Fifth Court of Appeals __________________________________ NO. 05-13-00702-CR __________________________________ TERRISH JERMAINE GARMON, Appellant, v. STATE OF TEXAS, Appellee __________________________________ APPELLANT’S BRIEF __________________________________ Appealed from Criminal District Court No. 3 Dallas County, Texas Trial Cause Number F-1234332 Hon. Gracie Lewis Presiding Submitted by: Michael Mowla 603 N. Cedar Ridge Suite 100 Duncanville, TX 75116 Phone: 972-283-2600 Fax: 972-692-6636 [email protected]Texas Bar No. 24048680 Attorney for Appellant ORAL ARGUMENT NOT REQUESTED ACCEPTED 05-13-00702-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 12/31/2013 5:20:09 AM LISA MATZ CLERK
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STATE OF TEXAS, Appellee __________________________________
APPELLANT’S BRIEF
__________________________________
Appealed from Criminal District Court No. 3 Dallas County, Texas
Trial Cause Number F-1234332 Hon. Gracie Lewis Presiding
Submitted by: Michael Mowla 603 N. Cedar Ridge Suite 100 Duncanville, TX 75116 Phone: 972-283-2600 Fax: 972-692-6636 [email protected] Texas Bar No. 24048680 Attorney for Appellant
ORAL ARGUMENT NOT REQUESTED
ACCEPTED05-13-00702-CR
FIFTH COURT OF APPEALSDALLAS, TEXAS
12/31/2013 5:20:09 AMLISA MATZ
CLERK
Page 2 of 79
Identities of Parties and Counsel
Terrish Jermaine Garmon, Appellant Michael Mowla, Attorney for Appellant on Appeal, 603 N. Cedar Ridge Suite 100, Duncanville, Texas 75116, phone (972) 283-2600, fax (972) 692-6636, email [email protected]. J. Paul Rosemergy, Attorney for Appellant at Trial, 320 Decker Drive, Irving, Texas 75062, phone (214) 962-8946. State of Texas, Appellee. Craig Watkins, Dallas County District Attorney, Attorney for State of Texas, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone (214) 653-3600, fax (214) 653-3643. Michael Casillas, Dallas County Assistant District Attorney, Attorney for State of Texas on Appeal, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone (214) 653-3600, fax (214) 653-3643. Lisa Smith, Dallas County Assistant District Attorney, Attorney for State of Texas on Appeal, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone (214) 653-3600, fax (214) 653-3643. Marcia T. Taylor, Dallas County Assistant District Attorney, Attorney for Appellee at Trial, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone (214) 653-3600, fax (214) 653-3643. Brandie Wade, Dallas County Assistant District Attorney, Attorney for Appellee at Trial, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone (214) 653-3600, fax (214) 653-3643. Hon. Gracie Lewis, Presiding Judge of Criminal District Court No. 3, 133 N. Riverfront Blvd., Dallas, Texas 75207-4399, phone (214) 653-5830.
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Table of Contents Identity of Parties and Counsel ............................................................................ 2 Table of Contents ................................................................................................... 3 Index of Authorities ............................................................................................... 5 Statement of the Case and Jurisdiction ............................................................. 14 Statement Regarding Oral Argument ................................................................ 16 Issues Presented .................................................................................................... 17 Facts ....................................................................................................................... 18 Summary of the Arguments ................................................................................. 29 Arguments ............................................................................................................. 31 Issue One: The trial court erred and abused its discretion by allowing the State to present evidence of the alleged extraneous offenses and evidence of the 2004 conviction for evading arrest because: (1) the State failed to prove beyond a reasonable doubt that Appellant actually committed the alleged extraneous offenses; (2) evidence of the alleged extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, and flight; and (3) the probative value of admitting the alleged extraneous offenses and evidence of the 2004 conviction for evading arrest was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and clearly misled the jury ........................................... 31
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Issue Two: The evidence is legally insufficient to prove that Appellant committed Burglary of a Habitation because the State failed to prove that without the effective consent of the Complaining Witness, Appellant: (1) entered the habitation of the Complaining Witness with intent to commit a felony, theft, or an assault; or (2) remained concealed, with intent to commit a felony, theft, or an assault, in the habitation of the Complaining Witness; or (3) entered the habitation of the Complaining Witness and committed or attempted to commit a felony, theft, or an assault .................... 70 Conclusion and Prayer ......................................................................................... 78 Certificate of Service ............................................................................................. 79 Certificate of Compliance with Rule 9.4 ............................................................ 79
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Index of Authorities Adames v. State, 353 S.W.3d 854 (Tex. Crim. App. 2011) ................................... 71 Adelman v. State, 828 S.W.2d 418 (Tex. Crim. App. 1992) ................................. 70 Albert v. State, 579 S.W.2d 925 (Tex. Crim. App. 1979) ......................... 41, 42, 72 Albrecht vs. State, 486 S.W.2d 97 (Tex. Crim. App. 1972) .................................. 33 Allen v. State, 651 S.W.2d 267 (Tex. Crim. App. 1983) ....................................... 70 Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) .................................. 58 Arnott v. State, 498 S.W.2d 166 (Tex. Crim. App. 1973) ..................................... 52 Bachhofer v. State, 633 S.W.2d 869 (Tex. Crim. App. 1982) ........................ 58, 63 Blackmon v. State, 644 S.W.2d 12 (Tex. App. Dallas, 1982) ................................ 53 Boudreaux v. State, 757 S.W.2d 139 (Tex. App. Houston [1st Dist.] 1988, pet. ref.) ........................................................................................................ 76 Bowen v. State, 460 S.W.2d 421 (Tex. Crim. App. 1970) ..................................... 75 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................. 40, 41, 70, 72 Burgett v. State, 646 S.W.2d 615 (Tex. App. Fort Worth 1983, pet. ref.) .................................................................................................................. 51 Cano v. State, 13-11-00568-CR, 2012 Tex. App. LEXIS 10109, 2012 WL 6061788 (Tex. App. Corpus Christi, Dec. 6, 2012) (not designated for publication) ...................................................................... 45, 73 Cantrell v. State, 731 S.W.2d 84 (Tex. Crim. App. 1987) ............................. 35, 59 Carlsen v. State, 654 S.W.2d 444 (Tex. Crim. App. 1983) (opinion on rehearing) ........................................................................................... 70 Castillo v. State, 739 S.W.2d 280 (Tex. Crim. App. 1987) ................................... 59
