IN THE COURT OF APPEALS FOR THE 

SIXTH DISTRICT OF TEXAS AT TEXARKANA 

THE STATE OF TEXAS § 

APPELLANT § 

§ 

v. § 

§ 

JAMEL MCLELLAND FOWLER, § 

APPELLEE § 

No. 06-16-00032-CR 

STATE'S BRIEF 

FROM THE 196TH DISTRICT COURT 

HUNT COUNTY, TEXAS 

TRIAL CAUSE NUMBER 30,511 

THE HONORABLE J. ANDREW BENCH, JUDGE PRESIDING 

NOBLE DAN WALKER, JR. 

District Attorney, in and for 

Hunt County, Texas 

G CALVIN GROGAN V 

Assistant District Attorney 

State Bar Number- 24050695 

P.O. Box 441 

4th Floor, Hunt County Courthouse 

Greenville, Texas 75401 

Telephone Number - (903) 408-4180 

Facsimile Number- (903) 408-4296 

ACCEPTED

06-16-00032-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

8/12/2016 3:48:24 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 8/12/2016 3:48:24 PM DEBBIE AUTREY Clerk
TABLE OF CONTENTS 

TABLE OF CONTENTS ........................................................................................... 2 

TABLE OF AUTHORITIES ..................................................................................... 3 

STATEMENT OF CASE ......................................................................... 5 

ISSUES PRESENTED .......................................................................... 7 

SUMMARY OF THE STATE'S ARGUMENTS .................................................... 7 

STATEMENT OF FACTS ....................................................................................... 7 

STATE'S ISSUE- TRIAL COURT ABUSED ITS DISCRETION ...................... 14 

STANDARD OF REVIEW ................................................................. 14 

TRIAL COURT CORRECTLY DENIED APPELLEE'S MOTION FOR 

DIRECTED VERDICT- SAME STANDARD OF REVIEW FOR LEGALLY 

INSUFFICIENT EVIDENCE ............................................................................ 15 

EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE APPELLEE 

COMMITTED BURGLARY OF A BUILDING ON NOV. 12,2014 ............. 17 

PRAYER .................................................................................................................. 24 

CERTIFICATE OF SERVICE ................................................................................ 24 

Page 2 of24 
INDEX OF AUTHORITIES 

Federal Cases 

Jackson v. Virginia, 443 U.S. 308 (1979) ............................................................. 17 

Texas Cases 

Appleman v. State, 531 S.W.2d 806,810 (Tex. Crim. App. 1975) ....................... 18 

Broderickv. State, 35 S.W.3d 67, 75 (Tex. App.- Texarkana 2000) ................... 15 

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 201 0) ............................ 17 

Charlton v. State, 847 S.W.2d 443 (Tex. App.- Houston [1st Dist.] 1993) 16-17,19 

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) ........................... 18 

Fielding v. State, 719 S.W.2d 361, 364 (Tex. App.- Dallas, 1986 writ ref d) .... 18 

Fin & Feather Club v. Leander, 415 S.W.3d 548 (Tex. App.- Texarkana 2013) 16 

State v. Gallegos, 2015 WL 8332512 *3-4 (Tex. App.- El Paso) .................. 15,17 

Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991) ............................. 18 

Gonzales v. State, 855 S.W.2d 692, 695 (Tex. Crim. App. 1993) ........................ 25 

Johnson v. State, S.W.3d (Tex. App.- Texarkana, 2010) ..................................... 22 

State v. Provost, 205 S.W.3d 561, 566 (Tex. App.- Houston [14th Dist.] 2006, no 

pet.) ........................................................................................................................ 18 

Rhodes v. State, 427 S.W.2d 889, 892 (Tex. Crim. App. 1968) ........................... 17 

Rundles v. State, 486 S.W.3d 730 (Tex. App.- Texarkana 2016) ........................ 15 

Savage v. State, 933 S.W.2d 497, 499-500 (Tex. Crim. App. 1996) .................... 16 

Swearingen v. State, 101 S.W.3d 89,97 (Tex. Crim. App. 2003) ........................ 18 

