ACCEPTED
03-15-00231-CR
7844229
THIRD COURT OF APPEALS
N O . 03-15-00231-CR AUSTIN, TEXAS 11/16/2015 1:54:39 PM
JEFFREY D. KYLE
CLERK
I N T H E C O U R T OF APPEALS
O F T H E T H I R D D I S T R I C T O F TEXAS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
11/16/2015 1:54:39 PM
J O N A T H A N LEE FEHR, JEFFREY D. KYLE Appellant Clerk
T H E STATE O F TEXAS
Appellee
Appeal i n Cause N o . CR06803 i n the 33^^^^ Judicial District Court o f Llano County, Texas
Brief For Appellee
OFFICE O F D I S T R I C T A T T O R N E Y 33^° and 424^^ J U D I C I A L D I S T R I C T S Wiley B. McAfee, District Attorney P. O . Box 725, Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx.us
By: Gary W . Bunyard
Assistant District Attorney State Bar N o . 03353500
A T T O R N E Y FOR APPELLEE
November 16, 2015
Oml Argument Requested
Identity Of The Parties
Trial Court
Honorable J. Allan Garrett 33"'^ Judicial District Burnet County Courthouse Annex (North)
1701 East Polk St., Suite 74 Burnet, T X 78611
State/Appellee
Anthony J. "Tony" Dodson (Trial Counsel)
Assistant District Attorney P. O. Box 725 Llano, Texas 78643 (325) 247-5755 State Bar N o . 05927200
Perry Thomas (Trial Counsel)
First Assistant District Attorney P.O. Box 725 Llano, Texas 78643 (325) 247 - 5755 State Bar N o . 19849120
Gary W . Bunyard (Appellate Counsel)
Assistant District Attorney P. O. Box 725 Llano, Texas 78643 (325) 247-5755 State Bar N o . 03353500 g.bunyard@co.llano.tx.us
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Appellant
Richard M o c k (Trial Counsel)
400 S. M a i n St.
Burnet, Texas 78611 State Bar N o . 14242500
Justin Bradford Smith (Appellate Counsel)
Harrell, Stoebner, & Russel, P.C.
2106 Bird Creek D r .
Temple, T X 76502 State Bar N o . 24072348 justin@templelawoffice.com
Jonathan Lee Fehr (Appellant)
T D C J #01991740 SID #06419655 Choice Moore Transfer U n i t 1700 N . F M 87 B o n h a m , T X 75418
ili
Table Of Contents
Page
Index o f Authorities v Statement o f the Case 1 Statement on Oral Argument 2 Response to Issues Presented 2 Statement o f the Facts 3
Summary o f the Argument - Response to Issue N o . 1 9 There is sufficient evidence i n the record to support the verdict o f the j u r y that Appellant is guilty o f the offense o f Burglary o f a Habitation by direct commission.
Summary o f the Argument - Response to Issue N o . 2 9 There is sufficient evidence i n the record to support the verdict o f the j u r y that Appellant is guilty o f the offense o f Burglary o f a Habitation by party liability.