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Celeste v. State, 805 S.W.2d 579 (Tex. App. Tyler 1991, no pet.) ....................... 56 Clark v. State, 543 S.W.2d 125 (Tex. Crim. App. 1976) ............................... 74, 75 Clark v. State, 693 S.W.2d 35 (Tex. App. Houston [1st Dist.] 1985, pet. ref.) .................................................................................................................. 58 Clark v. State, 726 S.W.2d 120 (Tex. Crim. App. 1986) ...................................... 34 Cobb v. State, 503 S.W.2d 249 (Tex. Crim. App. 1973) ....................................... 53 Collazo v. State, 623 S.W.2d 647 (Tex. Crim. App. 1981) ................................... 58 Connor v. State, 773 S.W.2d 13 (Tex. Crim. App. 1989) ..................................... 68 Corley v. State, 987 S.W.2d 615 (Tex. App. Austin 1999) ............................ 60, 62 Crane v. State, 786 S.W.2d 338 (Tex. Crim. App. 1990) ...................................... 47 Crossman v. State, 797 S.W.2d 321 (Tex. App. Corpus Christi 1990, no pet.) .................................................................................................................... 49 Daggett v. State, 187 S.W.3d 444 (Tex. Crim. App. 2005) ................................... 51 DeVaughn v. State, 749 S.W.2d 62 (Tex. Crim. App. 1988) ................................ 73 Dubose v. State, 915 S.W.2d 493 (Tex. Crim. App. 1996) ................................... 32 Epps v. State, 811 S.W.2d 237 (Tex. App. Dallas 1991, no pet.) .......................... 41 Ernster v. State, 308 S.W.2d 33 (Tex. Crim. App. 1957) ...................................... 38 Fentis v. State, 528 S.W.2d 590 (Tex. Crim. App. 1975) ...................................... 39 Ferrell v. State, 429 S.W.2d 901 (Tex. Crim. App. 1968) .................................... 54 Ford v. State, 484 S.W.2d 727 (Tex. Crim. App. 1972) ........................... 53, 54, 59 Foster v. State, 635 S.W.2d 710 (Tex. Crim. App. 1982) ..................................... 71
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Garcia v. State, 571 S.W.2d 896 (Tex. Crim. App. 1978) .................................... 73 Garza v. State, 715 S.W.2d 642 (Tex. Crim. App. 1986) ...................................... 71 Gear v. State, 340 S.W.3d 743 (Tex. Crim. App. 2011) ................................ 42, 72 George v. State, 890 S.W.2d 73 (Tex. Crim. App. 1994) ...................................... 37 Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987) ........................................ 71 Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) .................................... 71 Gomez v. State, 13-13-00084-CR, 2013 Tex. App. LEXIS 7831, 2013 WL 3326032 (Tex. App. Corpus Christi June 27, 2013) (not designated for publication) ...................................................................... 44, 73 Govan v. State, 671 S.W.2d 660 (Tex. App. Houston [1st Dist.] 1984) ............................................................................................................... 38, 39 Green v. State, 934 S.W.2d 92 (Tex. Crim. App. 1996) ................................. 32, 64 Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001) ................................. 67 Hammonds v. State, 500 S.W.2d 831 (Tex. Crim. App. 1973) ............................. 51 Hardage v. State, 552 S.W.2d 837 (Tex. Crim. App. 1977) ................................. 74 Hardesty v. State, 656 S.W.2d 73 (Tex. Crim. App. 1983) ............................ 46, 77 Harrell v. State, 884 S.W.2d 154 (Tex. Crim. App. 1994) .................................... 38 Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1990) .............................. 38, 68 Hernandez v. State, 897 S.W.2d 488 (Tex. App. Tyler 1995, no pet.) .................. 57 Howland v. State, 966 S.W.2d 98 (Tex. App. Houston [1st Dist.] 1998), affirmed, 990 S.W.2d 274 (Tex. Crim. App. 1999) ............................................... 64
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Hoyos v. State, 982 S.W.2d 419 (Tex. Crim. App. 1998) ..................................... 32 Huddleston v. United States, 485 U.S. 681 (1988) ................................................ 63 Hudson v. United States, 522 U.S. 93 (1997) ........................................................ 71 Jackson v. Virginia, 443 U.S. 307 (1979) ........................................... 40, 70, 71, 72 James v. State, 554 S.W.2d 680 (Tex. Crim. App. 1977) ........................................ 8 James v. State, 102 S.W.3d 162 (Tex. App. Fort Worth 2003, pet. ref.) .............. 57 Jones v. State, 751 S.W.2d 682 (Tex. App. San Antonio 1988, no pet.) ............... 55 Johnson v. State, 932 S.W.2d 296 (Tex. App. Austin 1996, pet. ref.) ........... 48, 49 Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) .................................. 71 Johnston v. State, 145 S.W.3d 215 (Tex. Crim. App. 2004) ................................. 35 Keller v. State, 818 S.W.2d 425 (Tex. App. Houston [1st Dist.] 1991, pet. ref.) ........................................................................................................ 49 Kirvin v. State, 575 S.W.2d 301 (Tex. Crim. App. 1978) ..................................... 74 Lang v. State, 698 S.W.2d 735 (Tex. App. El Paso 1985, no pet.) ....................... 62 Lankford v. State, 248 S.W. 389 (Tex. Crim. App. 1923) ..................................... 38 Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) ........................ 40, 70, 72 LaPoint v. State, 750 S.W.2d 180 (Tex. Crim. App. 1986) ............................. 41, 72 Lewis v. State, 674 S.W.2d 423 (Tex. App. Dallas 1984, pet. ref.) ....................... 63 Little v. State, 567 S.W.2d 502 (Tex. Crim. App. 1978) ....................................... 75 Lott v. State, 695 S.W.2d 237 (Tex. App. Corpus Christi 1985, pet. ref.) .................................................................................................................. 50
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Lucio v. State, 740 S.W.2d 115 (Tex. App. San Antonio 1987, no pet.) ............... 76 Maddox v. State, 682 S.W.2d 563 (Tex. Crim. App. 1985) .................................. 51 Malone v. State, 849 S.W.2d 414 (Tex. App. Beaumont 1993, no pet.) ............... 67 Mares v. State, 758 S.W.2d 932 (Tex. App. El Paso 1988, pet. ref.) .................... 52 Martin v. State, 722 S.W.2d 172 (Tex. App. Beaumont 1986, pet. ref.) ............... 35 Mason v. State, 99 S.W.3d 652 (Tex. App. Eastland 2003, pet. ref.) .................... 53 McDonald v. State, 513 S.W.2d 44 (Tex. Crim. App. 1974) ................................ 63 McFarland v. State, 930 S.W.2d 99 (Tex. Crim. App. 1996) ............................... 71 McGinnies v. State, 576 S.W.2d 384 (Tex. Crim. App. 1979) .............................. 75 McKay v. State, 707 S.W.2d 23 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871 (1986) .......................................................................... 47 Messenger v. State, 638 S.W.2d 883 (Tex. Crim. App. 1982) ................. 53, 54, 58 Middleton v. State, 14-12-00481-CR, 2013 Tex. App. LEXIS 6203, 2013 WL 2247393 (Tex. App. Houston [14th Dist] May 21, 2013) (memorandum opinion) .................................................................................. 45, 73 Miller v. State, 2 S.W.3d 475 (Tex. App. Tyler 1999, no pet.) ............................. 51 Mills v. State, 847 S.W.2d 453 (Tex. App. Eastland 1993, pet. ref.) .................... 57 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (opinion on rehearing) .................................................................................... passim Morgan v. State, 692 S.W.2d 877 (Tex. Crim. App. 1985) ................................... 55 Moreno v. State, 702 S.W.2d 636 (Tex. Crim. App. 1986) ............................ 41, 72 Narvaiz v. State, 840 S.W.2d 415 (Tex. Crim. App. 1992) ................................... 70