Waldie v. State, 923 S.W.2d 152, 156 (Tex. App.- Beaumont 1996) .................. 18 

Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) ................................ 18 

Rules ofEvidence and Statutes 

TEX. PEN. CODE Sec. 30.02(a)(3) (Vernon 2015) ................................................. 19 

TEX. R. APP. PROC. Sec. 21.1 (Vernon 2015) ........................................................ 24 

TEX. R. APP. PROC. Sec. 21.3(h) (Vernon 2015) ................................................... 25 

TEX. R. APP. PROC. Sec. 21.4 (Vernon 2015) ........................................................ 24 

Dix and Dawson, TEXAS PRACTICE, Criminal Practice and Procedure, Sec. 

41.22 (1995) .......................................................................................................... 25 

Wigmore, Evidence Sec. 302, "Doctrine of Chances"( 1928) ................................ 23 

Page 3 of24 
IN THE COURT OF APPEALS FOR THE 

SIXTH DISTRICT OF TEXAS AT TEXARKANA 

STATE OF TEXAS 

APPELLANT 

v. 

JAMEL MCLELLAND FOWLER, 

APPELLEE 

§ 

§ 

§ 

§ No. 06-16-00032-CR 

§ 

§ 

§ 

STATE'S BRIEF 

TO THE HONORABLE COURT OF APPEALS: 

NOW COMES the State of Texas, Appellant, in this appeal from Cause No. 

30,511 in the 196th District Court in and for Hunt County, Texas, Honorable 

Andrew Bench, Presiding, now before the Sixth District Court of Appeals, and 

respectfully submits this its brief to the Sixth District Court of Appeals. 

Page 4 of24 
STATEMENT OF CASE 

On June 26, 2015, Appellee was indicted for two offenses- in Cause No. 

30,511 for Burglary of a Building, alleged to have been committed on or about 

December 12, 2014, and in Cause No. 30,528 for Burglary of a Building, alleged to 

have been committed on or about February 3, 2015. CR Vol.l.p.8. On May 29, 

2015, Appellant was indicted for Theft ofProperty ofValue More Than $1,500 but 

Less Than $20,000 in Cause No. 29,456, alleged to have been committed on or 

about November 18, 2014. CR Vol.l.p.7. Appellee's three cases were consolidated 

and tried to a jury on February 12, 2016. CR Vol.l.pp.35-37. Appellee elected to 

have the jury assess his punishment. CR Vol.1.pp .46-4 7. During the trial, the State 

dismissed Cause No. 30,528 due to untimely discovery being turned over to the 

Appellee. RR Vol.1l.p.5. 

After a week-long trial, Appellee was found guilty in both remaining cases. 

CR Vol.1.p. 79. Prior to jury sentencing, Appellee asked the trial court to set aside 

the jury verdict in Cause No. 30,511. RR Vol.12.p.7. Although the trial court 

granted State's request to take Appellee's motion under advisement and allowed 

both parties to conduct more legal research into the issue, the jury only received a 

punishment charge in Cause No. 29,456. RR Vol.12.p.l3. The jury came back 

shortly with a maximum sentence for the Appellee. CR Vol.l.p.89. 

Page 5 of24 
At formal sentencing on February 16, 2016, after hearing legal arguments 

from both parties, the trial court gave Appellee the option of withdrawing his jury 

election for punishment (with the State's consent) and allowing the Court to impose 

punishment so that Appellee's Motion for New Trial could be considered, or do 

nothing and let the parties sort it out on appeal. RR Vol.13 .pp. 7-9. Appellee chose 

to withdraw his jury election, and the trial court imposed a six-month State Jail 

sentence. CR Vol.l.pp.85-89. Trial court then heard legal arguments on Appellee's 

oral Motion for New Trial, and granted it based upon legally insufficient evidence. 

CR Vol.l.p.90. On February 19, 2016, the trial court entered an Order of Acquittal, 

for which this appeal is taken. CR Vol.1.p.90; RR Vol.12.p.69. 