Argument on Response to Issue N o . 1 and to Issue N o . 2 1. i and 2.1 Principals of Law 10 1.2 and 2.2 Applicable Facts 12 1.3 and 2.3 Discussion and Conclusion 17 Prayer for Relief. 23 Certificate o f Word Count 24 Certificate o f Service 24
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Index Of Authorities
Case Law Page Adelman v. State, 828 S.W.2d 418 (Tex. C r i m . App. 1992) 11,12 Ellard V, State, 509 S.W.2d 622 (Tex. C r i m . App.1974) 12 Geesa v. State, 820 S.W.2d 154, (Tex. C r i m . App. 1991) 10 Griffith V. State, 976 S.W.2d 686 (Tex. A p p . ~ Tyler 1997, pet. refd) 11 Hardage v. State, 552 S.W.2d 837 (Tex. C r i m . App.1977) 12 Hardesty v. State, 656 S.W.2d 73 (Tex. C r i m . App.1983) 12 Hooper v. State, 214 S.W.3d 9 (Tex. C r i m . App. 2007) 10,11
Jackson V. Virginia, 443 U.S. 307, 99 S. Ct. 2781;
61 L . Ed. 2d 560 (1979) 10 Mcintosh V. State, 855 S.W.2d 753 (Tex. App -
Dallas 1993, pet. refd) 11 Matson v. State, 819 S.W.2d 839 (Tex. C r i m . App. 1991) 11,12
Merritt v. State, 368 S.W.3d 516 (Tex. C r i m . App. 2012) 10 Sharp V. State, 707 S.W.2d 611 (Tex. C r i m . App. 1986), cert, denied, 488 U.S. 872,109 S. Ct. 190, 102 L . E d . 2d 159(1988) 11
Walden v. State, 165 Tex. C r i m . R. 196, 305 S.W.2d 354 (Tex. C r i m . App.1957) 12
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Wall V. State, 167 Tex. C r i m . R. 634, 322 S.W.2d 641 (Tex. C r i m . App.1959) 12 Williams V. State, 631 S.W.2d 171 (Tex. C r i m . App.1982) 12 Winfrey v. State, 393 S,W.3d 763 (Tex. C r i m . App. 2013) 10
Constitutions None cited
Statutes/Rules Tex. R. App. Proc. Rule 38.1(g) 3
Treatises/Publications None cited
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statement Of The Case Appellant was charged by Indictment w i t h one count o f Burglary o f a Habitation and Committed Theft and w i t h one count o f Burglary o f a Habitation W i t h Intent to C o m m i t Theft. CR Vol. 1 [filed May 19, 2015] Pages 6 - 7 . A t the conclusion o f the evidence i n the Guilt/Innocence phase o f the trial, the Court's Charge instructed the Jury that Burglary o f a Habitation could be committed either by entry and then committing theft or by entry w i t h the intent to commit theft, however, the Application paragraph and the Verdict Form only permitted conviction or acquittal to one charge o f Burglary o f a Habitation. CR V o l . 1 [filed May 19, 2015] Pages 46 - 52. Appellant elected to have the Jury assess punishment. C R Vol. 1 [filed M a y 19, 2015] Page 44. After taking evidence on punishment, the Jury assessed punishment at fifteen (15) years incarceration i n the Institutional Division o f the Texas Department o f Criminal Justice and a fine o f $7,500.00. C R V o l . 1 [filed May 19,2015] Page 57. Following this conviction and sentence. Appellant filed his M o t i o n for N e w Trial. C R Vol. 1 [filed May 19, 2015] Pages 58 - 62. After conducting a hearing on the M o t i o n for N e w Trial, the trial court denied the relief requested. C R Vol. 1 [filed May 19, 2015] Pages 65, 69. Appellant then timely filed his Notice o f Appeal. CR Vol. 1 [filed May 19, 2015] Page 71.
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statement on Oral Argument The undersigned requests Oral Argument. While the undersigned does not believe that Oral Argument w i l l be beneficial for this case for the reason that the issues are straight forward and lack any novel or complex nuances, Appellant has requested Oral Argument. Should the Court believe that Oral Argument w i l l assist the Court i n any way, the undersigned w i l l gladly accommodate the Court.
Response To Issues Presented Response T o Issue One: There is sufficient evidence i n the record to support the verdict o f the j u r y that Appellant is guilty o f the offense o f Burglary o f a Habitation by direct commission.
Response T o Issue T w o : There is sufficient evidence i n the record to support the verdict o f the j u r y that Appellant is guilty o f the offense o f Burglary o f a Habitation by party liability.
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statement Of The Facts Appellant has not properly described the facts o f this case pursuant to Texas Rules o f Appellate Procedure Rule 38.1(g).
A t approximately 5:30 p.m. on October 7,2013, the Complaint came home from work and then left his residence at about 6:00 p.m. without having noticed any sign o f a problem. RR Vol. 4 Page 21. O n October 8, 2013, the Complainant went to the A T M to make a withdrawal and upon completing the transaction noticed that the account balance on the A T M receipt was short $600. RR V o l . 4 Pages 23 - 24. Later that evening the Complainant looked up his bank account from the computer at his girlfriend's house and found an unauthorized check had been cashed. RR Vol. 4 Pages 2 4 - 2 5 . The check number was not w i t h i n the correct sequence w i t h the checks i n the book that the Complainant kept i n his vehicle. RR Vol. 4 Page 24. When the Complainant arrived back at his residence at approximately 10:15 p.m. on October 8, 2013, he immediately observed that his lawnmower and trailer were missing. RR Vol. 4 Page 26. The Complainant entered his residence and observed that his 55" television was missing, various items o f stuff had been gone through, CDs and DVDs were missing, and a stereo and a chain saw was missing as well as his firearms. RR Vol. 4 Page 27. The Complainant also discovered that his two pair o f binoculars and three check books were missing. RR V o l . 4 Page 3 1 . The stolen riding lawn mower had custom w i r i n g to the power take off or P T O . RR Vol. 4 Page 34. Later the stolen lawn mower, the trailer, and the television were recovered by law enforcement. RR Vol. 4 Pages 33, 34; Vol. 5 Page 43.