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Nelson v. State, 599 S.W.2d 809 (Tex. Crim. App. 1980) .................................... 76 Old Chief v. United States, 519 U.S. 172 (1997) ................................................... 65 Ortiz v. State, 577 S.W.2d 246 (Tex. Crim. App. 1979) ....................................... 71 Owens v. State, 576 S.W.2d 859 (Tex. Crim. App. 1979) ..................................... 76 Page v. State, 213 S.W.3d 332 (Tex. Crim. App. 2006) ....................................... 53 Parmer v. State, 38 S.W.3d 661 (Tex. App. Austin 2000, pet. ref.) ..................... 64 Phillips v. State, 538 S.W.2d 116 (Tex. Crim. App. 1976) ................................... 73 Phillips v. State, 659 S.W.2d 415 (Tex. Crim. App. 1983) ................................... 38 Pickett v. State, 542, S.W.2d 868 (Tex. Crim. App. 1976) ................................... 75 Plante v. State, 692 S.W.2d 487 (Tex. Crim. App. 1985) ..................................... 58 Pondexter v. State, 942 S.W.2d 577 (Tex. Crim. App. 1996) ............................... 50 Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001) ...................................... 48 Prescott v. State, 744 S.W.2d 128 (Tex. Crim. App. 1988) ........................... 56, 57 Rangel v. State, 250 S.W.3d 96 (Tex. Crim. App. 2008) ...................................... 32 Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1998) (opinion on rehearing) ..................................................................................... 36, 64 Redd v. State, 522 S.W.2d 890 (Tex. Crim. App. 1975) ....................................... 54 Reyes v. State, 69 S.W.3d 725 (Tex. App. Corpus Christi 2002) .......................... 58 Rice v. State, 753 S.W.2d 726 (Tex. App. Beaumont 1988, pet. ref.) ................... 53 Richardson v. State, 973 S.W.2d 384 (Tex. App. Dallas 1998, no pet.) ........ 43, 72
Thompson v. State, 615 S.W.2d 760 (Tex. Crim. App. 1981) ............................... 37 Tippins v. State, 530 S.W.2d 110 (Tex. Crim. App. 1975) .................................... 39 Torres v. State, 785 S.W.2d 824 (Tex. Crim. App. 1989) ..................................... 71 Turner v. State, 754 S.W.2d 668 (Tex. Crim. App. 1988) .................................... 63 United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) ............................... 35, 50 Vaughn v. State, 118 S.W.2d 312 (1938) ............................................................... 38 Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992) .................................... 33 Voelkel v. State, 501 S.W.2d 313 (Tex. Crim. App. 1973) ............................. 59, 60 Walker v. State, 588 S.W.2d 920 (Tex. Crim. App. 1979) .................................... 54 Warren v. State, No. 05-12-00916-CR, 2013 Tex. App. LEXIS 8676, 2013 WL 3717802 (Tex. App. Dallas, July 12, 2013) (not designated for publication) ...................................................................... 44, 72 Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000) ........................ 31, 32 Whittington v. State, 580 S.W.2d 845 (Tex. Crim. App. 1979) ...................... 34, 56 Williams v. State, 506 S.W.2d 868 (Tex. Crim. App. 1974) ................................. 74 Yates v. State, 941 S.W.2d 357 (Tex. App. Waco 1997, pet. ref.) ........................ 64 Ybarra v. State, 401 S.W.2d 608 (Tex. Crim. App. 1966) .................................... 59 Yohey v. State, 801 S.W.2d 232 (Tex. App. San Antonio 1990, pet. ref.) ............ 67 Young v. State, 675 S.W.2d 770 (Tex. Crim. App. 1984) ..................................... 41 Constitutions U.S. Const. Amend. V ........................................................................................... 71
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U.S. Const. Amend. XIV ....................................................................................... 71 Statutes and Rules Tex. Code Crim. Proc. Art. 44.25 .......................................................................... 71 Tex. Pen. Code § 30.02 .................................................................................. passim Tex. Pen. Code § 31.03 .......................................................................................... 49 Tex. Rule Evid. 401 ............................................................................................... 33 Tex. Rule Evid. 402 ........................................................................................ 33, 63 Tex. Rule Evid. 403 ....................................................................................... passim Tex. Rule Evid. 404 ....................................................................................... passim Tex. Rule App. Proc. 9.4 ........................................................................................ 79 Tex. Rule App. Proc. 25.2 ...................................................................................... 15 Tex. Rule App. Proc. 26.2 ...................................................................................... 15 Tex. Rule App. Proc. 39.1 ...................................................................................... 16 Tex. Rule App. Proc. 39.2 ...................................................................................... 16 Tex. Rule App. Proc. 43.2 ...................................................................................... 71 Tex. Rule App. Proc. 44.2 ...................................................................................... 38 Other Sources J. McLaughlin, Weinstein’s Federal Evidence § 403.02 (2006 rev.) .................... 65 K. Broun, et al., McCormick on Evidence § 185 at 737 (6th ed. 2006) .................. 66 S. Goode, et al., Texas Practice: Guide to the Texas Rules of Evidence, § 403.2 (3rd ed. 2002) ............................................................................................ 66
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To the Honorable Justices of the Court of Appeals:
Terrish Jermaine Garmon, Appellant, submits this Brief in support of his
appeal of his judgment of conviction and sentence:
Statement of the Case and Jurisdiction
This case is an appeal of a judgment of conviction and sentence under Cause
Number F-1234332 from Criminal District Court Number 3 of Dallas County,
Texas. (CR, 78-80).1 Appellant was indicted for Burglary of a Habitation. (RR2,
7-8; CR, 14). The State alleged that on or about May 26, 2012, in Dallas County,
Texas, with the intent to commit a theft or attempt to commit a theft, Appellant
intentionally and knowingly entered the habitation of Jude Garcia without the
effective consent of Jude Garcia. (RR2, 7-8; CR, 14). The indictment further
alleged that prior to the commission of this offense, Appellant was finally
convicted of two other felony offenses: that on October 7, 2005, under cause
number F-0415083, in Criminal District Court Number 4 of Dallas County, Texas,
Appellant was finally convicted of the felony offense of Evading Arrest by a Motor
Vehicle; and also on February 13, 2003, under cause number F-0224970, in the
204th Judicial District Court of Dallas County, Texas, Appellant was finally
convicted of the felony offense of Burglary of a Habitation. (RR2, 7-8; CR, 14).
1 The Clerk’s Record, which is comprised of a single volume, is referenced throughout this Brief as “CR” followed by the page number of the Clerk’s Record. The Reporter’s Record, which is comprised of seven volumes, is referenced throughout this Brief as “RR” followed by the volume number and page number.
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Appellant pleaded “not guilty.” (RR2, 8). After a trial on the merits, on
April 25, 2013, Appellant was convicted by a jury of Burglary of a Habitation.
(RR5, 5; CR, 78-80); See Tex. Pen. Code § 30.02. On the same day, Appellant
was sentenced to 15 years in prison to the Texas Department of Criminal Justice,
Institutional Division, and was fined $10,000.00. (RR5, 63; CR, 78-80)
On April 25, 2013, Appellant filed a timely notice of appeal, thus perfecting
this appeal. (CR, 84); See Tex. Rule App. Proc. 26.2(a). The trial court signed a
Certification of Appellant’s Right of Appeal, certifying that this is not a plea
bargain case, and that Appellant has the right to an appeal. (CR, 83); See Tex. Rule
App. Proc. 25.2(a)(2). As a result, this Court has jurisdiction over this appeal.
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Statement Regarding Oral Argument
Pursuant to Texas Rules of Appellate Procedure 39.1 and 39.2, Appellant
does not request oral argument before this Court of Appeals. See Tex. Rule App.
