Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/19/2015 4:28:41 PM JEFFREY D. KYLE Clerk THIRD COURT OF APPEALS 11/19/2015 4:28:41 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00239-CR *1 ACCEPTED ^[7913693] CLERK

COURT OF APPEALS NUMBER 03-15-00239-CR (District Court Number 71,325) **********

IN THE COURT OF APPEALS FOR THE STATE OF TEXAS (Third Supreme Judicial District) **********

TRACY LARANCE GORDON Appellant vs.

THE STATE OF TEXAS **********

Appealed from the 264th Judicial District Court of Bell County, Texas **********

APPELLANT'S BRIEF **********

Respectfully Submitted, TROY C. HURLEY Attorney for Appellant P.O. Box 767 312 East Central Avenue Belton, Texas 76513 Telephone :(254) 939-9341 FAX: (254) 939-2870 SBA No. 10312000 *2 LIST OF PARTIES TRACY LARANCE GORDON

TDCJ No. O1990081 Polunsky Unit

3872 FM 350 South Livingston, Texas 77351

MICHAEL F. WHITE, Attorney at Trial 100 Kasberg Drive, Suite A

Temple, Texas 76502

Troy C. Hurley, Attorney on Appeals

P.O. Box 767

Belton, Texas 76513

Bob D. Odom, Attorney for State

P.O. Box 540

Belton, Texas 76513

i *3 TABLE OF CONTENTS ITEMS PAGES

LIST OF PARTIES................................... i

INDEX OF AUTHORITIES ............................. ii

STATEMENT OF THE CASE............................. 1

APPELLANT'S ISSUE PRESENTED ...................... 3

FIRST ISSUE PRESENTED (Restated).................. 3

SUMMARY OF THE ARGUMENT........................... 6

ARGUMENT AND AUTHORITIES ......................... 7

CONCLUSION AND PRAYER ............................ 9

CERTIFICATE OF SERVICE UPON STATE ................. 10

CERTIFICATE OF SERVICE UPON APPELLANT ............. 12

LETTER OF TRANSMITTAL TO APPELLANT ..............13-14

CERTIFICATE OF COMPLIANCE...........................15

ii *4 INDEX OF AUTHORITIES CASES PAGES

Blankenship v. State, 780 S.W.2d 198

(Tx.Cr.App. 1989)........... 9

Chandler v. State; 790 S.W.2d 635

(Tx.Cr.App. 1990)............ 9 Jones v. State, 532 S.W.2d 596

(Tex.Cr.App. 1976)............ 9

overruled on other grounds.

Moss v. State, 574 S.W.2d 542

(Tx.Cr.App. 1978)............. 9 overruled on other grounds.

OTHERS

Texas Penal Code

Article 32.01 . . . . . . . . . . . . . . . . . .7 Article 32.02 . . . . . . . . . . . . . . . . . .7 iii

No. 03-15-00239-CR (District Court Number 64,040) TRACY LARANCE GORDON Appellant ) IN THE 264th JUDICIAL

)

)

VS. ) DISTRICT COURT OF

)

THE STATE OF TEXAS ) BELL COUNTY, TEXAS

APPELLANT'S BRIEF TO THE HONORABLE JUDGES OF THE TEXAS COURT OF APPEALS:

STATEMENT OF THE CASE Appellant was charged with the felony offense of Burglary of a Habitation. The indictment alleges that on

or about March 12, 2013, the Appellant did then and there

intentionally or knowingly enter a habitation, without

the effective consent of Norma and Jerrick Bourgeois, the

owner thereof, and attempted to commit and committed

theft of property, to-wit; a refrigerator.

The indictment further alleges that the Appellant, before the commission of this alleged offense, on the 11 th

day of September, 2003, in the 264 th District Court of

Bell County, Texas in Cause Number 53,893, was convicted

of the felony offense of Possession of a Controlled

Substance (Repeat Offender).

The indictment was returned by the Grand Jury for the 426th Judicial District Court of Bell County,

Texas, on May 22, 2013. (CR-I-4).

Michael F. White, of Temple, Texas, represented the Appellant at trial (CR-I-11; RR-V-2). A trial before

the Court was held before the Honorable Martha J. White,

Judge for the 264 th Judicial District Court of Bell

County, Texas, on January 12 th , February 3, and March 19,

of 2015. Appellant was found guilty by the Court on

February 3, 2015 (CR-I-50 through 52; RR-VI-71). The

Appellant had elected to have punishment set by the

Court by virtue of is waiver of a jury trial (CR-I-35

and 36).

On March 19, 2015, the punishment phase of the trial was held (CR-I-50 through 52; RR-VII-4 through 43). The

court assessed punishment at Life in the Texas Department

of Criminal Justice, Institutional Division (CR-I-50

through 52; RR-VII-41).

