fifth court of appeals appellant's brief - tcdla garmon brief.pdf · page 2 of 79 identities...

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

ACCEPTED05-13-00702-CR

FIFTH COURT OF APPEALSDALLAS, TEXAS

12/31/2013 5:20:09 AMLISA MATZ

CLERK

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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

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Roane v. State, 959 S.W.2d 387 (Tex. App. Houston [14th] Dist. 1998, pet. ref.) ........................................................................................................... 42, 72 Robbins v. State, 88 S.W.3d 256 (Tex. Crim. App. 2002) ............................. 33, 34 Robinson v. State, 570 S.W.2d 906 (Tex. Crim. App. 1978) ................................ 75 Robinson v. State, 701 S.W.2d 895 (Tex. Crim. App. 1985) ......................... 59, 60 Robinson v. State, 728 S.W.2d 858 (Tex. App. Austin 1987, no pet.) .................. 49 Robledo v. State, 480 S.W.2d 401 (Tex. Crim. App. 1972) ........................... 59, 60 Robles v. State, 664 S.W.2d 91 (Tex. Crim. App. 1984) ....................................... 73 Rodriguez v. State, 549 S.W.2d 747 (Tex. Crim. App. 1977) ............................... 76 Rogers v. State, 991 S.W.2d 263 (Tex. Crim. App. 1999) .................................... 66 Rollerson v. State, 227 S.W.3d 718 (Tex. Crim. App. 2007) ......................... 46, 77 Simmons v. State, 457 S.W.2d 570 (Tex. Crim. App. 1970) ................................. 54 Siqueiros v. State, 685 S.W.2d 68 (Tex. Crim. App. 1985) .................................. 54 Soffar v. State, 742 S.W.2d 371 (Tex. Crim. App. 1987) ...................................... 33 State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005) ........................... 66, 67 Stearn v. State, 571 S.W.2d 177 (Tex. Crim. App. 1978) .............................. 73, 74 Stringer v. State, 845 S.W.2d 400 (Tex. App. Houston [1st Dist.] 1992, pet. ref.) .................................................................................................................. 60 Tate v. State, 981 S.W.2d 189 (Tex. Crim. App. 1998) ........................................ 47 Templin v. State, 711 S.W.2d 30 (Tex. Crim. App. 1986) ....................... 32, 33, 58 Thompson v. State, 563 S.W.2d 247 (Tex. Crim. App. 1978) ............................... 75

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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.

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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

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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

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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,

130, 151-152, 154, 169, 189-190, 206, 212-213, 218, 230).

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.

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2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)

(opinion on rehearing). A trial court abuses its discretion when it makes an

evidentiary ruling when the court’s decision “lies outside the zone of reasonable

disagreement.” Green v. State, 934 S.W.2d 92, 101-102 (Tex. Crim. App.

1996). When determining whether a trial court’s evidentiary ruling was

an abuse of discretion, this Court should review the ruling in light of

the evidence that was before the court at the time of its ruling. Rangel v. State, 250

S.W.3d 96, 97-98 (Tex. Crim. App. 2008); Hoyos v. State, 982 S.W.2d 419, 422

(Tex. Crim. App. 1998).

A reviewing court may reverse a trial court’s decision for an abuse of

discretion only when it appears that the court applied an erroneous legal standard,

or when no reasonable view of the record could support the trial court’s conclusion

under the correct law and the facts viewed in the light most favorable to its legal

conclusion. See Dubose v. State, 915 S.W.2d 493, 497-498 (Tex. Crim. App.

1996). Even if the reviewing court would have reached a different result, it should

not intercede as long as the trial court’s ruling was within this “zone of reasonable

disagreement.” See Montgomery v. State, 810 S.W.2d at 380-381.

Admissibility of extraneous offenses during the innocence/guilt portion of a trial (in general)

A defendant must be tried on the facts alleged in the indictment and not for a

collateral crime or for being a criminal generally. Templin v. State, 711 S.W.2d

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30, 32-33 (Tex. Crim. App. 1986); see Albrecht vs. State, 486 S.W.2d 97, 100

(Tex. Crim. App. 1972) (“An accused is entitled to be tried on the accusation made

in the state’s pleading and that he should not be tried for some collateral crime or

for being a criminal generally); Soffar v. State, 742 S.W.2d 371, 377 (Tex. Crim.

App. 1987).

However, evidence of crimes or wrongful acts committed by a defendant

may be admitted during the innocence and guilt portion of the trial if these

collateral crimes are shown to be both material and relevant to a contested issue in

the case. Albrecht vs. State, 486 S.W.2d at 100. Evidence is relevant and generally

admissible if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” See Tex. Rule Evid. 401 and 402.

The entry of a plea of “not guilty” is insufficient to make extraneous

offenses relevant -- the defendant must raise an issue as to some matter for which

extraneous offense evidence may be admitted, such as the defendant’s intent.

Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002). This requires that

the defendant raise the issue through the affirmative presentation of defense

evidence, vigorous cross-examination, or other means. Vernon v. State, 841

S.W.2d 407, 411 (Tex. Crim. App. 1992) (In the defendant’s prosecution for

aggravated sexual assault of his minor stepdaughter, relationship evidence of prior

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sexual assaults by defendant against same victim were not relevant to a

noncharacter conformity material issue under Texas Rule of Evidence 404(b)

because the defendant did not present any witnesses or impeach complainant);

Clark v. State, 726 S.W.2d 120, 122-123 (Tex. Crim. App. 1986) (Evidence of an

extraneous offense involving the defendant and a third party erroneously admitted

on issue of defendant’s intent because defendant did not vigorously undermine the

State’s case on intent issue); Robbins v. State, 88 S.W.3d at 261 (The defense’s

cross-examination of State witnesses on the issue of Sudden Infant Death

Syndrome or possibility that infant’s death may have been caused by incorrectly

performed CPR efforts to save the victim’s life opened the door to extraneous

evidence of the child’s injuries while the child was in the defendant’s care).