Proc. 39.1 & 39.2. Although this is a meritorious appeal of a criminal case,
Appellant believes that the facts and legal arguments are adequately presented in
this Brief and in the record on appeal. Appellant also believes that the decisional
process of the Court of Appeals will not be significantly aided by oral argument.
As a result, Appellant does not request oral argument and asks that the issues
presented in this Brief be considered by this Court of Appeals by submission only.
Page 17 of 79
Issues Presented
Issue One: The trial court erred and abused its discretion by allowing the State to present evidence of the alleged extraneous offenses and evidence of the 2004 conviction for evading arrest because: (1) the State failed to prove beyond a reasonable doubt that Appellant actually committed the alleged extraneous offenses; (2) evidence of the alleged extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, and flight; and (3) the probative value of admitting the alleged extraneous offenses and evidence of the 2004 conviction for evading arrest was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and clearly misled the jury. Issue Two: The evidence is legally insufficient to prove that Appellant committed Burglary of a Habitation because the State failed to prove that without the effective consent of the Complaining Witness, Appellant: (1) entered the habitation of the Complaining Witness with intent to commit a felony, theft, or an assault; or (2) remained concealed, with intent to commit a felony, theft, or an assault, in the habitation of the Complaining Witness; or (3) entered the habitation of the Complaining Witness and committed or attempted to commit a felony, theft, or an assault.
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Facts
Pretrial hearing on State’s motion for certain alleged extraneous offenses to be introduced during the innocence/guilt portion of the trial
Prior to voir dire commencing, the trial court heard the State’s motion to
introduce evidence of extraneous offenses under the theories of the “doctrine of
chances” and “modus operandi.” (RR2, 9). The State argued that under the theory
of the “doctrine of chances,” an extraneous offense is admissible if: (1) it is
relevant; and (2) the probative value is not substantially outweighed by prejudice.
(RR2, 9).
The State alleged that in the case before this Court, the complaining witness
(“CW”) posted a motorcycle for sale on Craigslist. (RR2, 9-10). Appellant
allegedly called the CW on May 26, 2012 and inquired about purchasing the
motorcycle. (RR2, 10, 11). Appellant allegedly was the only person that the CW
gave his address to. (RR2, 10). Later that same evening, holes were cut in the
garage door of the CW’s home, the emergency latch was pulled, and the
motorcycle was the only item taken from the CW’s garage. (RR2, 10). Appellant
allegedly never called back to check on purchasing the motorcycle. (RR2, 10).
The State then presented four extraneous offenses that it planned to present
during the innocence/guilt phase of the trial. (RR2, 10). In the first offense, which
allegedly occurred on or about March 18, 2012 in Coppell, Texas (“Coppell
alleged extraneous act”), the alleged victim placed his motorcycle for sale on
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Craigslist. (RR2, 10, 11). A person who identified himself as Marcus or Demarcus
with a number allegedly connected to Appellant called the alleged victim and set
up an appointment to look at the motorcycle. (RR2, 10). The alleged victim
claimed that this “Marcus” or “Demarcus” was the only person to whom he gave
his phone number to. (RR2, 10). The caller failed to appear to look at the
motorcycle. (RR2, 10). That evening, someone attempted to steal the motorcycle
from the home by cutting holes into the garage but was thwarted due to a dog
barking in the home. (RR2, 10-11).
The second extraneous act the State planned to present allegedly occurred in
Fort Worth on or about April 5, 2012 (“Fort Worth alleged extraneous act”). (RR2,
11). In this act, the alleged victim placed his motorcycle for sale on Craigslist.
(RR2, 11). A person named “Terry” called using the same phone number identified
with Appellant. (RR2, 11). Holes were cut in the garage door of the home and the
only item stolen was the motorcycle. (RR2, 11-12). “Terry” never showed up to
see the motorcycle. (RR2, 12).
The third extraneous act the State planned to present allegedly occurred in
Grand Prairie on or about April 12, 2012 (“Grand Prairie alleged extraneous act”).
(RR2, 12). One motorcycle was listed on Craigslist. (RR2, 12). An exchange of
text messages allegedly occurred between the alleged victim and a phone number
linked to Appellant. (RR2, 12). The alleged victim gave this person the address to
Page 20 of 79
his home, and two motorcycles were stolen the same night from the garage. (RR2,
12). No holes were cut on the garage door, and the manner of entry into the garage
is unknown. (RR2, 12).
The fourth extraneous act the State planned to present allegedly occurred in
Garland on or about May 10, 2012 (“Garland extraneous act”). (RR2, 12-13). A
person named “Terry” allegedly called the alleged victim from the same number
allegedly linked to Appellant. (RR2, 12). The garage door had glass contained in
it, which was broken. (RR2, 12). Here, “Terry” again did not call back to come
look at the motorcycle. (RR2, 13).
The State argued that cutting holes into a garage door is a “very unique way”
of entry into a garage. (RR2, 13).
Appellant objected to the State’s introduction of these four extraneous
offenses, arguing that besides the fact that all are unadjudicated extraneous
offenses, the only link is a phone call from a certain phone number linked to
Appellant. (RR2, 14). There is no evidence that Appellant was ever present inside
the homes. (RR2, 14). Further, Appellant argued, a search warrant was issued on
Appellant’s home, and no property was found. (RR2, 14). None of the stolen
property was recovered. (RR2, 14). Arguing that the evidence is more prejudicial
than probative, Appellant asserted that although the State wants to use the evidence
of the extraneous offenses to show the identity of who made the call, there is no
Page 21 of 79
evidence that Appellant committed any of the burglaries, and the only evidence in
fact is that Appellant called asking about the motorcycles and then did not show
up. (RR2, 14-15). Appellant also requested an order on a motion in limine, asking
that none of the extraneous offenses be mentioned by the State or its witnesses
until a hearing is conducted outside of the presence of the jury to determine
whether a jury could find beyond a reasonable doubt that Appellant committed any
of the extraneous offenses. (RR2, 15).
The trial court found that the extraneous offenses are relevant and that their
probative value outweighs their prejudicial effect. (RR2, 17). The trial court
granted Appellant’s motion in limine, ordering the State or its witnesses to not
refer to the extraneous offenses during its opening statement so that a hearing
could be had outside of the presence of the jury to determine whether they meet the
requirements of proving identity, modus operandi, signature of Appellant, and
possibly the preparation of Appellant. (RR2, 17-18).
Evidentiary hearing to determine whether certain alleged extraneous offenses may be introduced during the innocence/guilt portion of the trial
After voir dire and prior to commencement of the innocence/guilt portion of
the trial, the trial court conducted an evidentiary hearing to determine whether
certain alleged extraneous offenses may be introduced during the innocence/guilt
portion of the trial. (RR4, 3). Rocky Bailey, an auto theft investigator with the
Irving Police Department, testified that the CW in this case had received one phone
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call regarding a motorcycle the CW advertised for sale on Craigslist. (RR4, 3-5).
After the CW gave the address to the person who called, that night somebody cut a
hole into the garage door and stole the motorcycle from the CW’s garage. (RR4,
5-6).