The State filed its written Notice of Appeal on March 9, 2016. CR 

Vol.l.p.99. Appellee filed a written Notice of Appeal and Motion for New Trial in 

Cause No. 29,456 on February 26,2016. CR Vol.l.p.99. 

Page 6 of24 
ISSUES PRESENTED 

Issue 1. Did the trial court apply the proper legal standard when it granted 

Appellee's Motion for New Trial? 

Issue 2. Was the evidence legally sufficient to prove Appellee committed the 

Burglary of Mr. Martin's building on or before December 12, 2014? 

SUMMARY OF THE ARGUMENT 

1. Since the standard of review on a Motion for Directed Verdict and a Motion for 

New Trial based upon insufficient evidence is the same, the Trial Comi abused 

its discretion when it set aside the jury's guilty verdict in Cause No. 30,511 and 

substituted its view of the evidence for the factfinder. A review of all the 

circumstantial evidence against the Appellee in Cause No. 30,511 was legally 

sufficient to prove a rational juror could have found the elements of Burglary of 

a Building proven beyond a reasonable doubt. 

STATEMENT OF FACTS 

Since Cause No. 29,456 and Cause No. 30,511 were tried together, the State 

has separated the facts based upon their connection to each case. The criminal 

activity that occurred out at Lattimore Materials, Royse City, Collin County, Texas, 

Page 7 of24 
was used for extraneous purposes in both cases. 

CAUSE NO. 29,456 

Around 1:45 a.m. on November 3, 2014, Royse City Police Sgt. Ryan Curtis 

responded to a report about a suspicious blue Nissan X-Terra parked behind an unlit 

local tractor supply business, Four Brothers. RR Vol.8.pp.169, 171, 177-79; See 

State Exhibit Nos. 5 & SA. Upon initial contact, Sgt. Curtis found Virginia Cox 

inside the vehicle along with several bolt-cutters. RR Vol.8.pp.171-72. Ms. Cox 

initially told Sgt. Curtis that her boyfriend had left to find some gasoline because 

they had run out of gas. RR Vol.8.p.17 4. Sergeant Curtis' suspicions deepened 

when Ms. Cox, after being instructed by law enforcement to start the vehicle, turned 

the ignition and it started. RR Vol. 8 .p .1 7 6. After searching the unlit area for 

approximately 30 minutes, Ms. Cox's boyfriend was never found. RR Vol.8.p.177. 

Sometime after 6:00a.m. that same morning, Royse City Police Sgt. Tim 

West and Officer William Potter encountered the same blue Nissan X-Terra SUV 

on the side of CR1777 and a few miles away from Four Brothers, occupied by 

Virginia Cox. RR Vol.9.pp.43-4, 107-08; See State Exhibit Nos. 5 & SA. Although 

the SUV had moved locations, Ms. Cox explained to the officers "they had run out 

of gas." RR Vol.9.p.110. Sergeant West and Officer Potter had prior knowledge 

that made Ms. Cox's explanation suspicious. RR Vol.9.pp.51-2, 111. After 

Page 8 of24 
spending fifteen minutes at the roadside with Ms. Cox, the police officers left to 

investigate a report of missing gasoline from Four Brothers. RR Vol.9.pp.125-26. 

Around 7:00a.m. that morning, Sgt. West and Officer Potter returned to the 

blue Nissan X-Terra still parked in the same location. RR Vol.9.pp.19, 45, 128. 

Upon closer inspection, Sgt. West and Officer Potter identified the vehicle now had 

two occupants: Appellee in the driver seat and Virginia Cox still in the front 

passenger seat. RR Vol.9.pp.20, 46, 118, 140. Appellee claimed that his vehicle 

had broken down, ran out of gas. RR Vol.9.p.48. During a roadside consensual 

search of the Appellee's vehicle, Officer Potter discovered large bolt-cutters, wirecutters, and binoculars in the back of the SUV. See State Exhibit No. 20; RR 

Vol.9 .p.5 3. Appellee told the officers the tools were for his job as an electrician. 

RR Vol.9.p.53. Appellee also told the officers he was from nearby Nevada, Texas. 

RR Vol.9.p.56. 