Appellant gave written Notice of Appeal on March 24, 2015, (CR-I-43; RR-VII-42 and 43). Counsel was

appointed to represent Appellant on appeal on March 31,

2015.

References to the record in the brief are based on the following chart:

Clerk's Record--CR-I

Reporter's Record

RR-I--Master Index

RR-II—-Writ of Habeas Corpus Hearing held May 3, 2013

RR-III—-Pre-trial Hearing held January 8, 2015 RR-IV--Pre-trial Hearing held January 12, 2015 RR-V—Non-jury Trial held January 12, 2015 RR-VI--Sentencing Hearing held on February 3, 2015

RR-VII--Sentencing Hearing held on March 19, 2015

RR-VIII—-Exhibit Volume

ISSUE PRESENTED The State of Texas’ evidence does not support the Trial Court’s finding of Guilty of the offense of

Burglary of a Habitation.

STATEMENT OF FACTS FOR ISSUE PRESENTED On March 12, 2013, officers of the Killeen, Texas, Police Department were sent to a location in the city

limits of Killeen. That location was 3306 Thunder

Creek Road, Killeen, Texas. (RR-VI-8)

The officers who responded were Officers James Plank and Christopher Williams. (RR-VI-8 and 9) Upon

arrival, the officers made contact with Appellant,

Tracy Larance Gordon, (RR-VI-9) and another person by

the name of Keith Simms. (RR-VI-10) They were walking

out of the garage of a vacant house at that address.

When Officer Plank asked Appellant what they were doing there, he reported that his wife had purchased

the vacant house and they were there to clean the house

up (RR-VI-11). Plank indicated that this was plausible

because there was a “For Sale” sign in the front yard.

In order to check their story, Plank made contact with the person who had called the police and lived

across the street from 3306 Thunder Creek Road. (RR-VI-

12) He then returned to the vacant house to speak

further with the Appellant. He noticed that there was

a garden hose connected to the water heater. Appellant

explained that the water and other utilities were not

turned on, so they were going to use the water in the

water heater to clean the house. (RR-VI-13).

Plank stated that he saw refrigerator doors and shelves inside the garage on the floor (RR-VI-13). When

he entered the house, he noticed that there were pieces

of a refrigerator there also and that the back door to

the house had been kicked in. (RR-VI-16 and 17).

They returned to the garage, a car pulled up, man got out and approached them. This man told them that

he was the realtor who had the contract to sell the

house and his name was Franklin Adams. Plank told

Adams what the Appellant had told him about buying the

house and Adams said this was not true and he believed

Appellant and Simms were probably there to steal

household appliances ((RR-VI-18). The Appellant was

placed under arrest at this time.

When questioned by Appellant’s counsel, Plank made the statement that the only things in the house were appliances; no other types of furniture were present in

the house (RR-VI-19). There were no furnishings in the

living room or the bedrooms. He said that when he was

dispatched to the address, he was told that the house

was supposed to be vacant and had been for quite some

time (RR-VI-20).

Franklin Adams testified on examination by the State that the electricity and water service to the

house had been totally disconnected and it would

require work by the utility companies to re-establish

service (RR-VI-29).

On cross-examination, Mr. Adams restated that on the day of Appellant’s arrest, there was no electricity

in the house that he was arrested in. (RR-VI-36) He

also testified that there was no running water

available in the house on that date. He agreed with

the Appellant’s counsel that the house had been vacant

for seven (7) or more months and there had been no

furnishings or utilities there during that time (RR-VI-

37).

SUMMARY OF THE ARGUMENT Article 32.02, Texas Penal Code, states that a person commits an offense if, without the effective

consent of the owner, they enter a habitation or

building, not open to the public, with the intent to

commit or commits a felony, theft, or an assault. The

statute further states the offense is a state jail

felony if the building is not a habitation; a felony of

the second degree if the building is a habitation; and

the crime intended was a theft.

Article 32.01, Texas Penal Code, entitled “Definitions” states that a habitation means a

structure adapted for overnight accommodation of

persons.

The structure involved in the case before the Court does not meet the qualifications required by law to be

considered to be a “habitation”.

By wrongfully classifying the structure involved in the offense a habitation, the Trial Court subjected

Appellant to maximum sentence of twenty (20) years the

the prison. If the structure had been correctly

classified as a building, the maximum sentence

Appellant faced would have been two (2) years in a

State Jail.

Further, because the Trial Court made a finding that Appellant had been previously found guilty of a

prior felony conviction, Appellant was subjected to and

received a Life Sentence in prison.

ARGUMENT AND AUTHORITIES Texas law has long held that for a building to qualify for the designation “habitation” it must be

adapted for the overnight accommodation of persons.