Evidence of collateral crimes or wrongful acts is not admissible against the

defendant to prove the defendant’s character in order to show that he or she acted

in conformity with that character. Tex. Rule Evid. 404(b). Such evidence of

crimes or wrongful acts are admissible to show proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake or accident, or

flight. Tex. Rule Evid. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex.

Crim. App. 2004); Whittington v. State, 580 S.W.2d 845, 846-847 (Tex. Crim.

App. 1979).

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For a trial court to properly admit evidence of an extraneous offense during

the innocence/guilt portion of a case, the offense must be somewhat similar to the

currently-charged offense. Relevance of the extraneous offense depends primarily

on its similarity to the currently charged offense. United States v. Beechum, 582

F.2d 898, 911 (5th Cir. 1978). Further, the degree of similarity required for

admission depends upon the purpose for which the extraneous offense is being

admitted. Id. at 911. This similarity pertains to the defendant himself, not to

similarities that arise from the type of offense committed. Martin v. State, 722

S.W.2d 172, 174 (Tex. App. Beaumont 1986, pet. ref.) (Extraneous evidence

admitted where it was alleged that the defendant grabbed victims from behind and

tried to remove their clothing). Such evidence does not pertain to distinctive

similarities as to the currently charged offense, but similarities as to the victims,

locations, and times of offenses. Id. Further, more similarity is required to prove

identity than to prove intent. Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim.

App. 1987).

When viewed objectively, if a reviewing court believes that the “relevant

criteria” leads it to believe that the danger of unfair prejudice substantially

outweighed the probative value of the evidence. Montgomery v. State, 810 S.W.2d

at 392-393. Relevant criteria includes: (1) the ultimate issue was not seriously

contested by the defendant; (2) the state had other convincing evidence to establish

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the ultimate issue to which the extraneous evidence was relevant; (3) the probative

value of the misconduct evidence was not particularly compelling; and (4) the

misconduct was of such a nature that a jury instruction to disregard it for any but

the proffered purpose would not likely have been efficacious. Id.

As the proponent of the evidence of the extraneous offenses, the State has

the burden of showing admissibility. See Rankin v. State, 974 S.W.2d 707, 719

(Tex. Crim. App. 1998) (opinion on rehearing). As the following arguments will

show, the State failed to meet its burden.

This issue is preserved for appellate review

As to the issue of the evidence of the evading arrest from 2004, the trial

court overruled Appellant’s objections, agreeing that although 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). Appellant

requested a running objecting regarding the 2004 case and the alleged extraneous

cases, 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,

130, 151-152, 154, 169, 189-190, 206, 212-213, 218, 230).

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The trial court erred and abused its discretion by admitting evidence of the alleged extraneous offenses because the State

failed to prove beyond a reasonable doubt that Appellant actually committed the alleged extraneous offenses

Before Appellant goes through each of the exceptions to the prohibition

against presenting evidence of an extraneous offense during the innocence/guild

portion of the trial, Appellant points out that the trial court erred and abused its

discretion by admitting evidence of the alleged extraneous offenses because the

State failed to prove beyond a reasonable doubt that Appellant actually committed

the alleged extraneous offenses. As a result, it does not matter under which

exception the State tried to admit the alleged extraneous offenses.

“Texas law has for years required a charge instructing the jury that, before

they can consider evidence of extraneous bad acts, they must find beyond a

reasonable doubt that the defendant committed those acts.” George v. State, 890

S.W.2d 73, 75 (Tex. Crim. App. 1994) (The standard for admissibility of an

extraneous offense is proof beyond a reasonable doubt that the defendant

committed the offense). In Thompson v. State, 615 S.W.2d 760, 761 (Tex. Crim.

App. 1981), the Court of Criminal Appeals held that “even though evidence of an

extraneous offense may be relevant to the instant proceeding, such evidence should

not be admitted unless the commission of the other crime is clearly proved and the

accused is shown to be the perpetrator.” (emphasis added);

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“It is settled law that when evidence of collateral crimes is introduced for

one of the various purposes for which such evidence becomes admissible, the jury

should be instructed that they cannot consider against the defendant such collateral

crimes, unless it has been shown to their satisfaction that the accused is guilty

thereof.” Lankford v. State, 248 S.W. 389, 389-390 (Tex. Crim. App. 1923);

Ernster v. State, 308 S.W.2d 33, 34-35 (Tex. Crim. App. 1957); Vaughn v.

State, 118 S.W.2d 312, 313 (1938); Harrell v. State, 884 S.W.2d 154, 157 (Tex.

Crim. App. 1994) (The trial court must determine beyond a reasonable doubt that

the defendant committed an extraneous offense before evidence of that offense is

admitted at trial for any purpose); Harris v. State, 790 S.W.2d 568, 602-603 (Tex.

Crim. App. 1990) (Evidence that a codefendant had stolen the vehicle the

defendant drove and that the defendant and others had committed another robbery

on the night of the murder was inadmissible because the State failed to show the

defendant’s participation and knowledge); Phillips v. State, 659 S.W.2d 415, 418

(Tex. Crim. App. 1983) (The admission of evidence of the extraneous offense of

making anonymous threats to the victim two days after the robbery without any

showing of the defendant’s connection to the threats was reversible error, and the

probative value of the threats was outweighed by their prejudicial value).

In Govan v. State, 671 S.W.2d 660, 663 (Tex. App. Houston [1st Dist.]