Lattimore Materials, an abandoned concrete plant on 20-3 0 acres in Royse 

City, Collin County, Texas, had several of its buildings burglarized beginning in 

November 2014. RR Vo1.9.pp.ll3-14, Vol.10.pp.43, 95; See State Exhibit No. 

130. The abandoned plant was secured by a locked gate, automatic-timed lighting 

around the buildings, and surveillance cameras. RR Vol.10.pp.103-4, 121. On 

November 5, 2014, Royse City PD was called out by Lattimore Area Manager 

Page 9 of24 
Duane Wetteland to investigate cut wiring. RR Vol.10.pp.97-8, 105. Mr. 

Wetteland's job required him to periodically inspect the Royse City facility. RR 

Vol.10.pp.96-7. Officer Jaime Torrez seized three large bolt-cutters found at the 

scene as possible criminal instruments used in the burglary. RR Vol.10.p.23; State 

Exhibit Nos. 116-18. 

On November 10, 2014, Royse City PD was called out for assistance at 

Lattimore Materials to investigate another report of damaged property and stolen 

property, including the cut wiring that was previously there on November 5. RR 

Vol.10.p.108. Upon further investigation by Mr. Wetteland, the building padlocks 

had been cut. RR Vol.1 O.p.111. That same day, Appellee was stopped by Sgt. West 

in the same blue Nissan X-Terra SUV, near the Lattimore property, and taken to the 

station for an interview based upon a traffic warrant. RR Vol.9.pp.44, 46; See State 

Exhibit Nos. 5 & 132. 

On December 1, 2014, Mr. Wetteland called the Royse City PD for 

assistance to investigate more wiring that was missing. RR Vol.1 0 .pp.11 0, 113. On 

December 5, 2014, Mr. Wetteland called the Royse City PD to investigate further 

property damage to a building that had its padlock cut, as well as a missing ice 

machine and cutting torch kit that was stored inside the building. RR 

Vol.lO.pp.113-14. All-terrain vehicle tracks were discovered behind one ofthe 

Page 10 of24 
burglarized buildings. RR Vol.1 0 .p.l15. This building was easily accessible and 

located next to the railroad tracks that ran through the Lattimore property. RR 

Vol.10.p.45. Mr. Wetteland and Officer Torrez followed the ATV tracks, which 

ran alongside the railroad track and ended near the woods located at the rear of the 

property. RR Vo1.10.pp.115-17. A green Kawasaki Mule ATV was discovered 

hidden in this wooded location. RR Vol.10.pp.43, 117; See State Exhibit Nos. 11-

12. 

The recovered ATV was found within 200 yards of the Lattimore building 

that had been burglarized earlier that day. RR Vol.10.p.46. Found three feet from 

the ATV was a receipt from the local Family Dollar store, and it was seized as 

potential evidence. RR Vol.10.pp.36-8, 42, 67; State Exhibit No. 119. Packaging 

for a pair of box cutters as well as some of the other merchandise listed on the 

seized store receipt was also found in the same area as the ATV. RR Vol.10.pp.42, 

67. Officer Torrez went to the local Family Dollar store to inquire about retrieving 

store surveillance video for the date and time of the transaction depicted on the 

seized receipt. RR Vol.10.pp.48-9, 82. Unable to record the requested Family 

Dollar surveillance video, Officer Torrez used his police-issued camera to 

successfully record the footage and download it onto a hard drive. RR 

Vol.10.pp.49, 61; State Exhibit No. 120. Upon reviewing the downloaded store 

Page 11 of24 
surveillance recording for the time and date of the transaction depicted in the seized 

store receipt, Officer Torrez believed the Lattimore Materials suspect was a white 

male. RR Vol.10.pp.63-5, 78. The jury was allowed to decide if the white male on 

the recording was in fact Appellee. 

The Kawasaki Mule's VIN was run through the Texas DMV- OMNX 

database and came back reported stolen out of Hunt County, Texas. RR 

Vol.8.pp.147, 211, 237, 253, Vol.10.p.46; State Exhibit No. 111. Hunt County 

Sheriffs Office ("HCSO") Deputy Amy Richardson had taken a stolen property 

report from Paul Blassingame on November 19, 2014. RR Vol.8.p.225. Mr. 

