Code §28.03(a)(1) . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 Penal Code §28.06(b) . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

All references to Texas statutes, rules, etc. are t o the latest edition published by West Publishing Company, unless otherwise indicated

.Page 4 of 14 STATEMENT OF THE CASE This is an appeal for conviction for felony crimina l mischief. DESMOND JUWON WOODS was tried and convicted by a jury. The court then assessed punishment at eight (8) years confinement. CR-108. This case is a companion case to No. 06-15-00068-CRpending in this court wherein DESMOND JUWON WOODS was convicted of felony theft of copper and assessed punishment of 2 years in state jail. The cases were tried together and the sentences run concurrently. The State is referred to as the State and the Appel lant is referred to as the defendant, the Appellant, or Woods.

ISSUE PRESENTED Is there sufficient evidence to sustain the judgmen t of conviction?Page 5 of 14 STATEMENT OF FACTS HERSHEL STROMAN Hershel Stroman testified for the State. Deputy Stroman was a deputy sheriff for Morris County. 3 RR 32. Deputy Stroman testif ied that he took a call from Mrs. Bullock on December 24, 2012 regarding her chicken houses and missing copper wiring. 3 RR 34. He stated that Mrs. Bullock repo rted that her copper wire had been taken from her chicken houses. He said that Mrs. B ullock had six chicken houses and that four of them were vandalized and the copper wa s removed. 3 RR 35. Deputy Stroman met Mrs. Bullock at the scene and she told him that someone had stripped the wire out of her chicken houses. He found vanda lism and evidence of theft at the scene. 3 RR 44. He testified that there were wire s where the copper was cut. He also stated that there was yellow styrofoam insulation i n the buildings. 3 RR 45. The yellow foam covered the wires. 3 RR 46. Deputy Stroman testified that the wire was cut in numerous different spots. 3 RR 47. Deputy Stroman testified that he searched around the outside of the chicken houses. 3 RR 49. He stated that he followed a foam trail through the woods. 3 RR 52-53. He test ified that there was a fence line with styrofoam insulation at the fence and several bits of styrofoam where the wire would have been pulled through the fence. 3 RR 55. He stated that there were bits of styrofoam stuck to a fence post. 3 RR 56. Depu ty Stroman testified that the styrofoam trail led him to 585 County Road 1231, th e home of Desmond Woods. He stated that Mr. Woods’s house is approximately one- half to three-quarters of a mile from Mrs. Bullock’s chicken houses. He said that h e followed the foam trail from Mrs. Bullock’s farm to Mr. Woods’s house. Deputy S troman said there was a burn pile located at the residence of 585 County Road 12 31 with styrofoam insulationPage 6 of 14

with pieces in it. 3 RR 58. He confirmed that itwas the same type of styrofoam insulation that he had been trailing and that the trail led him directly to the burn pile. 3 RR 59. He went on to say that there were other burned areas beside the house. He testified that there was a 3500 Chevrole t truck, license plate AD2-2120 or AU2-2120 at the house. 3 RR 60. Deputy Stroman testified that after he walked through the woods to the burn pile, he went Road 1231. He said that he knew that to be the residence of Desmond Woods. He stated that he knocked on the door but no one answered. He said he then tookphotos of the burn pile and backyard. 3 RR 63-64. Deputy Stroman testified that he made ef forts to determine what happened to the copper that was stolen. He said that he went t o Daingerfield Iron & Metal and made contact with Mike and Jessica Rice, the owners . He stated that to his knowledge there were only two places in Morris Coun ty that can buy copper, Daingerfield Iron & Metal and John’s scrap. He sai d that he inquired about copper purchases at Daingerfield Iron & Metal. 3 RR 64. Deputy Stroman testified that he ascertained that Mr. Woods had made copper sales to Daingerfield Iron in the time period of November and December and that Daingerfie ld Iron still had some of the iron it had just bought from Mr. Woods. He said t hat he went to Daingerfield Iron on December 24 th . 3 RR 65. Deputy Stroman stated that the wire Da ingerfield Iron had on hand that it had recently purchased from Mr. Woods was a different gauge and style of wire than the wire that was stolen from Mr s. Bullock’s chicken houses. 3 RR 67. He said that this wire was significant because it appeared to be burned. 3 RR 66. Deputy Stroman testified that he then did an affida vit and requested a warrant for Mr. Woods’s arrest for the theft of copper. 3 RR 68. Deputy Stroman stated that hePage 7 of 14

