Case Information

*0 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 12/4/2015 4:00:03 PM PAM ESTES Clerk *1 ACCEPTED 12-15-00017-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 12/4/2015 4:00:03 PM Pam Estes CLERK ORAL ARGUMENT NOT REQUESTED

CAUSE NO. NO. 12-15-00017-CR IN THE

COURT OF APPEALS TWELFTH DISTRICT OF TEXAS TYLER, TEXAS __________________________________________________________________

ARTHUR JAMES WILLIAMS, Appellant VS.

THE STATE OF TEXAS, Appellee __________________________________________________________________

Appeal in Cause No. 31592 On Appeal from the Third Judicial District Court of Anderson County, Texas __________________________________________________________________

BRIEF FOR STATE __________________________________________________________________

Eric S.A. Houghton Asst. Criminal District Attorney Anderson County, Texas Anderson County Courthouse Palestine, Texas 75801 Texas Bar No. #24012855 903/723-7400 i

IDENTITY OF PARTIES AND COUNSEL JUDGE PRESIDING:

THE HONORABLE PAMELA FOSTER FLETCHER DEFENDANT/APPELLANT:

ARTHUR JAMES WILLIAMS

FOR THE DEFENDANT:

APPELLATE ATTORNEY

COLIN MCFALL

513 N CHURCH ST

PALESTINE, TX 75801

TRIAL COUNSEL

COLIN MCFALL

513 N CHURCH ST

PALESTINE, TX 75801

FOR THE STATE:

TRIAL COUNSELS

STANLEY SOKOLOSKI

ON APPEAL

ERIC S.A. HOUGHTON

ASSISTANT CRIMINAL DISTRICT ATTORNEY ANDERSON COUNTY COURTHOUSE 500 N. CHURCH STREET, RM. 38

PALESTINE, TX 75801

(903) 723-7400

ii *3 TABLE OF CONTENTS PAGE Identity of Parties and Counsel . . . . . . . ii

Table of Contents . . . . . . . . . iii

Index of Authorities . . . . . . . . iv

Statement of the Case . . . . . . . . 1

Issues Presented . . . . . . . . . 1

Statement of Facts . . . . . . . . . 1

Summary of Argument . . . . . . . . 2

Argument . . . . . . . . . . 2-5

Prayer . . . . . . . . . . 6

Certificate of Service . . . . . . . . 7

Certificate of Word Count . . . . . . . 7

iii *4 INDEX OF AUTHORITIES Cases Page

Acosta v. State , 429 S.W.3d 621 (Tex.Crim.App.2014) . . . 2

Brown v. State , 270 S.W.3d 564 (Tex.Crim.App.2009) . . . 2

Chambers v. State , 805 S.W.2d 459 (Tex. Crim. App. 1991) . . 3

Clayton v. State , 235 S.W.3d 772 (Tex.Crim.App.2007) . . . 2,3

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

Hooper v. State , 214 S.W.3d 9 (Tex.Crim.App.2007) . . . 3

Jackson v. Virginia , 443 U.S. 307 (1979) . . . . . 2,3

Statutes

Tex. Code Crim. Proc. Ann . Art. 38.04 (Vernon Supp. 2009) . . 3

Tex. Penal Code Ann . § 30.02 (Vernon Supp. 2009) . . . 4

iv *5 STATEMENT OF THE CASE The Statement of the case is as stated in appellant’s brief page 7, with the correction that the defendant was found guilty of the offense of Burglary

of a Habitation (V3, P140-141), not Forgery as inadvertently stated in

Appellant’s statement of facts. The Reporter’s Record will be referred to as

“V1, V2, etc.” unless otherwise noted. The Clerk’s Record will be referred

to as “CR1” or “CR2.” Appellant’s Brief will be referred to as “AB” unless

otherwise noted. Appellee is referred to as “State”.

ISSUES PRESENTED Appellant contends the evidence is legally insufficient to support a conviction for burglary of a habitation.

STATEMENT OF FACTS Are as stated in Appellant’s brief.

SUMMARY OF ARGUMENT Appellant contends the evidence is legally insufficient to support conviction a conviction for burglary of a habitation.

ARGUMENT The evidence presented at trial is legally sufficient to support a conviction for burglary of a habitation.