1984), the court held that evidence of an extraneous offense is never admissible

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unless proof is offered that the defendant committed it [citing Tippins v. State, 530

S.W.2d 110 (Tex. Crim. App. 1975)]. If evidence of an extraneous offense is

admissible under one of the several exceptions, the offense must be proved beyond

a reasonable doubt, and it must be shown that the defendant was the actual

perpetrator. Govan v. State, 671 S.W.2d at 663, citing Fentis v. State, 528 S.W.2d

590 (Tex. Crim. App. 1975). The Govan court thus held that it was reversible error

to allow a detective to testify that there had been numerous robberies with similar

features as the one on trial and that they stopped with the arrest of the appellant

and his brother. Id.

In the case before this Court, there was insufficient evidence to connect

Appellant to any of the four extraneous offenses that was allowed by the trial court

to be presented to the jury. (RR2, 10-13, RR4, 3-27). In each of the offenses, the

alleged victim placed a motorcycle for sale on Craigslist. (RR2, 10-13, RR4, 3-

27). A person called using a phone number identified with Appellant to inquire

about the motorcycle. (RR2, 10-13, RR4, 3-27). With exception of the Grand

Prairie alleged extraneous act, holes were then cut in the garage door of the homes

and the only item stolen was the motorcycle, except in the Coppell case, the

motorcycle was not stolen. (RR2, 10-13, RR4, 3-27).

But as Appellant objected and argued, the only link to him is a phone call

from a certain phone number. (RR2, 14). There is no evidence that Appellant was

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ever present near or inside the homes. (RR2, 14). No fingerprints belonging to

Appellant were found in or near the homes. (RR4, 3-27). And a search conducted

on Appellant’s home pursuant to a search warrant yielded no stolen property or

cutting tools. (RR2, 10-13, RR4, 3-27). None of the stolen property was

recovered. (RR2, 10-13, RR4, 3-27). Appellant continuously 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).

Appellant contends that it is clear that he would have not been convicted of

any of the alleged extraneous offenses. The fact that at the time of trial the State

had not charged Appellant with any of the other offenses supports Appellant’s

contention.

This issue of the State’s failure to prove beyond a reasonable doubt that

Appellant actually committed any of the four alleged extraneous offenses

ultimately is one of legal sufficiency. That is, whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt,”

and specifically whether under the Jackson v. Virginia standard, the State could

have proved beyond a reasonable that Appellant committed any of the alleged

extraneous offenses. See 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,

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323 S.W.3d 893, 912 (Tex. Crim. App. 2010). As the following analysis will

show, the answer to this question is “no.”

In an indictment for Burglary of a Habitation or Attempted Burglary of a

Habitation, the State need not specifically allege the elements of the offense

attempted. Young v. State, 675 S.W.2d 770, 771 (Tex. Crim. App. 1984). In other

words, the State need not allege that the defendant attempted entry with the intent

to commit a particular felony or theft. Id.; see Epps v. State, 811 S.W.2d 237, 243

(Tex. App. Dallas 1991, no pet.). But at trial, the State must prove that the

defendant attempted to enter the habitation with the intent to commit a felony,

theft, or an assault. See LaPoint v. State, 750 S.W.2d 180, 182 (Tex. Crim. App.

1986). The trier of fact must infer intent or the lack of intent from the

circumstances. See Moreno v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986).

To support a conviction for burglary of a habitation, the State must prove

beyond a reasonable doubt that the defendant: (1) entered a habitation or building

or any portion of a building not then open to the public, without the effective

consent of the owner, with an intent to commit a felony or theft; or (2) remained

concealed in a habitation or building, without the effective consent of the owner,

with an intent to commit a felony or theft; or (3) entered a habitation or building,

without the effective consent of the owner, and committing or attempting to

commit a felony or theft. Tex. Pen. Code § 30.02(a); Albert v. State, 579 S.W.2d

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925, 926 (Tex. Crim. App. 1979). A review of several cases in which the reviewing

court found that the evidence was legally sufficient to prove burglary or intent to

commit burglary will show this Court that the evidence presented to justify the

presentation of the alleged extraneous offenses falls far short of being legally

sufficient to prove beyond a reasonable doubt that Appellant committed the alleged

extraneous offenses.

For instance, in Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011),

the complaining witness actually saw the defendant as he attempted to enter her

home through a window he had just broken. Id. at 746. After the police arrested

the defendant, the defendant told the police two different versions of what

occurred, and both versions differed from what the complaining witness told the

police. Id. at 745. Further, the defendant was unemployed and had a total of one

dollar in his pocket. Id. at 747. The Court of Criminal Appeals concluded that the

“cumulative force of these incriminating circumstances” was legally sufficient to

prove that the defendant attempted to break into the complaining witness’s home

with the intent to commit theft inside the home. Id. at 748.

And then in Roane v. State, 959 S.W.2d 387, 388-389 (Tex. App. Houston

[14th] Dist. 1998, pet. ref.), the State presented evidence that the defendant had

been chipping at the caulking around the window with a knife while wearing latex

gloves. Id. The defendant was caught by a police officer who received a call

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about a suspicious person at a nearby house. Id. When the officer approached the

rear of the home, she heard a loud “chipping noise” that she believed to be

consistent with someone hitting at glass. Id. She saw the defendant chipping at a

window with what was later found to be a knife, the screen from the window the

defendant had been chipping at had been removed and was lying next to the brick

siding of the house, and the defendant was wearing latex gloves. Id. The caulking

along the window had been removed and that the window was cracked. Id. The

owner of the home testified he had never before seen or met the defendant and had

not given him permission to enter his home or backyard. Id. This evidence was

held to be legally sufficient to support the inference that the purpose of his

attempted entrance was to commit theft. Id.

Then in Richardson v. State, 973 S.W.2d 384, 387 (Tex. App. Dallas 1998,

no pet.), a neighbor saw an unfamiliar car backed up into the carport of the home

of the complaining witness, and two men were looking around inside the carport.

Id. at 385. One of the men took an item resembling a lunch box from the vehicle

and returned to the front door of the house. Id. The police arrived and arrested the

defendant, who was also searched based upon a search incident to an arrest. Id.