Once the report was made to the Llano County Sheriffs Office, Lt. Glenn Williams was assigned to conduct the investigation. RR Vol. 5 Pages 3 1 - 3 2 . The Complainant has reported that he suspected his half sister, Brittany Anderson, as having committed the burglary and thefts. RR Vol. 5 Page 32 - 3 3 . A t the time Brittany Anderson was the girlfriend o f Appellant. RR Vol. 5 Page 32. When Lt. Williams arrived at the residence o f Appellant and Brittany Anderson both subjects were present. RR Vol. 5 Pages 38 - 39. When asked i f they knew anything about the burglary and theft o f the television, lawn mower, trailer, and guns both subject denied knowing anything about any o f the items. RR Vol. 5 Pages 39 - 40. Lt. Williams asked for permission to search Appellant's residence and Appellant refused to give consent. RR Vol. 5 Page 42. However, Appellant did give consent for Lt. Williams to search the outside curtilage o f the residence. RR Vol. 5 Page 43. Near the workshop Lt. Williams quickly found the stolen trailer. RR Vol. 5 Pages 43 - 44. The trailer had been partially repainted and all but one location where a V I N was stamped had been obliterated w i t h a welder. RR Vol. 5 Pages 43 - 44. Lt. Williams
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did observe that the paint on the floorboards o f the trailer had knobby tire tracks that were consistent w i t h lawnmower tires. RR Vol. 5 Page 44. Lt. Williams then seized the stolen trailer. RR Vol. 5 Page 48.
Later that same day, Lt. Williams returned w i t h Community Supervision Officer Q u i n n Wilson. RR Vol. 5 Page 49. Because Brittany Anderson was on community supervision and was living at this residence. Officer Wilson was there to conduct a home inspection. RR V o l . 5 Page 49. Once entry was made i n Appellant's residence Lt. Williams discovered the Complainant's stolen television, which Appellant had earlier told Lt. Williams that a television o f that size would be too large for his home, mounted on the wall. RR Vol. 5 Pages 52 - 53. N o t long after this Lt. Williams learned that the lawn mower was i n possession o f a neighbor named Bowen who lived several blocks away from Appellant. RR Vol. 5 Page 57. Mr. Bowen had borrowed the mower from Glen Jolly who had purchased the mower from Appellant. RR Vol. 5 Page 61, 94, 98. Appellant wrote out a bill o f sale to M r . Jolly for this transaction. RR Vol. 5 Page 94; V o l . 9 State's Exhibit 30. About this same time Appellant appeared at the Llano County Sheriffs Office to give Deputy Boyd a paper stating that "Danny" sold Appellant a mower and a trailer. RR V o l . 5 Page 84; Vol. 9 Defense Exhibit 2. Appellant represented to Deputy Boyd that the "Danny" on the receipt was Danny Napolez. RR Vol. 5 Page 86.
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Deputy Boyd also testified that he had accompanied Community Supervision Officer Q u i n n Wilson and Lt. Williams when the search of Appellant's residence occurred. RR Vol. 5 Page 80. Deputy Boyd noted seeing two pair o f binoculars which he later discovered were the same brand as those stolen from the Complainant. RR Vol. 5 Pages 80 - 81.
Danny Napolez testified that he was "chilling" at Appellant's residence when he noticed a flat screen television o n the wall. RR Vol. 5 Page 112. Appellant told Napolez that the television belonged to Brittany. RR Vol. 5 Page 112. A t this time Appellant offered to show Napolez some guns Appellant had hidden under his bed but Napolez declined . RR Vol. 5 Page 112 - 113. Appellant and Brittany invited Napolez to ride over to the Complainant's house w i t h them. RR Vol. 5 Page 113.