Blassingame had the ATV stolen from an unsecured building on his 14-acre 

property at 3523 CR 1114 in Hunt County. RR Vol.8.pp.130, 137, 141; See Exhibit 

No.5. Mr. Blassingame paid $2,550 for the ATV, and kept it stored on the 

property that he routinely visited. RR Vol.8.pp.139-41, 144. Deputy Richardson 

observed the fence gate on Mr. Blassingame's property had been removed, as well 

as cut fencing. RR Vol.8.pp.206, 208; See State Exhibit Nos. 7 &16. Deputy 

Richardson also followed apparent ATV tracks leading from the building, directly 

through the cut fence area, towards CR 1114 and off Mr. Blassingame's property. 

RR Vol.8.pp.217-18. 

Although the Lattimore location was miles from Mr. Blassingame's property, 

Page 12 of24 
the recovery location of the stolen A TV was within walking distance from the 

Lattimore burglarized buildings. RR Vol.10.pp.42, 119; See State Exhibit No.5. 

Coincidentally, Andreas Reyes reported sometime in November 2014 to Royse City 

Police a suspicious trailer found behind his place of work, located in an industrial 

complex in Royse City. RR Vol.8.p.196; See State Exhibit No.5 & 5A. 

Due to jurisdictional limitations, none of the aforementioned alleged criminal 

offenses that occurred at Lattimore Materials during this time period resulted in 

Hunt County charges. 

CAUSE NO. 30,511 

On December 11, 2014, HCSO Deputy Josh Robinson was sent to 

complainant William Martin's vacant property at 3554 FM1569 around 11:00 a.m. 

to investigate a possible burglary. RR Vo1.8.pp.267, 281, Vol.9.p.172; See State 

Exhibit No.5. Mr. Martin's property was secured by barb wire fencing around the 

perimeter and a padlocked gate. RR Vol.8.p.269. Mr. Martin had not been out to 

his property for about a week, and on December 11 t\ according to Dep. Robinson 

he reported lots of property stolen from his airport hangar building. RR 

Vo1.8.p.268, Vo1.9.p.176. Mr. Martin ultimately detennined that only two game 

cameras were stolen from inside the building on this occasion. RR Vol.8.p.287. 

Mr. Martin discovered that a 6' section of his fencing had been cut since his 

Page 13 of24 
last visit to the property about a week earlier, about 3-4' away from CR1075 and 

near the intersection ofFM1565 and CR1075. RR Vol.8.pp.271-72, 288, 290. Mr. 

Martin also found ATV tracks near the cut fencing, and he did not own an ATV. 

RR Vol.8.pp.289, 299. It was 3' from this cut fencing that Mr. Martin recovered an 

Alcatel cell phone that he took up to the HCSO and gave it to an "inspector" 

(hereinafter "Inv. Kelly Phillips"). RR Vol.8.pp.273, 276. HCSO Inv. Kelly 

Phillips turned the Alcatel cell phone on to make sure it worked, then sometime in 

December 2014, HCSO Lt. Nathan Earhart, at the direction oflnv. Phillips, used a 

software program to determine that the phone number given by Inv. Phillips 

belonged to a Mr. Fowler. RR Vol.8.p.277, Vol.9.pp.203, 209. Mr. Martin was 

present for this exchange between Lt. Earhart and Inv. Phillips. RR Vo1.8.p.287. 

ARGUMENT 

1. Review of Directed Verdict Motion Same as Challenge to Insufficient 

Evidence 

a. Standard of Review 

In Broderick v. State, this Court held that a failure to grant a motion for a 

directed verdict is a challenge to the legal sufficiency of the evidence. Broderick v. 