That includes having working utilities, such as,

electricity, water, and natural gas that are connected

to the house and actually functional.

It also contemplates there be furnishings in the house that make it livable. This would contemplate

things such as bedroom furniture, living room chairs

and/or couches. It would also include working kitchen

appliances and bathroom accommodations. These items

would meet the requirement only if they were capable of

carrying out their designed use.

A house built and designed to be a place for *13 persons to reside would not qualify as “habitation” if

it did not meet this criteria. If the structure has

been abandoned or vacant for a long period of time,

this would add to the argument that it did not qualify

as a “habitation”. Jones v. State, 532 S.W.2d 596

(Tex.Cr.App. 1976) overruled on other grounds; Moss v.

State, 574 S.W.2d 542 (Tx.Cr.App. 1978) overruled on

other grounds; Blankenship v. State, 780 S.W.2d 198

(Tx.Cr.App. 1989); and Chandler v. State; 790 S.W.2d

635 (Tx.Cr.App. 1990).

By finding Appellant guilty of a Burglary of a Habitation, as opposed to Burglary of a Building,

Appellant was found guilty of a Second Degree Felony

with a maximum possible punishment of twenty (20)

years. If he had been found guilty of the proper

charge, the maximum punishment would have been two (2)

years for a State Jail Felony. Since the Trial Court

also made a finding that Appellant had a prior felony

conviction, he was sentenced to Life in prison. This

shows an unconscionable disparity of the punishment

received by Appellant. Because of this error, the

conviction should be reversed.

CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, the Appellant requests the Court to reverse the conviction of the

Appellant on the basis of the errors stated and remand

the case for a new trial.

Respectfully Submitted, /s/ Troy C. Hurley TROY C. HURLEY Attorney for Appellant P.O. Box 767 312 East Central Avenue Belton, Texas 76513 (254) 939-9341 FAX (254) 939-2870 SBA No. 10312000 *15 CERTIFICATE OF SERVICE UPON STATE This is to certify that a true and correct copy hereof was served upon Bob D. Odom, counsel for the

State of Texas, at the Bell County District Attorney's

Office in Belton, Texas, on this the 19 th day of

November, 2015.

/s/ Troy C. Hurley TROY C. HURLEY Attorney at Law *16 CERTIFICATE OF SERVICE UPON APPELLANT I, the undersigned court-appointed counsel for Appellant, hereby certify that a true and correct copy

hereof has been served upon the Appellant by depositing

same, properly addressed to him:

TRACY LARANCE GORDON Inmate No. 01990081 Polunsky Unit

1872 FM 350 South Livingston, Texas 77351 in the United States Mail. I further certify that a

letter to Appellant, which is attached hereto,

accompanied the copy of the brief and advised him of

his right to add to or delete from this brief.

Appellant was also advised of his right to a copy of

the record of the proceedings against him.

SIGNED this 19 th day of November, 2015.

/s/ Troy C. Hurley TROY C. HURLEY Attorney at Law *17 TROY C. HURLEY Attorney at Law

P.O. Box 767 312 East Central Avenue Belton, Texas 76513

(254) 939-9341 FAX (254) 939-2870 November 19, 2015 TRACY LARANCE GORDON Inmate No. 01990081

Polunsky Unit

1872 FM 350 South

Livingston, Texas 77351

Re: Tracy Larance Gordon v. State

Cause No. 03-15-00239-CR

(Dist. Ct. No. 71,325)

Dear Mr. Gordon:

Enclosed you will find a copy of the brief which we are filing in your behalf in the Texas Court of Appeals

in Austin, Texas. You are hereby advised that you have

a right to add to or delete from this brief should you

desire to do so. We would further advise you that, as

an indigent, you may request a record in your case by

contacting the District Clerk at the Bell County

Courthouse in Belton, Texas.

We will continue to keep you informed of the progress of your appeal.

Sincerely,

/s/ Troy C. Hurley

Troy C. Hurley

Attorney at Law

TCH/lt Enclosure

-14- *19 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the length limitations of Texas Rule of Appellate Procedure

9.4(i)(3) as this brief contains one thousand four

hundred seventy-seven (1,477) words, excluding the parts

of the brief exempted by Texas Rule of Appellate

Procedure 9.4(i)(1); a number which is less than the

15,000 words allowed under Rule 9.4(i)(2)(B).

I also certify that this brief complies with the typeface requirements of Texas Rule of Appellate

Procedure 9.4(e) because this has been written with a

conventional typeface using a 14-point font (with

footnotes no smaller than 12-points) using Microsoft

Office Word 2010 (version 14), in Courier New font.

/s/ Troy C. Hurley Troy C. Hurley