Once they arrived at the Complainant's house Brittany told Appellant and Napolez to load up the trailer and mower because it was her's and then Brittany went into the Complainant's house.^ RR Vol. 5 Page 111-114.
^ T h i s w i t n e s s was never a r r e s t e d o r charged as a p a r t y t o any o f t h e o f f e n s e s t o which he t e s t i f i e d .
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Later that same day, Napolez went w i t h Appellant and Brittany to Lowe's . Appellant and Brittany wanted Napolez to endorse a check and try to cash it but Napolez refused because he knew it was a forgery. RR Vol. 5 Pages 116 - 117. A t this point Brittany took the check to the bank teller w i n d o w located i n the outer wall o f the building w i t h Napolez and Appellant waiting i n Appellant's truck. RR Vol. 5 Page 118.
When he was shown the receipt/bill o f sale that Appellant presented to Deputy Boyd, Napolez denied writing out the receipt/bill o f sale. RR Vol. 5 Page 119 - 120.
After the conclusion of the defense case i n chief and as rebuttal. Brook Johanson was called by the State to testify. Ms. Johanson was the bank teller who received and honored the $600 check from Brittany Anderson. RR V o l . 6 Pages 20 - 22. Ms. Johanson is well familiar w i t h both Appellant and Brittany Anderson. RR Vol. 6 Page 22 - 23. Although the check was processed on October 8, 2013, it was actually presented and honored by Ms. Johanson on October 7, 2013.^ RR Vol. 6 Pages 25 - 26. The check was presented at 4:03 p.m. RR Vol. 6 Page 27. Ms.
^ Lowe's i s a l o c a l g r o c e r y s t o r e i n which a branch o f L l a n o N a t i o n a l Bank i s l o c a t e d . I t c o n t a i n s a t e l l e r window i n the e x t e r i o r w a l l o f t h e b u i l d i n g so customers can conduct business w i t h o u t h a v i n g t o e n t e r t h e g r o c e r y s t o r e p o r t i o n o f t h e building.
^ Checks p r e s e n t e d a f t e r 2:00 p.m. a r e not processed until the f o l l o w i n g day. RR V o l . 6 Page 26.
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Johanson also testified that the check appeared to be i n Appellant's handwriting as he has done on other checks. RR Vol. 6 Pages 29 - 30."^ Ms. Johanson also observed Appellant sitting i n his truck i n the parking lot while Brittany Anderson was presenting the check.^ RR V o l . 6 Page 30. The check was on the Complainant's account. RR Vol. 6 Page 35; V o l . 9 Defense Exhibit Seven.
^ A l t h o u g h t h e r e p o r t e r ' s r e c o r d i n d i c a t e s e x a m i n a t i o n on page 29 l i n e 4, on page 30 l i n e 8, and on page 34 l i n e 3 i s made by A p p e l l a n t ' s c o u n s e l , Mr. Mock, t h i s i s an e r r o r i n t h e r e c o r d as t h e e x a m i n a t i o n a t these times was a c t u a l l y made by t h e p r o s e c u t o r , Mr. Dodson.
^ The bank area o f t h e s t o r e has a b u l l e t p r o o f window i n s t a l l e d i n t h e o u t e r w a l l o f t h e b u i l d i n g t h a t customers can use as a walk-up t e l l e r s t a t i o n w i t h o u t h a v i n g t o come i n t o t h e b u i l d i n g . RR V o l . 6 Pages 30 - 33.
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Summary Of The Argument on Response to Issue No. 1 and Issue No. 2
There is sufficient evidence in the record to support the verdict of the jury that Appellant is guilty of the offense of Burglary of a Habitation either by direct commission or by party liability.
While Appellant seeks review o f legal sufficiency i n two independent issues, one on the basis o f direct conduct and the other on the basis o f party liability, the Court's Charge instructed the j u r y that this offense can be committed either as the result o f Appellant's own conduct or on the basis o f party liability and further instructed the j u r y that i f it found Appellant had participated i n the act i n either manner then the j u r y was to find Appellant guilty o f one count. I n as much as a review o f the same evidence is necessary to review each complaint, both issues w i l l be addressed jointly in this brief. The overall task o f the reviewing court is, considering the combined and cumulative force o f all admitted evidence i n the light most favorable to the conviction to determine whether, based on the evidence and reasonable inferences therefrom, could a rational trier o f fact have found each element o f the offense, whether by direct commission or by party liability, beyond a reasonable doubt. I n this instance the answer is yes.