State, 35 S.W.3d 67,75 (Tex. App.- Texarkana, 2000); State v. Gallegos, 2015 

Page 14 of24 
WL 8332512*4 (Tex. App.- El Paso). As such, the standard of review requires 

examining the evidence in a light most favorable to the verdict and determining 

whether any rational trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt. I d. 

b. Trial Court Abused Its Discretion by Granting Motion for New Trial 

After hearing legal arguments from both parties, the trial court correctly 

denied Appellee's Directed Verdict Motion in Cause No. 30,511. RR Vo1.11.p.69. 

The trial court felt uncomfortable substituting its view of the evidence for the jury-

"I can't substitute my own judgment for that of the jury." RR Vol.11.p.68. In its 

ruling, the trial court believed the legal standard was only a scintilla of evidence. 

RR Vol.11.p.69. See generally Rundles v. State, 486 S.W.3d 370 (Tex. App.-

Texarkana 2016); Fin & Feather Club v. Leander, 415 S.W.3d 548 (Tex. App.-

Texarkana 2013) (discussing how scintilla of evidence is a term used in civil 

proceedings). 

Yet a few hours later after the jury had deliberated and reached a guilty 

verdict in both cases, the trial court changed its mind in Cause No. 30,511. RR 

Vol.11.p.138. The trial court granted Appellee's oral Motion to Set Aside the Jury 

Verdict, akin to making a JNOV ruling, and did not allow the jury to assess 

punishment in Cause No. 30,511. RR Vol.12.pp.7-12; State vs. Savage, 933 S.W.2d 

Page 15 of24 
497, 498 (Tex. Crim. App. 1996). The trial court instructed the jury that he granted 

Appellee's Motion to Set Aside their verdict, and for the jury not to consider Cause 

No. 30,511 in the punishment proceeding. RR Vol.12.p.20. The trial court's action 

was not authorized by law, as outlined by the Texas Court of Criminal Appeals 

twenty years ago. Savage, 933. S.W.2d at 498. "Once the jury has returned a guilty 

verdict and that verdict is read aloud in open court, the trial court is not authorized 

to then grant a motion for directed verdict and enter a judgment of acquittal." 

Savage, 933 S.W.2d at 499. 

In Charlton v. State, the trial court abused its discretion when it set aside the 

jury's guilty verdict in a DWI trial and ordered a new trial. Charlton v. State, 847 

S.W.2d 443 (Tex. App.- Houston [1st Dist.] 1993). At the hearing, no additional 

evidence was presented and instead the trial court took judicial notice of all the 

previous proceedings. !d. at 443. The appellate court vacated the trial court's 

Order for New Trial because the trial court weighed the evidence and judged the 

credibility of the witnesses, in effect substituting its judgment for that of the fact 

finder. !d. at 446; See generally Rhodes v. State, 427 S.W.2d 889, 892 (Tex. Crim. 

App. 1968). In State v. Gallegos, the trial court abused its discretion when it 

granted Defendant's Directed Verdict Motion, after it had received a guilty verdict 

Page 16 of24 
from the jury of a lesser included offense of Class A misdemeanor criminal 

mischief. State v. Gallegos, 2015 WL 8332512*3 (Tex. App.- El Paso). 

Unfortunately, the Trial Court did exactly what it said it wouldn't do- "it 

substituted its own judgment for that of the factfinder." 

2. Trial Court Erred in Granting a New Trial Because Evidence Was Legally 

Sufficient 

a. Standard of Review 

When reviewing legal sufficiency of the evidence, the Courts review all the 

evidence in a light most favorable to the jury's verdict to determine whether any 

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

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

Jackson v. Virginia, 443 U.S. 307, 319 (1987). The standard of review is the same 

for both direct evidence and circumstantial evidence cases. Geesa v. State, 820 

S.W.2d 154, 158 (Tex. Crim. App. 1991). "While each piece of evidence lacked 

strength in isolation, the consistency of the evidence and the reasonable inferences 

drawn therefrom, provide the girders to strengthen the evidence and support a 

rational jury's finding the elements beyond a reasonable doubt." Swearingen v. 

State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). "All evidence submitted at trial, 

Page 17 of24 
- including improperly admitted evidence - is considered in a legal sufficiency 

review." Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) citing 

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). 