Bailey also learned from other law enforcement agencies that the motorcycle
thefts from Coppell, Fort Worth, and Grand Prairie occurred in the same manner as
the one in Irving. (RR4, 7). No fingerprints were found at the home in the
Coppell and Forth Worth cases. (RR4, 10, 12). None of the motorcycles were
recovered. (RR4, 10). After a search was conducted at Appellant’s home pursuant
to a search warrant, no stolen property was recovered from the home. (RR4, 11).
The Grand Prairie alleged victim’s phone number was found in Appellant’s home.
(RR4, 13). Bailey did not know whether any fingerprints were found in the Fort
Worth case. (RR4, 11).
Steven Hayes with the Coppell Police Department testified that after the
alleged victim in Coppell advertised his motorcycle on Craigslist, someone who
was using Appellant’s phone number called and said he wanted to see the
motorcycle. (RR4, 19-21). The alleged victim was then called back by the same
person and was told that he was not going to go see the motorcycle. (RR4, 20).
That night, the alleged victim’s dogs were barking, causing him to go into the yard,
where he saw nothing. (RR4, 20). The next day, the alleged victim discovered a
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hole cut in the garage door, the garage door rolled up, but nothing was taken from
the home or garage. (RR4, 20). No fingerprints or other evidence connecting
Appellant was found at the home. (RR4, 27).
Hayes also testified that in Garland and Grand Prairie, a person using
Appellant’s phone number called in response to Craigslist advertisements offering
motorcycles for sale, a person called, nobody appeared to look at the motorcycles,
holes were cut in the garage doors, and the motorcycles from each home were
stolen. (RR4, 22-23, 27). In addition, Hayes testified that in 2004 in Richardson,
Texas, a garage door was cut open, a motorcycle was stolen, and Appellant was
found on the motorcycle in Balch Springs, Texas, and arrested for the offense.
(RR4, 25). This motorcycle belonged to Dustin Mantell, who confirmed that a
hole had been cut into his garage door, and his motorcycle had been stolen, later to
be found in Balch Springs. (RR4, 32-33). In addition, he confirmed that no prints
belonging to Appellant were found. (RR4, 36-37).
Appellant again objected to the admission of the extraneous offenses under
Texas Rules of Evidence 403 and 404(b), arguing that there was no evidence that
Appellant ever went to any of the homes. (RR4, 39). And in the 2004 case,
Appellant pointed out that he was convicted of evading arrest with a motor vehicle
(the motorcycle) and not with stealing the motorcycle or burglarizing it from
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Mantell’s home. (RR4, 39-40). Appellant also argued that the 2004 case is too
remote to be admissible. (RR4, 42).
The trial court overruled Appellant’s objections, allowing evidence of the
extraneous offenses. (RR4, 42). The trial court also allowed evidence of the
evading arrest from 2004. (RR4, 42). Although the trial court agreed that the 2004
evading arrest case is remote, since identity, modus operandi, and signature are at
issue, the 2004 evading arrest case “goes to” the present offense. (RR4, 42). The
trial court allowed the State to go into the fact that there was a conviction, but
prohibited the State from introducing evidence of the facts of the act of Appellant’s
evading arrest. (RR4, 42). Appellant requested a running objecting to these
issues, which the trial court granted. (RR4, 44). Further, each time the extraneous
offenses were presented during the innocence/guilty phase of the trial, Appellant
renewed his objections under Texas Rules of Evidence 403 and 404(b). (RR4,
Prior to the extraneous offenses being presented to the jury, the trial court
admonished the jury, instructing the jury that it cannot consider the evidence for
any purpose unless the jury finds and believes beyond a reasonable doubt that
Appellant committed any of the extraneous offenses, if any were in fact
committed. (RR4, 131). The trial court further admonished the jury that when
considering any extraneous offense, it may do so in determining a common plan or
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scheme of Appellant in connection with the offense for which Appellant is on trial.
(RR4, 131).
Evidence presented during the innocence/guilt portion of the trial regarding the charged offense
Jude Garcia lives in Irving, Texas. (RR4, 51-52). Shortly after purchasing a
motorcycle on Craigslist, Garcia decided to sell it on Craigslist. (RR4, 49-52, 72).
Garcia took a picture of the motorcycle and posted it on Craigslist along with his
phone number and full name. (RR4, 65). He did not know how many times the
advertisement was viewed by different individuals. (RR4, 65). The advertisement
was on Craigslist two to three days. (RR4, 65). Garcia received one call for the
purchase of the motorcycle from a person who never showed up. (RR4, 55-57,
72).
The next morning, on May 26, 2012, Garcia called the person back and
asked if he still wanted to buy the motorcycle. (RR4, 57, 102). The person said
“no,” that he already purchased another one, and hanged up. (RR4, 57, 74).
Garcia then noticed two circular holes in each of his garage doors. (RR4, 58-59,
95-96). Garcia pulled up one of the doors, and discovered that the motorcycle was
gone. (RR4, 58-60). Neither Garcia nor his wife heard any noises that night.
(RR4, 60, 73). Garcia’s wife contacted the person, “Terry,” who was identified as
Appellant, and had some communications with Appellant. (RR4, 78-80, 119-120,
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139). No fingerprints were found in the garage. (RR4, 89, 98, 110, 137).
Appellant never admitted to any person any wrongdoing or crime. (RR4, 139).
Evidence presented during the innocence/guilt portion of the trial regarding the alleged extraneous offenses
Over Appellant’s objections, evidence was presented to the jury regarding
the extraneous offenses. As to the Grand Prairie alleged extraneous act, no hole
was cut in the garage of the Grand Prairie home, and there were no visible signs of
forced entry. (RR4, 142, 203). Two male persons contacted the Grand Prairie
alleged victim to inquire about the motorcycle. (RR4, 201). The person who the
Grand Prairie alleged victim claimed that he would come by and purchase the
motorcycle did not give his name to the alleged victim. (RR4, 202).
As to the Coppell alleged extraneous act, the Coppell alleged victim’s dog
began to bark, and the motorcycle was not stolen. (RR4, 152, 155, 164).
As to the Fort Worth alleged extraneous act, the garage door had a hole cut
into it, and the motorcycle was missing. (RR4, 156-157). Appellant was a person
whose phone number was used to contact the alleged victims. (RR4, 154, 186). No
fingerprints implicating Appellant were found in any of the locations of the alleged
extraneous acts, and at the location of the Fort Worth alleged extraneous act, there
was no attempt to obtain fingerprints. (RR4, 160, 191, 194). Appellant was not
charged in any of the alleged extraneous cases. (RR4, 161). None of the alleged
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victims who testified ever met Appellant in person. (RR4, 137-139, 173, 177, 194-
195).
Evidence presented during the innocence/guilt portion of the trial regarding the 2004 Richardson evading arrest case
Evidence regarding the 2004 Richardson evading arrest case was presented
to the jury. (RR4, 158, 217). A hole was cut in the garage door of the home.
(RR4, 158, 219). The motorcycle that was taken from that home was found in
Appellant’s possession days later. (RR4, 158).
Evidence presented during the innocence/guilt portion of the trial regarding the search of Appellant’s home
Upon executing a search warrant at Appellant’s home on June 14, 2012, the
police found no motorcycles of any kind inside Appellant’s home. (RR4, 128-129,
137-139). No cutting tools or “chopping” tools that are used to remove parts from
a motorcycle were found in Appellant’s home. (RR4, 139, 145-146). Some
motorcycle parts were present, but none were identified as stolen parts. (RR4, 128,
145).