Inside the left front pocket of the defendant’s pants was a flat blade screwdriver.

Id. the front door of the home had fresh pry marks matching the edge of the

screwdriver found on the defendant. Id. The complaining witness testified that she

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noticed the pry marks on the front door, which were not present when she left that

morning. Id. This Court found that the trier of fact could have reasonably inferred

intent to commit theft from the evidence presented. Id. at 387.

In 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), this Court found the evidence legally sufficient to support the

defendant’s conviction of burglary of habitation because the evidence showed all

of the following: (1) the defendant did not have the victim’s consent to enter his

house; (2) the defendant entered the victim’s house through a broken sliding door;

(3) gasoline was poured inside the house; (4) a fire was started inside the house; (5)

the defendant allowed her son to load items taken from the house into her car and

drove away with her son and the property; and (6) the defendant communicated

with her son before she arrived at the house and she called the house before she

left. Id. at *4-7. Further, an anonymous caller told the police that a white Pontiac

containing stolen items was parked at a certain address, and the police went to the

address and found the car parked in front of the defendant’s residence. Id. at *1-2.

In the back seat of the car were items stolen from the victim’s home. Id.

For additional recent examples, see 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) (Evidence was legally sufficient to prove

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that the defendant committed burglary of a building under Texas Penal Code §

30.02(a)(1) because although evidence of direct entry was not present, the victim

testified that he did not leave his lawn tools outside and that they were inside of

sheds, the defendant was found in possession of the tools and of burglary tools, and

the defendant fled from an officer); 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) (Evidence was legally sufficient to support the

defendant’s conviction of Burglary of a Habitation under Texas Penal Code §

30.02(a)(1) because a witness saw defendant in the victim’s house carrying items

that she knew belonged to the victim, and the victim testified that she had never

met defendant and that he did not have her consent to enter her home or take her

property); 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) (The evidence was legally sufficient to prove Burglary of a Habitation

under Texas Penal Code § 30.02(b) because one witness heard a window-opening

sound and saw someone push the blinds and curtains inward into the house,

another witness saw someone came through the window and crouched in the

kitchen, an officer confirmed that the window appeared to have been forcibly

opened with some kind of prying instrument and he seized a crowbar from

defendant that matched the pry marks on the window, the defendant was seen less

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than one foot away from the window that was pried open, and another witness saw

the defendant rush away from a driveway and steal a nearby vehicle).

Appellant can present many more examples, but the common theme in those

cases and the cases discussed above is that in each case, 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. And

unlike any of the cases discussed above, there was no flight by Appellant from the

location of the alleged burglaries or attempted burglary. See Hardesty v. State, 656

S.W.2d 73, 77-78 (Tex. Crim. App. 1983) (Flight may be a circumstance

indicating guilt.). There was also no unexplained possession by Appellant of

recently-stolen property that would permit an inference that Appellant is the person

who committed the alleged burglaries. See Rollerson v. State, 227 S.W.3d 718, 725

(Tex. Crim. App. 2007). There simply was no evidence supporting the conclusion

that the State presented evidence beyond a reasonable doubt that Appellant

committed the alleged extraneous acts. As a result, trial court erred and abused its

discretion by admitting evidence of the alleged extraneous offenses because the

State failed to prove beyond a reasonable doubt that Appellant actually committed

the alleged extraneous offenses.

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Evidence of the extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon motive

First, although motive is not a necessary mental element that must be proven

by the State, evidence of motive can be shown through an extraneous offense to

prove that the defendant committed the currently charged offense. McKay v. State,

707 S.W.2d 23 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871 (1986); See

also Crane v. State, 786 S.W.2d 338, 349-50 (Tex. Crim. App. 1990).

Evidence of motive would be present if, for example, Appellant presented a

self-defense claim, and as part of the claim, he attempted to present evidence that a

complaining witness threatened him. See Tate v. State, 981 S.W.2d 189, 191-192

(Tex. Crim. App. 1998). In Tate v. State, the Court of Criminal Appeals held that

evidence of the threat was relevant to the complaining witness’s motive for

attacking him at the time of the death of the complaining witness, which is an

element of self-defense. Id. Therefore, the evidence was not “character evidence”

inadmissible under Texas Rule of Evidence 404. Id.

No apparent evidence of Appellant’s motive was presented in this case, and

Appellant presented no defenses that would show any motive on the part of

Appellant. Further, as Appellant fully discusses above, the State failed to prove

beyond a reasonable doubt that Appellant actually committed the alleged


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Evidence of the extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon opportunity

Second, a defendant may open the door to the admission of evidence of

opportunity if the defense states in the opening statement or asserts during cross

examination that the defendant lacked the opportunity to commit the crime.

Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) (The defense’s

opening statement that the defendant lacked the opportunity to commit the crime

was properly rebutted with evidence of an extraneous offense similar to the

charged offense committed under substantially similar circumstances).

In the case before this Court, Appellant did not open the door to the

admission of evidence showing opportunity. Appellant did not present alibi

testimony, for instance, or present evidence that he would have been unable to

commit any of the alleged extraneous offenses. Further, as Appellant fully

discusses above, the State failed to prove beyond a reasonable doubt that Appellant

actually committed the alleged extraneous offenses.

Evidence of the extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon intent

Third, intent may be a contested issue for purposes of justifying the

admission of extraneous offense evidence if the required intent for the primary

offense cannot be inferred by the act itself or if the defendant presents evidence to

rebut the inference that the required intent existed. Johnson v. State, 932 S.W.2d

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296, 302 (Tex. App. Austin 1996, pet. ref.). Intent is also an issue when the

defendant argues that the charged offense was unintentional or the result of an

accident. Id.; citing Keller v. State, 818 S.W.2d 425, 428-429 (Tex. App. Houston

[1st Dist.] 1991, pet. ref.); See Crossman v. State, 797 S.W.2d 321, 323-324 (Tex.