The granting of a motion for new trial rest within the discretion of the trial 

court, and appellate courts ordinarily will not reverse that decision absence an abuse 

of discretion. Appleman v. State, 531 S.W.2d 806, 810 (Tex. Crim. App. 1975); 

Fielding v. State, 719 S.W.2d 361, 364 (Tex. App.- Dallas, 1986 writ ref d). 

However, when ordering a new trial based upon insufficient evidence, the 

appropriate standard of review is if the trial court abused its discretion in 

conducting a legal sufficiency review of the evidence. See State v. Provost, 205 

S.W.3d 561, 566 (Tex. App.- Houston [14th Dist.] 2006, no pet.); Waldie v. State, 

923 S.W.2d 152, 156 (Tex. App. -Beaumont, 1996) ("an exception to the abuse of 

discretion standard occurs when a new trial is sought on the grounds of insufficient 

evidence .... evidence is viewed in light most favorable to the verdict to determine 

whether any rational trier of fact could have found essential elements of offense 

beyond a reasonable doubt"). 

b. Circumstantial Evidence Used to Link Appellee to Mr. Martin's 

Burglary in Cause No. 30,511 

Page 18 of24 
"A person commits burglary of a building if the person enters a building 

without the effect consent of the owner, and commits or attempts to commit a 

theft." TEXAS PENAL CODE SEC. 30.02(a)(3) (Vernon 2015). The evidence was 

uncontroverted as to whether Mr. Martin's Hunt County property was burglarized 

on or before December 12, 2014. The only contested elements at trial were when. 

exactly the building had been burglarized, and whether the State proved beyond a 

reasonable doubt that the Appellee committed that crime. 

1. Appellee's Technological Footprint Left at Crime Scene 

Just a defendant's fingerprint left inside a building of a victim who does not 

know the defendant has long been recognized as legally sufficient evidence to 

identify him with the crime. See Johnson v. State, S.W.3d (Tex. App.- Texarkana, 

2010). Here, an Alcatel cell phone was found by burglary victim Mr. Martin only 

3' from the fence that had been cut in the last week on his property. Mr. Martin did 

not lmow Appellee. This cell phone was run through a law enforcement computer 

program designed to list the registered account owner of the phone. More 

importantly, the investigator was still able to power on the cell phone when it was 

turned in by Mr. Martin, meaning the cell phone had been left recently at the 

property. When Lt. Earhart ran it through the database in Mr. Martin's presence, it 

came back to a "Mr. Fowler." Considering the totality of the evidence presented 

Page 19 of24 
against the Appellee during this time frame, it was a logical inference for the 12 

jurors to believe that the Alcatel cell phone belonged to the Appellee since his last 

name is Fowler and he stole Mr. Blassingame's ATV a few weeks earlier. 

c. Same Circumstantial Evidence linked Appellee to the Burglary of 

Mr. Martin's Building on or Before December 12, 2014 

1. Evidence Used to Support Appellee's Conviction in Cause No. 

29,456 Linked Appellee to Cause No. 30,511 

Based upon the jury's guilty verdict in Cause No. 29,456, the circumstantial 

evidence in that case proved several things that connected Appellee to Cause No. 

30,511: 

1. Appellee stole that ATV from Mr. Blassingame's property at 3523 CR 

1114 on or before November 18, 2014. Appellee, who told police officers he 

was from Nevada, Texas, was a long way from home when he committed 

that theft, and Appellee was very close to Mr. Martin's 3554 FM 1569 

property. See State Exhibit No. 5. 

2. Appellee scouted that area of Hunt County for vacant properties with 

buildings that contained burglar tools (game cameras, A TV s). Neither Mr. 

Martin nor Mr. Blassingame lived on their properties, but both had buildings. 

Page 20 of24 
3. Mr. Martin did not own an ATV, yet he found ATV tracks on his 

property on December 12, 2014. Those ATV tracks were left by Appellee, 

who had a habit of using ATVs to commit his crimes. 