Other evidence presented during the innocence/guilt portion of the trial Nobody contacted Craigslist to determine who actually viewed the
advertisements. (RR4, 136, 176, 180). Nobody had ever seen Appellant at any of
the homes. (RR4, 136). Nobody had ever seen Appellant in any of the
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neighborhoods where the homes are located. (RR4, 136). Nobody testified that
they viewed any surveillance film in or around any of the homes. (RR4, 137).
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Summary of the Arguments
Appellant presents the following arguments in this Brief: First, Appellant
will show that the trial court erred and abused its discretion by allowing the State
to present evidence of the alleged extraneous offenses and evidence of the 2004
conviction for evading arrest because: (1) the State failed to prove beyond a
reasonable doubt that Appellant actually committed the alleged extraneous
offenses; (2) evidence of the alleged extraneous offenses presented to the jury
during the innocence/guilt phase were not admissible based upon motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident, and flight; and (3) the probative value of admitting the alleged extraneous
offenses and evidence of the 2004 conviction for evading arrest was substantially
outweighed by the danger of unfair prejudice, confusion of the issues, and clearly
misled the jury.
Second, Appellant will show that the evidence is legally insufficient to prove
that Appellant committed Burglary of a Habitation because the State failed to
prove that without the effective consent of the Complaining Witness, Appellant:
(1) entered the habitation of the Complaining Witness with intent to commit a
felony, theft, or an assault; or (2) remained concealed, with intent to commit a
felony, theft, or an assault, in the habitation of the Complaining Witness; or (3)
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entered the habitation of the Complaining Witness and committed or attempted to
commit a felony, theft, or an assault.
As to Issue One, Appellant will ask this Court to reverse the judgment of
conviction and sentence for Burglary of a Habitation and remand this case back to
the trial court for a new trial, and specifically order that the evidence of the alleged
extraneous acts and the 2004 conviction not be allowed during the innocence/guilt
portion of the trial. As to Issue Two, Appellant will ask this Court to reverse the
judgment of conviction and sentence for Burglary of a Habitation and enter a
judgment of acquittal.
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Arguments
Issue One: The trial court erred and abused its discretion by allowing the State to present evidence of the alleged extraneous offenses and evidence of the 2004 conviction for evading arrest because: (1) the State failed to prove beyond a reasonable doubt that Appellant actually committed the alleged extraneous offenses; (2) evidence of the alleged extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, and flight; and (3) the probative value of admitting the alleged extraneous offenses and evidence of the 2004 conviction for evading arrest was substantially outweighed by the danger of unfair prejudice, confusion of the issues, and clearly misled the jury.
Introduction In this Issue, Appellant will begin by discussing the standard of review for
this Court and then discuss in general the admissibility of extraneous offenses.
Then Appellant will show that regardless of which exception the State uses under
Texas Rule of Evidence 404(b) and the caselaw exceptions, the State failed to
prove beyond a reasonable doubt that Appellant actually committed the alleged
extraneous offenses. Further, Appellant will show that the probative value of
admitting the alleged extraneous offenses and evidence of the 2004 conviction for
evading arrest was substantially outweighed by the danger of unfair prejudice,
confusion of the issues, and clearly misled the jury.
Standard of review is the abuse of discretion standard
A reviewing court should review a trial court’s evidentiary rulings for
an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.
S.W.2d 357, 367 (Tex. App. Waco 1997, pet. ref.). It is not necessary for a trial
court to put its findings and conclusions about a Rule 403 objection on the
record. Green v. State, 934 S.W.2d at 104. In Parmer v. State, the Fourth Court of
Appeals held that when a Rule 403 objection is made and overruled, the trial court
performed a balancing test in that moment. Parmer v. State, 38 S.W.3d at 670. A
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balancing test does not need to be performed on the record to render the balancing
test completed. Id.; Green v. State, 934 S.W.2d 92, 104 (Tex. Crim. App. 1996).
Texas Rule of Evidence 403 recognizes that relevance alone does not ensure
admissibility. J. McLaughlin, Weinstein’s Federal Evidence § 403.02[1][a] at 403-
406 (2006 rev.) (Discussion of Rule 403 of the Federal Rules of Evidence). A
cost/benefit analysis must often be conducted by the trial court. Id. Relevant
evidence may be excluded if its probative value is not worth the problems that its
admission may cause. Id. The issue is whether the “search for truth will be helped
or hindered by the interjection of distracting, confusing, or emotionally charged
evidence. In making this determination, the [trial] court must assess the probative
value of the proffered item as well as the harmful consequences specified in Rule
403 that might flow from its admission.” Id.
The key phrases in this analysis are “probative value” and “unfair
prejudice.” Probative value means more than simply relevance. Old Chief v.
United States, 519 U.S. 172, 184 (1997) (Discussion of Federal Rule of Evidence
403). Probative value is the inherent probative force of an item of evidence; that
is, how strongly it serves to make more or less probable the existence of a fact of
consequence to the litigation-coupled with the proponent’s need for that item of
evidence. See Montgomery v. State, 810 S.W.2d at 390 (“[w]hen the proponent [of
an item of evidence] has other compelling or undisputed evidence to establish the
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proposition or fact that the [item of evidence] goes to prove, the [probative value of
the item of evidence] will weigh far less than it otherwise might in the probative-
versus-prejudicial balance.”).
The second key phrase of Rule 403, “unfair prejudice,” refers to a tendency
to suggest decision on an improper basis, commonly, though not necessarily, an
emotional one. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005);
Rogers v. State, 991 S.W.2d 263, 266 (Tex. Crim. App. 1999). Evidence might be
unfairly prejudicial if, for example, it arouses the jury’s hostility or sympathy for
one side without regard to the logical probative force of the evidence. K. Broun, et
al., McCormick on Evidence § 185 at 737 (6th ed. 2006).
Rule 403 also discusses other issues relevant to the trial court’s analysis.
“Confusion of issues” refers to a tendency to confuse or distract the jury from the
main issues in the case. S. Goode, et al., Texas Practice: Guide to the Texas Rules
of Evidence, § 403.2 at 165 (3rd ed. 2002). “Misleading the jury” refers to a
tendency of certain evidence to be given undue weight by the jury on other than
emotional grounds. Id. § 403.2 at 164.
The Court of Criminal Appeals has provided a Rule 403 analysis based upon
the following factors: (1) the probative value of the evidence, (2) the potential of
the evidence to impress the jury in some irrational yet indelible way, (3) how much
trial time the state needs to develop the evidence such that the jury will be diverted
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from the charged offense, and (4) how great is the State’s need for the extraneous
evidence. State v. Mechler, 153 S.W.3d at 440; Montgomery v. State, 810 S.W.2d
at 389-390.
The defendant need not object to the admission of extraneous offense
instruction in order to be entitled to a contemporaneous limiting instruction of the
extraneous offense evidence to the purpose that justified its admission. Hammock
v. State, 46 S.W.3d 889, 894 (Tex. Crim. App. 2001). But if the defendant makes
an objection, the defendant should object specifically that the probative value was
outweighed by the danger of unfair prejudice to defendant. Yohey v. State, 801
S.W.2d 232 (Tex. App. San Antonio 1990, pet. ref.); Malone v. State, 849 S.W.2d
414 (Tex. App. Beaumont 1993, no pet.).