App. Corpus Christi 1990, no pet.). In Crossman, the defendant is prosecuted for

indecency with a child. Id. at 324. Evidence of extraneous acts with the child

victim were held admissible as relevant to the defendant’s lascivious intent to

gratify his own sexual desire because a greater frequency of touching increases the

likelihood that the defendant harbored guilty intent. Id.

For the purpose of showing knowledge or intent, Under Texas Penal Code §

31.03(c)(1), when a defendant is charged with theft, evidence of an extraneous

offense may be admissible showing that the defendant previously participated in

other transactions similar to the offense on trial is admissible. Such issues of

knowledge or intent are raised simply by a plea of not guilty. Robinson v. State,

728 S.W.2d 858 (Tex. App. Austin 1987, no pet.) (Trial court allowed evidence

that parts of other stolen cars were found in the defendant’s auto salvage yard to

show defendant’s knowledge or intent that the property at issue was stolen).

In the Case before this Court, intent for the primary offense (Irving burglary)

clearly can be inferred by the act itself, as a motorcycle was stolen. Further,

Appellant did not present evidence to rebut the inference that the required intent

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existed. Further, as Appellant fully discusses above, the State failed to prove

beyond a reasonable doubt that Appellant actually committed the alleged


Evidence of the extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon preparation

Fourth, the State may present evidence of an extraneous act to show

preparation on the part of the defendant. Often evidence of preparation is

grounded in the rule of “res gestae” or the “same transaction contextual evidence”

rule, which provides that an extraneous offense may be admitted if the extraneous

offense is so linked together in point of time and circumstances with the current

charged offense that one cannot be fully shown without proving the other. United

States v. Beechum, 582 F.2d at 912; Lott v. State, 695 S.W.2d 237, 240 (Tex. App.

Corpus Christi 1985, pet. ref.) (Evidence of extraneous offense occurring 30

minutes later and at different location was found to be admissible); See Pondexter

v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996). Evidence is the “same

transaction contextual evidence” if the evidence shows that several crimes are

intermixed, or blended with one another, or connected so that they form an

indivisible criminal transaction, and full proof by testimony of any one of them

cannot be given without showing the others. Id. The prejudicial nature of same

transaction contextual evidence rarely renders such evidence inadmissible so long

as it sets the stage for the jury’s comprehension of the whole criminal

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transaction. Miller v. State, 2 S.W.3d 475, 481 (Tex. App. Tyler 1999, no pet.).

Circumstances of the extraneous offense must still be relevant to the prosecution.

Maddox v. State, 682 S.W.2d 563 (Tex. Crim. App. 1985). For example, the State

can admit marijuana found in a truck in which the defendant was arrested for drug

dealing. Burgett v. State, 646 S.W.2d 615 (Tex. App. Fort Worth 1983, pet. ref.).

In the case before this Court, the alleged extraneous offenses are not so

linked together in point of time and circumstances with the current charged offense

that one cannot be fully shown without proving the other. The State could have

attempted to prove the Irving burglary without spraying the jury with alleged

extraneous offenses that it did not prove beyond a reasonable doubt. And further,

again as Appellant fully discusses above, the State failed to prove beyond a


offenses.

Evidence of the extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon a plan or scheme

Fifth, an extraneous offense may be admitted if it shows that a common plan

and systematic course of action (i.e., scheme or modus operandi) on the part of the

defendant. Hammonds v. State, 500 S.W.2d 831 (Tex. Crim. App. 1973); Daggett

v. State, 187 S.W.3d 444, 451 (Tex. Crim. App. 2005). Such an extraneous

offense must be an integral element of a scheme or plan ultimately directed toward

an end that is the same as the one toward which the offense currently charged is

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directed. Mares v. State, 758 S.W.2d 932, 936-937 (Tex. App. El Paso 1988, pet.

ref.) (Extraneous acts by the defendant against other minor victims admitted to

show defendant’s common scheme of exploiting student-teacher relationship).

The problem with the State’s attempt to show plan, scheme, or modus

operandi is that the State failed to prove beyond a reasonable doubt that Appellant

actually committed the alleged extraneous offenses. This issue and conclusion is

fully briefed above and Appellant will not rebrief it here. Although the act of

cutting a hole in garage doors in order to pull the emergency latch may be a unique

way of gaining entrance into the garage, the State failed to prove beyond a

reasonable doubt it was Appellant who actually committed any of these acts.

Evidence of the extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon knowledge

Sixth, the State may offer an extraneous offense when knowledge of some

fact or circumstance is an essential element of the charged offense and it must be

proven inferentially. See Arnott v. State, 498 S.W.2d 166, 176-177 (Tex. Crim.

App. 1973) (The defendant’s past heroin sales were held admissible in prosecution

for possession of heroin). Evidence of extraneous offenses showing knowledge

most commonly arise in prosecutions for possession of a controlled substance in

which the State must show that the defendant knew the nature of the substance he

or she possessed. Id. In such a case, the trial court has discretion to admit an

extraneous offense that indicates that the defendant would have such knowledge.

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Rice v. State, 753 S.W.2d 726, 731-732 (Tex. App. Beaumont 1988, pet. ref.)

(Fresh needle marks on the defendant’s arm were held to be relevant to the

possession of a controlled substance that could be injected); See also Mason v.

State, 99 S.W.3d 652, 656-657 (Tex. App. Eastland 2003, pet. ref.).

In the case before this Court, Appellant was not convicted of a drug offense,

and no stolen motorcycles or stolen motorcycles parts were found in his

possession. No burglary tools were found in his possession. And as Appellant

fully discusses above, the State failed to prove beyond a reasonable doubt that

Appellant actually committed the alleged extraneous offenses.