arrested Mr. Woods on December 26 th . 3 RR 69. Deputy Stroman testified that he took Mr. Woods int o custody for the copper theft, read him his Miranda rights, but did not obt ain a written statement. 3 RR 70. He said that he interviewed Mr. Woods on the 26 thin his office at the Morris County sheriff’s office but did not obtain a recorded stat ement. 3 RR 71. Deputy Stroman testified that according to the Rice ’s records, Mr. Woods had made substantial sales of copper from November 20, 2012, throughout November and December up until the time of the burglary. He sai d that according to those records several hundred pounds of copper was purchased by the scrap yard. 3 RR 74. Deputy Stroman testified that there was a receipt, signed by Mr. Woods on November 27, 2012. The receipt included Mr. Woods’s license num ber and identified a vehicle as a Chevy, model 3500, color gray, license plate numb er AU2-2120. The receipt reflected that Daingerfield Iron purchased metal fr om Mr. Woods on November 27, 2012, including twenty-four pounds of #1 copper. D eputy Stroman testified that the records reflected that on November 20th, Daingerfie ld Iron had purchased 142 pounds of #1 copper from Mr. Woods. He stated thaton November 21 st , Daingerfield Iron purchased 75 pounds of #1 copper from Mr. Wood s. 3 RR 7. He said that records further reflected that on November 23 rd , Daingerfield Iron purchased 24 pounds of #1 copper. On November 27 th , Daingerfield Iron purchased four pounds of copper from Mr. Woods. He said that on November 30 th , Daingerfield Iron purchased seventeen pounds from Mr. Woods. On Dece mber 12 th , Daingerfield Iron purchased twelve pounds of #1 copper from Mr. Woods . Deputy Stroman testified that on December 14 th , Daingerfield Iron purchased twenty-four pounds of copper from Mr. Woods. On December 17 th , Daingerfield Iron purchased two pounds ofPage 8 of 14

copper from Mr. Woods. On December 18 th , Daingerfield Iron purchased five pounds of copper from Mr. Woods. 3 RR 76. He conf irmed that on December 20 th , Daingerfield Iron purchased ten pounds of #1 copper from Desmond Woods. 3 RR 77. On cross examination, Deputy Stroman testified thathe did not determine how much wire was taken from the chicken houses. He said th at he did determine that the house had not had chickens in it in over a month. He sta ted that he did not check the date, but only went by Mrs. Bullock’s word. He said thathe did not really know when the copper could have come out. 3 RR 84. Deputy Strom an testified that he spoke with Robin Allen and she said that she saw a tall man wi th a black shirt on around the chicken houses on approximately December 19 th . He said that she told him further than she checked the houses but did not see anythin g. 3 RR 92. Deputy Stroman stated that he did not know the gauge of the wire that was taken out of the chicken houses. 3 RR 93. On redirect examination, Deputy Stroman testified that the copper stolen was 100% copper. 3 RR 106. During re-cross examination, Deputy Stroman testifi ed that he was not aware of any copper tubing having been taken out of the c hicken houses and that he did not report any copper tubing being taken out. 3 RR 107

. RANDY ACKER Randy Acker testified for the State. He was the ow ner of Acker Poultry Supply in Pittsburg, Texas. 3 RR 111. He said that he bu ilds poultry houses and equips poultry houses. He said that he also repairs poultry houses and gives estimates on damaged poultry houses when vandalized. He testifi ed that he and one of his workersPage 9 of 14

went out to Mrs. Bullock’s farm to look at the dama ge that had been done to her chicken houses. 3 RR 112. He said that Ricky Rich ardson took the measurements of what repairs needed to be done. 3 RR 112-113. He said that he made the repairs and the estimate was $23,423.05. 3 RR 113. He sta ted that the repairs to house number one totaled $6,046.43. The repairs to house number three totaled $6,046.43. The repairs to house number four totaled $6,046.43. The repairs to house number two totaled $9,283.76. 3 RR 114. Mr. Acker testified that the total cost of the repairs was over $27,000. 3 RR 115. On cross examination, Mr. Acker testified that appr oximately 4,070 feet of wire was taken out of each house. He said it was 12/2 R omex with gound; twelve guage. 3 RR 116. On re-direct examination, Mr. Acker test ified that he knew how much wire he had to replace, but did not know how much wire was taken out of the chicken houses. 3 RR 119. MIKE RICE Mike Rice testified for the State. He was the owne r of Daingerfield Iron and Metal scrap yard. 3 RR 122. He said that his wife , Jessica Rice, also owns and works at the scrap yard. He said that he knows Desmond W oods and that Mr. Woods has sold copper to his business. 3 RR 123. Mr. Rice t estified to the number of pounds of copper Mr. Woods sold to him in November and Dec ember. 3 RR 126. Mr. Rice stated that #1 copper will be bigger than a pencil lead in wire or copper tubing. He said this type of copper could be more than 50% cop per. 3 RR 130. Mr. Rice testified that Mr. Woods sold him wire on December 24 th , but it was not the kind of wire that came out of the chicken houses. 3 RR 135

.Page 10 of 14

ALICE BULLOCK Alice Bullock testified for the State. Mrs. Bulloc k testified that she called the sheriff’s department on December 24, 2012 because s he had no power in four of her chicken houses. 3 RR 140. She said that she had b een without chickens for over a month or more; that the last chickens went out in the middle of November. 3 RR 141. She said that she had not had any reason to be in t he chicken houses that had been vandalized since the chickens went out. 3 RR 142. She said that the wires were stripped and clipped then jerked off the wall and d rug out the back door. 3 RR 143. Mrs. Bullock testified that when she found out she had no power she called Mr. Acker who sent two men out to repair it. The men f ound that she had no electrical wiring and that was why she had no power. She said that she then called the sheriff. Mrs. Bullock testified that when Officer Stroman arrived they walked around the chicken house to the back and found a trail of pieces of foam and followed the foam across her property into neighboring property. 3 RR 145.Page 11 of 14 ISSUE RESTATED Is there sufficient evidence to sustain the judgmen t of conviction?