This was done by Appellant in this case. And (1) the probative value of the
alleged extraneous acts and the 2004 conviction were substantially outweighed by
prejudice; (2) the potential of the evidence to impress the jury in some irrational
yet indelible way was great, (3) the State spent a considerable amount of time
developing the evidence of the alleged extraneous acts and the 2004 conviction and
in fact the jury had to have been diverted from the presently-charged offense, and
(4) the State did not need to present evidence of the alleged extraneous acts and the
2004 conviction to present evidence of the presently-charged offense. See State v.
Mechler, 153 S.W.3d at 440 and Montgomery v. State, 810 S.W.2d at 389-390.
Page 68 of 79
As a result, the probative value of admitting the alleged extraneous offenses and
evidence of the 2004 conviction for evading arrest was substantially outweighed by
the danger of unfair prejudice, confusion of the issues, and clearly misled the jury.
The trial court’s error was not harmless
The trial court’s error was not harmless because when one eliminates the
evidence of the alleged extraneous acts and the 2004 conviction, there simply is
insufficient evidence to prove that Appellant committed the presently-charged
offense. See Tex. Rule App. Proc. 44.2(a). The trial court’s error clearly
contributed to the jury’s verdict the error. Connor v. State, 773 S.W.2d 13, 15
(Tex. Crim. App. 1989).
In applying the harmless error rule, a reviewing court “should not focus
upon the propriety of the outcome of the trial, but instead should be concerned with
the integrity of the process leading to the conviction. Harris v. State, 790 S.W.2d
568, 587 (Tex. Crim. App. 1990). The reviewing court “should examine the
source of the error, the nature of the error, whether or to what extent it was
emphasized by the State, its probable collateral implications, and how much weight
a juror would probably place upon the error.” Id. In this case, the integrity of the
process that led to Appellant’s conviction is suspect. The State heavily
emphasized the evidence of the alleged extraneous acts and the 2004 conviction so
it is likely that the collateral implications severely harmed Appellant.
Page 69 of 79
Consequently, it is reasonable to conclude that the jury placed great weight on the
error.
Conclusion The trial court erred and abused its discretion by allowing the State to
present evidence of the alleged extraneous offenses and evidence of the 2004
conviction for evading arrest because: (1) the State failed to prove beyond a
reasonable doubt that Appellant actually committed the alleged extraneous
offenses; (2) evidence of the alleged extraneous offenses presented to the jury
during the innocence/guilt phase were not admissible based upon motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident, and flight; and (3) the probative value of admitting the alleged extraneous
offenses and evidence of the 2004 conviction for evading arrest was substantially
outweighed by the danger of unfair prejudice, confusion of the issues, and clearly
misled the jury. Appellant thus asks this Court of Appeals to reverse the judgment
of conviction and sentence for Burglary of a Habitation and remand this case back
to the trial court for a new trial, and order that the evidence of the alleged
extraneous acts and the 2004 conviction not be allowed during the innocence/guilt
portion of the trial.
Page 70 of 79
Issue Two: The evidence is legally insufficient to prove that Appellant committed Burglary of a Habitation because the State failed to prove that without the effective consent of the Complaining Witness, Appellant: (1) entered the habitation of the Complaining Witness with intent to commit a felony, theft, or an assault; or (2) remained concealed, with intent to commit a felony, theft, or an assault, in the habitation of the Complaining Witness; or (3) entered the habitation of the Complaining Witness and committed or attempted to commit a felony, theft, or an assault.
Standard of Review for Claims of Legal Insufficiency
When reviewing the legal sufficiency of the evidence, an appellate court
must determine whether “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt,” and not whether the appellate
court “believes that the evidence at the trial established guilt beyond a reasonable
doubt.” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009), quoting
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979); Brooks v. State, 323 S.W.3d at
912; Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Carlsen v.
State, 654 S.W.2d 444, 448 (Tex. Crim. App. 1983) (opinion on rehearing). After
“giving proper deference” to the role of the trier of fact, an appellate court must
“uphold the verdict unless a rational factfinder must have had reasonable doubt as
to any essential element.” Laster v. State, 275 S.W.3d at 518, citing Narvaiz v.
App. 1996). And should an appellate court find that the verdict is contrary to the
evidence presented at trial, the court is empowered to reverse the conviction and
enter a judgment of acquittal. Tex. Code Crim. Proc. Art. 44.25; Tex. Rule App.
Proc. 43.2(c).
Evidence is legally sufficient only if the state has affirmatively proven each
of the essential elements of the offense. Gold v. State, 736 S.W.2d 685 (Tex. Crim.
App. 1987), overruled on other grounds in Torres v. State, 785 S.W.2d 824 (Tex.
Crim. App. 1989); Jackson v. Virginia, 443 U.S. at 319; Adames v. State, 353
S.W.3d 854, 859-860 (Tex. Crim. App. 2011). And the State’s case falls short if
there is a material variance between the indictment allegations and the proof at
trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001); Johnson v.
State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012). This occurs when a statute
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specifies alternate methods by which an offense could be committed, the charging
instrument pleads one of those alternate methods, but the State proves, instead, an
unpled method. Id.
The evidence is legally insufficient to prove that Appellant committed Burglary of a Habitation because the State failed to prove that without the effective consent of the Complaining Witness, Appellant: (1) entered the habitation of the Complaining Witness with intent to commit a felony, theft, or an assault; or (2) remained concealed, with intent to commit a felony, theft, or an assault, in the habitation of the Complaining Witness; or (3) entered the habitation of the Complaining Witness and committed or attempted to commit a felony, theft, or an assault. The following arguments will show that no “rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” See Laster v.
State, 275 S.W.3d at 517; Jackson v. Virginia, 443 U.S. at 318-319; Brooks v.
State, 323 S.W.3d at 912. The State failed to prove that Appellant entered any of
the habitations with the intent to commit a felony, theft, or an assault, remained
concealed, with intent to commit a felony, theft, or an assault, in the habitations, or
entered any of the habitations and committed or attempted to commit a felony,
theft, or an assault. See Tex. Pen. Code § 30.02; LaPoint v. State, 750 S.W.2d at
182; Moreno v. State, 702 S.W.2d at 641; Albert v. State, 579 S.W.2d at 926.
This issue was already fully briefed in issue on above, so Appellant will
point this court to the arguments above and following cited cases: Gear v. State,
340 S.W.3d at 746; Roane v. State, 959 S.W.2d at 388-389; Richardson v. State,
973 S.W.2d at 387; Warren v. State, No. 05-12-00916-CR, 2013 Tex. App. LEXIS
1978). It is also not necessary for the defendant to intend to steal property from
within the burglarized premises, as long as it can be proven that the unlawful entry
was made for the purpose of furthering the commission of an intended theft. Id.;
See Robles v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984). And intent is a
question of fact for the jury. Stearn v. State, 571 S.W.2d 177, 177-178 (Tex. Crim.
App. 1978).
In the presently-charged case, Garcia took a picture of a motorcycle and
posted it on Craigslist along with his phone number and full name. (RR4, 65). He
did not know how many times the advertisement was viewed by different
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individuals. (RR4, 65). The advertisement was on Craigslist two to three days.