Evidence of the extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon identity

Seventh, evidence of an extraneous offense is admissible if the identity of

the person who committed the current charged offense on trial is at issue and the

extraneous offense is so similar that the State can argue that the extraneous offense

and current offense were committed by the defendant. Messenger v. State, 638

S.W.2d 883, 886 (Tex. Crim. App. 1982); Page v. State, 213 S.W.3d 332, 336

(Tex. Crim. App. 2006); Cobb v. State, 503 S.W.2d 249, 251 (Tex. Crim. App.

1973); Blackmon v. State, 644 S.W.2d 12, 14 (Tex. App. Dallas, 1982); Ford v.

State, 484 S.W.2d 727, 729-730 (Tex. Crim. App. 1972). “Much more is

demanded than the mere repeated commission of crimes of the same class, such as

repeated burglaries or thefts. The device used must be so unusual and distinctive as

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to be like a signature.” Messenger v. State, Id. at 886 (internal citations omitted).

If there is no sufficiently distinctive characteristic, then the relevancy of the

evidence cannot outweigh its prejudicial potential. Ford v. State, 484 S.W.2d at

729-730.

The defendant may inadvertently admit the extraneous offense by

thoroughly cross-examining the State’s only identifying identification witness

during cross-examination. Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App.

1985); Simmons v. State, 457 S.W.2d 570, 571 (Tex. Crim. App. 1970); Ferrell v.

State, 429 S.W.2d 901, 903 (Tex. Crim. App. 1968). But if the defense fails to

properly impeach the State’s only identification witness, or only one of several

witnesses are impeached, evidence of such an extraneous offense is not admissible

to prove identity. Walker v. State, 588 S.W.2d 920, 922 (Tex. Crim. App. 1979);

Redd v. State, 522 S.W.2d 890, 894 (Tex. Crim. App. 1975).

In the case before this Court, all the State showed was the “mere repeated

commission of crimes of the same class, such as repeated burglaries…” And

Appellant did not “inadvertently admit the extraneous offense by thoroughly cross-

examining the State’s only identifying identification witness during cross-

examination. Siqueiros v. State, 685 S.W.2d at 71; Simmons v. State, 457 S.W.2d

at 571; Ferrell v. State, 429 S.W.2d at 903. Appellant cross-examined numerous

State witnesses, and he did not necessary impeach any of them -- Appellant simply

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showed that the State did not present legally sufficient evidence tying him to any

of the alleged extraneous offenses or the presently-charged offense. And again, as

Appellant fully discusses above, the State failed to prove beyond a reasonable

doubt that Appellant actually committed the alleged extraneous offenses.

Evidence of the extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon the

absence of mistake or accident Eight, the State may present evidence of an extraneous offense in order to

show the absence of mistake or accident. Jones v. State, 751 S.W.2d 682, 685-686

(Tex. App. San Antonio 1988, no pet.) (Trial court allowed evidence proving that

the defendant was somehow connected with a large number of life-threatening

events affecting her patients to show that the overdose of the victim was not

accidental). In such situations, the extraneous act must be sufficiently similar in

nature to the currently charged offense so that an inference of improbability of

accident is logical. Morgan v. State, 692 S.W.2d 877, 881 (Tex. Crim. App. 1985).

In the case before this Court, the State did not allege the absence of mistake

or accident. The State did not present evidence showing that it is improbable that

Appellant was wrongly accused in any of the alleged extraneous offenses or the

presently-charged offense. The State in fact attempted to connect Appellant to all

of the alleged extraneous offenses and the presently-charged offense, but did not

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present legally sufficient evidence to prove that Appellant committed any of the

offenses.

Evidence of the extraneous offenses presented to the jury during the innocence/guilt phase were not admissible based upon Appellant’s flight

Finally, a defendant’s flight after the commission of an offense is a

circumstance from which an inference of guilt may be drawn. Whittington v. State,

580 S.W.2d 845, 846-847 (Tex. Crim. App. 1979). To prove flight, the State may

show the pursuit and capture of the defendant and may also present evidence of

any resistance to arrest that occurred when the defendant was arrested. Id. at 846-

847. In this case, no evidence of flight was presented to the trial court.

Admission of Extraneous Offense Did Not Rebut Defense Theory

The State may admit an extraneous offense in rebuttal of a defense theory.

In order to do so, the defendant must be the party to initiate the theory, so the State

cannot cross-examine the defendant, force out a defense theory from the defendant

during the cross-examination, and then present an extraneous offense to rebut the

defense theory. Celeste v. State, 805 S.W.2d 579 (Tex. App. Tyler 1991, no pet.);

Prescott v. State, 744 S.W.2d 128 (Tex. Crim. App. 1988). This rule is conditioned

upon the defendant properly answering cross-examination questions. Therefore, if

the defendant repeatedly gives nonresponsive answers during cross-examination,

the defendant may open the door to the admission of evidence of an extraneous

offense evidence to correct a false impression left by the defendant concerning

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previous misconduct. Mills v. State, 847 S.W.2d 453, 457 (Tex. App. Eastland

1993, pet. ref.). A defendant may also “open the door” to otherwise improper

cross-examination if the defendant leaves a false impression during his direct

examination. Prescott v. State, 744 S.W.2d at 131. The State can then “dispel the

false impression left by the accused as to his past, a subject which is usually an

irrelevant issue, collateral to the case, and thus inadmissible.” Prescott, 744

S.W.2d at 131; See also Hernandez v. State, 897 S.W.2d 488, 495 (Tex. App.

Tyler, 1995, no pet.). The term “false impression” is narrowly applied to situations

where the defendant affirmatively testifies as to past law-abiding behavior or direct

denials of any prior convictions. James v. State, 102 S.W.3d 162, 181 (Tex. App.

Fort Worth 2003, pet. ref.).