In reviewing the sufficiency of the evidence to support a conviction, appellate courts view all of the evidence in the light most favorable to the

prosecution in order to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia , 443 U.S. 307, 319, (1979); Clayton v. State , 235 S.W.3d

772, 778 (Tex.Crim.App.2007); Acosta 429 S.W.3d at 624-5. This standard

gives full play to the responsibility of the trier of fact to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Jackson , 443 U.S. at 319; Clayton , 235

S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility

of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 2013);

Brown v. State , 270 S.W.3d 564, 568 (Tex.Crim.App.2008), cert. denied,

556 U.S. 1211 (2009), vacated on other grounds by Ex parte Brown , 2014

Tex. Crim. App. Unpub. LEXIS 984 (2014). Thus, reviewing courts may not

re-evaluate the weight and credibility of the evidence and substitute their

judgment for that of the fact finder. Dewberry v. State , 4 S.W.3d 735, 740

(Tex.Crim.App.1999), cert. denied, 529 U.S. 1131 (2000). Instead, appellate

courts “determine whether the necessary inferences are reasonable based

upon the combined and cumulative force of all the evidence when viewed in

the light most favorable to the verdict.” Hooper v. State , 214 S.W.3d 9, 16-

17 (Tex.Crim.App.2007). Reviewing courts must presume that the fact

finder resolved any conflicting inferences in favor of the prosecution and

defer to that resolution. Jackson , 443 U.S. at 326; Clayton , 235 S.W.3d at

778.

It is well established that the fact finder is entitled to judge the credibility of witnesses and can choose to believe all, some, or none of the

testimony presented by the parties. Chambers v. State , 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

Appellant raises on appeal that the evidence is insufficient to support his conviction for one count of burglary of a habitation.

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 commit theft. Tex. Penal Code Ann . § 30.02 (Vernon Supp.

2009)

Appellant argues “the only evidence presented at trial that arguably addressed Appellant’s intent to commit theft, as he entered the habitation of

Phillip Morris, on the 28 th night of June 2013, is conflicting testimony

regarding the scratches or ‘pry marks.’” (AB P15-16)

During trial, Detective Heavner testified that at 10 pm on the night of the offense he responded to an alarm at the complainant’s residence,

approached the garage door, and saw Appellant inside the garage with tools

in his hands. (V3, P41-43) Detective Heavner further testified that when he

pushed the garage door open, Appellant pushed back, at which time

Detective Heavner kicked the door causing the Appellant and tools to fall to

the ground. (V3, P41-43)

Furthermore, Ms. Morris, the homeowner, testified that the morning after the offense she and her husband found her garden cart had been moved

to the other side of their hedge, and the usual items she had left in the cart

“were piled out and …. there were tools in there that belonged to Phillip [her

husband].” She further testified that these tools were electrical and

woodworking tools that had been taken from of the garage and placed in the

cart. (V3, P24-25) Ms. Morris also stated their house and garage had an

alarm system which had been activated that evening, and the garage door

was locked. (V3, P26-27) Finally, Ms. Morris testified no one had

permission to enter her garage and take her husband’s tools. (V3 P32-33)

The jury, as finder of fact, could choose to believe her testimony in its entirety. Her testimony alone provides ample evidence to support a

conviction for burglary of a habitation. Furthermore, the Appellant was

discovered by Detective Heavner inside the complaint’s garage with the

complainant’s tools in his arms at ten o’clock at night. The complainant had

set the alarm system earlier that evening and locked the garage door.

Finally, additional tools were discovered by the complainant the next

morning which had been taken from the garage and placed in a garden cart

in order to assist the Appellant in the commission of the offense. The

Appellant’s actions go well beyond “mere preparation,” and as such, there is

legally sufficient evidence to support Appellant’s conviction for burglary of

a habitation and his appeal should be denied.

PRAYER WHEREFORE the Appellee prays that the Court upon consideration

hereof affirm the decision of the Trial Court.

Respectfully submitted by, ____________________ ERIC S.A. HOUGHTON Asst. Criminal District Attorney Anderson County, Texas Anderson County Courthouse 500 N. Church Street, RM 38 Palestine, Texas 75801 Texas Bar No. #24012855 (903)723-7400 *11 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Brief for the State has been delivered via email to: COLIN MCFALL on this the 4 th day of

December, 2015, in accordance with the provisions of the Texas Rules of

Criminal and Appellate Procedure. ___________________________________ ERIC S.A. HOUGHTON ASST. CRIMINAL DISTRICT ATTORNEY CERTIFICATE OF WORD COUNT I also certify that the entire word count of the State’s reply brief is 1,470

words.

___________________________________ ERIC S.A. HOUGHTON ASST. CRIMINAL DISTRICT ATTORNEY