4. The motive behind the theft of Mr. Blassingame's ATV and Mr. 

Martin's burglary was the same- an ATV was necessary on December 1st 

and 5th for transporting the Lattimore Materials stolen propetiy (electrical 

wiring, ice cooler, and other heavy items) back to the concealed wooded area 

in the rear of the property. 

5. Both Mr. Martin and Mr. Blassingame's fences had been cut by one of 

the unseized bolt-cutters seen by Royse City police in the back of Appellee's 

SUV on November 3, 2014. The size of the cut fencing on both properties 

allowed the stolen ATV to exit Mr. Blassingame's property and allowed an 

ATV to enter Mr. Martin's property. 

6. Timeline of the aforementioned events, as recorded by the victims and 

law enforcement, made it very likely that Appellee did all of this. 

2. Totality of the Circumstantial Evidence 

The Alcatel cell phone, State's Exhibit No.5, and all of the aforementioned 

circumstantial evidence that connected Appellee to the theft of Mr. Blassingame's 

Page 21 of24 
ATV would lead a rational juror to believe he also committed the burglary of Mr. 

Martin's building on or before December 12, 2014. 

Mr. Martin's discovery of an Alcatel cell phone on his property is significant 

for several reasons. Lt. Earhart testified that he's used the law enforcement 

computer program OMNX many times to identify the registered owner and it had 

never failed him before. This cell phone was registered to a Mr. Fowler, meaning 

the phone was valuable enough to Mr. Fowler to have registered it in his name. 

The cell phone was found 3' from newly cut fence on Mr. Martin's property, right 

where ATV tracks led. And the cell phone still had power when lnv. Phillips 

turned it on. 

State Exhibit No. 5 was used by all of the victims to show where their crimes 

had been committed. It was also used by law enforcement witnesses to show where 

all of their contacts with the Appellee had occurred in the same time :frame as the 

crimes. It cannot be overemphasized how an in-court visualization of a large map 

of Hunt County dramatically got narrowed in size when Mr. Martin and Mr. 

Blassingame used colored pin tacks to show the closeness in proximity of their two 

vacant properties. See State Exhibit No. 5. 

What are the chances that a Mr. Fowler's name attached to that phone is not 

the same Mr. Fowler who committed the theft at Mr. Blassingame's property down 

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the road a few weeks earlier? What are the chances that Mr. Fowler's cell phone 

was not used by the person that committed Mr. Martin's burglary? It cannot be 

pure coincidence that the Appellee is right in the middle of this criminal activity at 

the same time. See Wigmore Evidence Sec. 302, "Doctrine of Chances." Based 

upon all the circumstantial evidence, it was very rational for the 12 jurors to believe 

Mr. Fowler was Appellee. Viewing all the evidence in a light most favorable to the 

state, the jury got it right when they found Appellee guilty of burglary in Cause No. 

30,511. 

PRAYER 

State prays that the Trial Court's Order of Acquittal be set aside and the 

jury's guilty verdict in Cause No. 30,511 be reinstated and remanded for a 

punishment hearing. 

Respectfully submitted, 

NOBLE DAN WALKER, JR. 

District Attorney 

Hunt County, Texas 

Is/George Calvin Grogan 

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G CALVIN GROGAN V 

Assistant District Attorney 

P. 0. Box441 

4th Floor, Hunt County Courthouse 

Greenville, TX 75403 

State bar No. 24050695 

(903) 408-4180 

FAX (903) 408-4296 

cgrogan@huntcounty .net 

CERTIFICATE OF COMPLIANCE WITH T.R.A.P. 9.4(i)(3) 

Relying on Microsoft Word's word count feature used to create the State's 

Reply Brief, I certify that the number ofwords contained in this brief is 4,734 and 

the typeface used is 14Font. 

Is/George Calvin Grogan 

G CALVIN GROGAN V 

Assistant District Attorney 

CERTIFICATE OF SERVICE 

A true copy of the State's brief has been mailed via first-class mail to Jessica 

Edwards, Appellee's attorney of record, today, August 12, 2016, pursuant to Texas 

Rules of Appellate Procedure. 

Is/George Calvin Grogan 

G CALVIN GROGAN V 

Assistant District Attorney 

Page 24 of24