In the case before this Court, Appellant did not testify, and did not present

any witnesses on his behalf. Therefore, Appellant did not open the door to the

admission of evidence of the alleged extraneous offenses or leave a false

impression concerning previous misconduct. See Mills v. State, 847 S.W.2d at

457. Nor did Appellant “open the door” to otherwise improper cross-examination

by leaving a false impression during his direct examination. And again, as

Appellant fully discusses above, the State failed to prove beyond a reasonable

doubt that Appellant actually committed the alleged extraneous offenses.

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The 2004 conviction was not for burglary and was too remote to be admissible under Texas Rule of Evidence 404(b)

A reviewing court must consider the remoteness of the prior extraneous act

because remoteness reduces its probative value. Clark v. State, 693 S.W.2d 35, 36-

37 (Tex. App. Houston [1st Dist.] 1985, pet. ref.); Plante v. State, 692 S.W.2d 487,

491 (Tex. Crim. App. 1985). There is no “per se” rule regarding when an

extraneous offense becomes too remote for admission. Templin v. State, 711

S.W.2d at 32-33.

However, as a general rule, the greater the time period between the charged

and extraneous offenses, the greater the likelihood of error in admitting the

evidence of the extraneous offense. See Reyes v. State, 69 S.W.3d 725, 740 (Tex.

App. Corpus Christi 2002); Messenger v. State, 638 S.W.2d at 885 (Court of

Criminal Appeals reversed a conviction where nineteen days elapsed between the

extraneous offense and the offense charged and tried before the trial court),

overruled on other grounds by Almanza v. State, 686 S.W.2d 157, 157 (Tex. Crim.

App. 1984); Bachhofer v. State, 633 S.W.2d 869, 872 (Tex. Crim. App.

1982) (Court reversed the conviction where 52 months elapsed between the

between the extraneous offense and the offense charged and tried before the trial

court); Collazo v. State, 623 S.W.2d 647, 648 (Tex. Crim. App. 1981) (Court of

Criminal Appeals reversed where one year elapsed between the extraneous offense

and the offense charged and tried before the trial court); James v. State, 554

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S.W.2d 680, 683 (Tex. Crim. App. 1977) (Court of Criminal Appeals reversed

where 33 months elapsed between the extraneous offense and the offense charged

and tried before the trial court); Ford v. State, 484 S.W.2d at 731 (Court of

Criminal Appeals reversed where two months elapsed between the extraneous

offense and the offense charged and tried before the trial court); Robledo v. State,

480 S.W.2d 401, 402 (Tex. Crim. App. 1972) (Court of Criminal Appeals reversed

where 51 months elapsed between the extraneous offense and the offense charged

and tried before the trial court); and Ybarra v. State, 401 S.W.2d 608, 609 (Tex.

Crim. App. 1966) (Court of Criminal Appeals held that the unlawful sale of

alcoholic beverages two years prior to and after current charged offense are

inadmissible).

Examples of cases where the offenses were held sufficiently close in time to

be probative include Cantrell v. State, 731 S.W.2d at 90 (Court of Criminal

Appeals allowed evidence of other armed robberies committed 10 months prior to

commission of charged offense); Castillo v. State, 739 S.W.2d 280, 290 (Tex.

Crim. App. 1987) (Court of Criminal Appeals allowed evidence of several

robberies with same characteristics that were committed one month apart);

Robinson v. State, 701 S.W.2d 895, 898 (Tex. Crim. App. 1985) (Court of

Criminal Appeals allowed evidence of unlawful appropriation of property that

occurred six months prior to charged offense); Voelkel v. State, 501 S.W.2d 313,

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315 (Tex. Crim. App. 1973) (Court of Criminal Appeals allowed evidence of

embezzlement that occurred eight years prior to charged offense); and Stringer v.

State, 845 S.W.2d 400, 402 (Tex. App. Houston [1st Dist.] 1992, pet. ref.)

(Reviewing court allowed evidence of admitting evidence of sexual assault that

occurred five years prior to charged offense).

The factors used to measure the probative value of extraneous offense

evidence are: (1) the similarity between the extraneous offense and the offense

charged; (2) the closeness in time of the extraneous offense to the charged offense;

and (3) the availability of alternative sources of proof. See Robinson v. State, 701

S.W.2d at 898-899; Corley v. State, 987 S.W.2d 615, 619 (Tex. App. Austin 1999).

On the other hand, if there are few similarities between the prior extraneous

offense and the current charged offense, an extraneous offense occurring four years

before the current charged offense is too remote to be admissible. Robledo v.

State, 480 S.W.2d at 402.

In Corley v. State, the defendant was convicted in a bench trial of attempted

aggravated kidnapping and attempted aggravated sexual assault. Id. at 617.

During August 1996, late at night, the defendant had followed the victim from a

club in Austin to the victim’s apartment complex, grabbed the victim, threw her on

the ground, shoved a rag soaked with a chemical into the victim’s mouth, and told

the victim that he will choke her in seven seconds if the victim didn’t “shut up.” Id.

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A neighbor ran out with his shotgun, and upon seeing the shotgun, the defendant

fled. Id.

The extraneous act that was admitted during the trial occurred in September

1983, nearly 13 years earlier, and the defendant was convicted for it. Id. The

extraneous offense that was sexual in nature. Id., fn 1. The previous victim

testified that late at night, she left a bar in Dallas where she worked, went to a 7-11

to buy a soft drink, counted her tips in the car, and then drove towards her home in

Arlington. Id. She arrived at her apartment complex and was approached by the

defendant. Id. at 618. The defendant asked the victim where an apartment was

located, and the victim pointed in the direction of the number he was seeking. Id.

When the victim turned back to her vehicle to collect her things, the defendant

grabbed her from behind, put a knife to her throat, and shoved a cloth in her mouth.