(RR4, 65). Garcia received one call for the purchase of the motorcycle from a
person who never showed up. (RR4, 55-57, 72). The next morning, Garcia
noticed two circular holes in each of his garage doors, and discovered that his
motorcycle was gone. (RR4, 58-60, 95-96). Garcia’s wife contacted the person,
“Terry,” who was identified as Appellant, and had some communications with
him. (RR4, 78-80, 119-120, 139). Neither Garcia nor his wife heard any noises
that night. (RR4, 60, 73). Nobody saw Appellant near the home. No stolen
motorcycles or parts were found in Appellant’s possession. No fingerprints were
found in the garage. (RR4, 89, 98, 110, 137). Appellant never admitted to any
person any wrongdoing or crime. (RR4, 139).
Circumstantial evidence will support a burglary conviction. Hardage v.
State, 552 S.W.2d 837, 838-840 (Tex. Crim. App. 1977). The state may use
circumstantial evidence to show burglarious entry, Clark v. State, 543 S.W.2d 125,
127 (Tex. Crim. App. 1976), lack of consent, Kirvin v. State, 575 S.W.2d 301, 303
(Tex. Crim. App. 1978), entry during the day or night, Williams v. State, 506
S.W.2d 868, 869-870 (Tex. Crim. App. 1974), and intent Stearn v. State, 571
S.W.2d at 178. Courts have held a jury’s circumstantial evidence conviction
sufficient when the state showed:
1. The defendant was present at the relatively unpopulated scene of the crime, fled from the area with a small case, and police found the
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defendant hiding near three items belonging to the victim. Thompson v. State, 563 S.W.2d 247, 250 (Tex. Crim. App. 1978);
2. The defendant’s fingerprints were found and must have been made at the time of the burglary. Bowen v. State, 460 S.W.2d 421, 422-423 (Tex. Crim. App. 1970).
3. The police, answering a silent alarm, found the defendant kneeling beside a broken glass door, pieces of glass on the ground, and the defendant wearing gloves and carrying a plastic bag. Pickett v. State, 542, S.W.2d 868, 870 (Tex. Crim. App. 1976).
4. The police found the defendant in a ramshackle house with a bag of plumbing fixtures and a pipe wrench. Little v. State, 567 S.W.2d 502, 504 (Tex. Crim. App. 1978).
5. The police detected an acid odor on the defendant and acid splashes on his clothes. McGinnies v. State, 576 S.W.2d 384, 388 (Tex. Crim. App. 1979) (burglary with intent to commit criminal mischief by placing acid on cars).
6. The police found the defendant breaking and entering a building at night. Clark v. State, 543 S.W.2d 125, 127-128 (Tex. Crim. App. 1976) (raises presumption of burglary with intent to commit theft).
In the case before this Court, none of the fact patterns described above
showing circumstantial evidence are present that would tie Appellant to the
burglary of Garcia’s home. Appellant did not have anything in his possession that
was taken from him when he was apprehended. No fingerprints were taken from
the home or from any object at the home. Appellant was not even present in the
vicinity of the home or was associated with known burglars, and yet such presence
or association will not support a conviction for burglary of a habitation. Robinson
v. State, 570 S.W.2d 906, 910 (Tex. Crim. App. 1978); Boudreaux v. State, 757
property from house and recruited defendant to move it).
Nor was Appellant found leaving the scene of the burglary, and even if he
had been so seen, such a fact would not support a conviction for burglary. See
Lucio v. State, 740 S.W.2d 115, 117 (Tex. App. San Antonio 1987, no pet.) (The
defendant’s known involvement with an alleged burglary was leaving the scene in
a motor vehicle at a high rate of speed, and this fact alone did not provide
sufficient evidence to support a conviction for burglary).
And a “mere strong suspicion” that links a defendant to an alleged burglary
does not support a conviction for burglary where the State failed to show that the
property found in the defendant’s possession belonged to the victim. Owens v.
State, 576 S.W.2d 859, 860-861 (Tex. Crim. App. 1979). For instance, although
evidence that a burglary occurred and that the defendant is in possession of
property stolen from the place burglarized may create an inference that the
defendant is guilty of the burglary, no such evidence was presented in this case.
See Rodriguez v. State, 549 S.W.2d 747, 749 (Tex. Crim. App. 1977); Nelson v.
State, 599 S.W.2d 809, 810 (Tex. Crim. App. 1980). Although Appellant does not
concede this issue, at best, in a light most favorable to the jury’s verdict, all the
State presented was a “mere strong suspicion,” but the State presented nothing
more.
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Appellant can present many more examples, but as he argued in Issue One
above, the common theme in those cases and the cases discussed above is that one
or both of the following were proven during trial: (1) the defendant was at the
location of the burglary, or (2) evidence of the burglary or tools of burglary were
found in the defendant’s possession, such as burglary tools or items stolen from the
homes. This was not the case with Appellant. There was no flight by Appellant
from the location of the alleged burglaries or attempted burglary. See Hardesty v.
State, 656 S.W.2d at 77-78 (Flight may be a circumstance indicating guilt.). There
was no unexplained possession by Appellant of recently-stolen property that would
permit an inference that Appellant is the person who committed the
burglary. See Rollerson v. State, 227 S.W.3d at 725. The State simply failed to
present evidence beyond a reasonable doubt that Appellant committed the burglary
of the motorcycle from Garcia’s home.
Conclusion
The evidence is legally insufficient to prove that Appellant committed
Burglary of a Habitation because the State failed to prove that without the effective
consent of the Complaining Witness, Appellant: (1) entered the habitation of the
Complaining Witness with intent to commit a felony, theft, or an assault; or
(2) remained concealed, with intent to commit a felony, theft, or an assault, in the
habitation of the Complaining Witness; or (3) entered the habitation of the
Page 78 of 79
Complaining Witness and committed or attempted to commit a felony, theft, or an
assault. As a result, Appellant asks that this Court reverse the judgment of
conviction and sentence, and render a judgment of acquittal.
Conclusion and Prayer
For the above reasons, Appellant respectfully prays that upon appellate
review, this Court of Appeals reverse the judgment of conviction and sentence and
enter a judgment of acquittal. In the alternative, Appellant prays that this Court of
Appeals reverse the judgment of conviction and sentence and remand this case
back to the trial court for a new trial.
Respectfully submitted, Michael Mowla 603 N. Cedar Ridge Suite 100 Duncanville, Texas 75116 Phone: 972-283-2600 Fax: 972-692-6636 [email protected]
/S/ Michael Mowla By: Michael Mowla
Attorney for Appellant State Bar No. 24048680
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Certificate of Service This is to certify that on December 31, 2013, a true and correct copy of the above and foregoing document was served on Michael Casillas and Lisa Smith of the Dallas County District Attorney, Appellate Division, 133 N. Riverfront Blvd., LB 19, Dallas, Texas 75207-4399, phone (214) 653-3600, fax (214) 653-3643, by email to [email protected] and to [email protected].
/S/ Michael Mowla
Michael Mowla
Certificate of Compliance with Rule 9.4 Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that this document complies with the type-volume limitations because it is computer-generated and does not exceed 15,000 words. Using the word-count feature of Microsoft Word, the undersigned certifies that this document contains 14,626 words in the entire document except in the following sections: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix. This document also complies with the typeface requirements because it has been prepared in a proportionally-spaced typeface using Microsoft Word in 14-point Times New Roman.