SUMMARY OF THE ARGUMENT There is no testimony by any State’s witness that c onnects appellant to any damage of the Bullock chicken houses. The defenda nt’s possible presence at or near the scene of the crime, without other evidence link ing him to commission of the damage in question, is not sufficent to prove beyon d a reasonable doubt the defendant committed criminal mischief. A finding of guilt ba sed on nothing more than mere speculation should be reversed and a judgment of aq uittal rendered.

ARGUMENT AND AUTHORITIES In reviewing the legal sufficiency of the evidence, this count reviews all the evidence in the light most favorable to the verdictto 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 (1979)); Bell v. State, 326 S.W.3d 716, 720 (Tex.App. - Dallas 2010, pet. dism’d) (citing Brooks, 323 S.W.3d at 898). Legal sufficiency is analyzed under the direction of the Brooks opinion, while giving deference to the responsibility of the trier of fact “to fairly reso lve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from ba sic 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). “We defer to the jury’s determinations of the witnesses’ credibility and the weight to be given their testimony because the jury is the sole judge of those matters.” Bell, 326 S.W.3d at 720 (citing Brooks, 323 S.W.3d at 899).Page 12 of 14

Legal sufficiency of the evidence is measured by th e elements of the offense as defined by the “hypothetically correct jury char ge.” Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); Horton v. State, 394 S.W.3d 589, 592 (Tex.App. - Dallas 2012, no pet.) . The hypothetically correctjury charge “accurately sets out the law, is authorized by the indictment, does not unne cessarily increase the State’s burden of proof or unnecessarily restrict the State ’s theories of liability, and adequately describes the particular offense for whi ch the defendant was tried.” Horton, 394 S.W.3d at 592 (quoting Malik, 953 S.W.2d at 240). A person commits criminal mischief by damage or des truction if he intentionally or knowingly damages or destroys the tangible property of an owner without the owner’s consent. Penal Code §28.03(a)( 1). The amount of pecuniary loss to the owner determines the degree of the offe nse. If the property is damaged, the pecuniary loss is “the cost of repairing or res toring the damaged property within a reasonable time after the damage occurred.” Pena l Code §28.06(b). Deputy Stroman followed a trail of insulation from the chicken houses over the hills and through the woods to the rear of a reside nce at 585 CR 1231 in Morris County. He saw a burn pile with foam scrap and saw a pickup truck with the same license number as a truck driven by the appellant w hen he sold scrap metal to Daingerfield Iron and Metal. The address in questi on appeared on a number of official law enforcement records concerning the app ellant. But a mailing address is often a matter of convenie nce. A license plate number identifies the owner of a certain vehicle, but not the whereabouts of that vehicle or any particular driver or its use for any particular purpose on any given occasion. Because factfinders are permitted to make reasonabl e inferences, both direct and circumstantial evidence are probative to a case and it is possible for circumstantial evidence alone to be enough to estab lish guilt. Hooper v. State , 214Page 13 of 14

S.W.3d 9, 14-15 (Tex.Crim.App. 2007); Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). The standard of review for s ufficiency of the evidence is the same whether the evidence is direct or circumstanti al. Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012). Not every fact presented must directly indicate the defendant is guilty, but the cumulative force of th e evidence can be sufficient to support a finding of guilt. Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987). Mere possible presence at the scene of the crime is insufficient to support a conviction . See Robertson v. State, 888 S.W.2d 493 (Tex.App. - Amarillo 1994 pet ref’d). A strong suspicion or mere probability of guilt are insufficient. In examining the evidence, factfinders are not permitted to make conclusions based on unsupported inferences or to guess at the possible meaning of apiece of evidence. Hooper, 214 S.W.3d at 15-16. While such a guess may be a reaso nable one, it is not sufficient to support a finding of an element beyond a reasonable doubt because it is not based on facts. The evidence as to criminal mischief is muc h less than for theft of copper. Argument and inference are not enough to sustain a conviction.Page 14 of 14 PRAYER Upon the issue presented, the judgment of the trial court should be reversed and a judgment of acquittal rendered.

Respectfully submitted, EBB B. MOBLEY Attorney at Law 422 North Center St - Lower Level. P. O. Box 2309 Longview, TX 75606 Telephone: (903) 757-3331 Facsimile: (903) 753-8289
/s/ Ebb B. Mobley EBB B. MOBLEY State Bar # 14238000 ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE I certify that this brief contains 3224 words according to the computer program used to prepare the document. /s/ Ebb B. Mobley EBB B. MOBLEY
CERTIFICATE OF SERVICE A copy of this brief was provided to Steve Cowan, M orris County Attorney, 500 Broadnax, Daingerfield, Texas 75638 on the 30 thday of October, 2015, by e-file. /s/ Ebb B. Mobley EBB B. MOBLEY