Id. The defendant told her not to scream or he would kill her. Id. He dragged her

to a wooded area behind the apartment building, threw her on the ground, got on

top of her, told her he was going to rape her, pulled her pants down and her shirt

up, and proceeded to kiss and fondle her neck, chest, and breasts. Id. The victim

convinced the defendant that he did not need to rape her, and after several hours,

the defendant let the victim go, allowing the victim to go into her apartment and

call the police. Id.

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In Corley v. State, the facts of the 1983 extraneous prior conviction and the

1996 charged offense were very similar in many ways. Both were final

convictions, and the facts of both cases were well-documented. Both involved

victims who left a bar, were followed by the defendant to the apartment complex

where both victims had a rag placed in their mouths, and an attempted sexual

assault occurred in both cases.

The opposite is true of the 2004 conviction. Appellant ?was convicted of

evading arrest with a motor vehicle (the motorcycle) and not with stealing the

motorcycle or burglarizing it from Mantell’s home. (RR4, 39-40). Appellant also

argued that the 2004 case is too remote to be admissible. (RR4, 42). Yet the trial

court overruled Appellant’s objections, allowing evidence of the evading arrest

case 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). However, the

2004 evading arrest case did not go to the present offense because the two offenses

were not even the same.

This Court should also consider whether there were intervening acts of

misconduct between the old extraneous offense and the current charged offense. If

there were no such intervening acts of misconduct, the old offense should not be

admissible. Lang v. State, 698 S.W.2d 735 (Tex. App. El Paso 1985, no pet.);

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Bachhofer v. State, 633 S.W.2d at 872; McDonald v. State, 513 S.W.2d 44, 50-52

(Tex. Crim. App. 1974) (Where there are several intervening acts of similar

misconduct between the presently-charged offense and the older extraneous

offense, the older extraneous offense was admitted). There is no evidence that

Appellant committed any intervening acts of misconduct between the 2004

conviction and the presently-charged and allegedly-committed extraneous

offenses. And even had Appellant’s trial counsel not specifically argued the issue

of remoteness during the trial or make a specific objection as to the remoteness of

the prior extraneous offense, the undersigned appellate counsel may raise

remoteness on appeal. Lewis v. State, 674 S.W.2d 423 (Tex. App. Dallas 1984,

pet. ref.).

Role of the trial court and Texas Rule of Evidence 403

The trial court must determine whether the extraneous offense is relevant to

prove a material issue other than the defendant’s character. Tex. Rule Evid. 402;

Huddleston v. United States, 485 U.S. 681, 686 (1988); Turner v. State, 754

S.W.2d 668, 672 (Tex. Crim. App. 1988). The trial court must also determine

whether such offense serves to make more probable either an elemental fact, an

evidentiary fact that inferentially leads to an elemental fact, or defensive evidence

that undermines an elemental fact. Montgomery v. State, 810 S.W.2d at 390-392.

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If the court admits an extraneous offense during the innocence and guilt

phase of the trial, a limiting instruction that orders the jury to limit consideration of

the evidence to the purpose for which the evidence was admitted should be given

at the time the evidence is admitted. Montgomery v. State, 810 S.W.2d at 388;

Rankin v. State, 974 S.W.2d at 711. The instruction should not be deferred until

the jury charge. Id.

Rule 403 of the Texas Rules of Evidence provides “although relevant,

evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.”

Tex. Rule Evid. 403. When a Rule 403 objection is made and then overruled, the

trial court necessarily conducts a balancing test by considering and overruling the

objection. Parmer v. State, 38 S.W.3d 661, 670 (Tex. App. Austin 2000, pet.

ref.); Howland v. State, 966 S.W.2d 98, 103 (Tex. App. Houston [1st Dist.]

1998), affirmed, 990 S.W.2d 274 (Tex. Crim. App. 1999); Yates v. State, 941

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.

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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.

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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


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.

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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.

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.

State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992).

Although based upon a review of the facts, review of the legal sufficiency of

evidence is a determination of law. Allen v. State, 651 S.W.2d 267, 269-270 (Tex.

Crim. App. 1983). An appellate court must always address challenges to the

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sufficiency of the evidence. Garza v. State, 715 S.W.2d 642, 645 (Tex. Crim. App.

1986). Such a review must be conducted when a legal sufficiency challenge is

raised, even if the conviction must be reversed on other grounds, because a finding

that the evidence is legally insufficient to support the conviction prevents a retrial

under the double jeopardy clause of the Fifth Amendment. Hudson v. United

States, 522 U.S. 93, 98-99 (1997); U.S. Const. Amend. V & XIV; Ortiz v. State,

577 S.W.2d 246, 250 (Tex. Crim. App. 1979); Foster v. State, 635 S.W.2d 710,

717 (Tex. Crim. App. 1982); McFarland v. State, 930 S.W.2d 99, 100 (Tex. Crim.

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

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8676, 2013 WL 3717802; Gomez v. State, 13-13-00084-CR, 2013 Tex. App.

LEXIS 7831, 2013 WL 3326032; Middleton v. State, 14-12-00481-CR, 2013 Tex.

App. LEXIS 6203, 2013 WL 2247393; and Cano v. State, 13-11-00568-CR, 2012

Tex. App. LEXIS 10109, 2012 WL 6061788.

Appellant also presents the following additional arguments and authorities:

When prosecution of Burglary of a Habitation is based upon the commission of

theft, the attempted or completed theft, felony or an assault supplants the need to

prove specific intent accompanying the entry. DeVaughn v. State, 749 S.W.2d 62,

65 (Tex. Crim. App. 1988). The defendant need not actually commit a felony,

theft or an assault to be guilty of burglary. Phillips v. State, 538 S.W.2d 116, 117

(Tex. Crim. App. 1976); Garcia v. State, 571 S.W.2d 896, 899 (Tex. Crim. App.

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

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S.W.2d 139, 145 (Tex. App. Houston [1st Dist.] 1988, pet. ref.) (codefendant took

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

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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.

/S/ Michael Mowla

Michael Mowla

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