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Argument On Response to Issue No. 1 and Issue No. 2 1,1 and 2,1 Principals of Law When examining the legal sufficiency o f the evidence, the reviewing court considers the combined and cumulative force o f all admitted evidence i n the light most favorable to the conviction to determine whether, based on the evidence and reasonable inferences therefrom, a rational trier o f fact could have found each element o f the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318 - 319; 99 S. Ct. 2781; 61 L. Ed. 2d 560 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. C r i m . App. 2012).
Beyond a reasonable doubt does not require the State to disprove every conceivable alternative to a defendant's guilt. Merritt v. State, 368 S.W.3d 156, 525 (Tex. C r i m . App. 2012); Geesa v. State, 820 S.W.2d 154, 160 - 161 (Tex. C r i m . App. 1991).
Direct evidence and circumstantial evidence are equally probative, and circumstantial evidence alone may be sufficient to uphold a conviction so long as the cumulative force o f all the incriminating circumstances is sufficient to support the conviction. Winfrey v. State, 393 S.W.3d 763, 771 (Tex. C r i m . App. 2013); Hooper V. State, 214 S.W.3d 9,13 (Tex. C r i m . App. 2007).
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The trier o f fact is the exclusive judge o f the credibility and weight o f the evidence and is permitted to draw any reasonable inference, other than inferences based on mere speculation, from the evidence so long as it is supported by the record. Hooper v. State, 214 S.W.3d 9, 16 - 17 (Tex. C r i m . App. 2007).
The j u r y may use common sense and apply common knowledge, observation, and experience gained i n the ordinary affairs o f life when giving effect to the inferences that may reasonably be drawn from the evidence. Sharp v. State, 707 S.W.2d 611, 614 (Tex. C r i m . App. 1986), cert, denied, 488 U.S. 872, 109 S. Ct. 190, 102 L . Ed. 2d 159 (1988); Griffith v. State, 976 S.W.2d 686, 690 (Tex. A p p . - T y l e r 1997, pet. refd). The j u r y is free to believe or disbelieve any witness. Sharp, 707 S.W.2d at 614. The j u r y may resolve conflicts i n the evidence, accept one version o f the facts, disbelieve a party's evidence, and resolve any inconsistencies i n favor o f either party. Mcintosh v. State, 855 S.W.2d 753, 763 (Tex. App - Dallas 1993, pet. refd).
The reviewing court does not resolve any conflict o f fact or assign credibility to the witnesses, as it was the function o f the trier o f fact to do so. Adelman v. State, 828 S.W.2d 418, 421 (Tex. C r i m . App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. C r i m . App. 1991). Instead the duty o f the reviewing court is only to determine i f both the explicit and implicit findings o f the trier o f fact are rational by
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viewing all o f the evidence admitted at trial i n a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. I n so doing, any inconsistencies i n the evidence are resolved i n favor o f the verdict. Matson, 819 S.W.2d at 843.
I f a defendant is found i n possession o f recently stolen property and at the time o f arrest fails to make a reasonable explanation showing his honest acquisition o f the property, the fact fmder may draw an inference o f guilt. Hardesty v. State, 656 S.W.2d 73, 76 (Tex. C r i m . App.1983); Williams v. State, 631 S.W.2d 171 (Tex. C r i m . App.1982); Hardage v. State, 552 S.W.2d 837 (Tex. C r i m . App.1977); Ellard V. State, 509 S.W.2d 622 (Tex. C r i m . App.1974); Wall v. State, 167 Tex. C r i m . R. 634, 322 S.W.2d 641, 643 (Tex. C r i m . App.1959); Walden v. State, 165 Tex. C r i m . R. 196, 305 S.W.2d 354 (Tex. C r i m . App.1957).
1,2 and 2,2 Applicable Facts O n October 7, 2013, at 4:03 p.m. Brittany Anderson presented to Brook Johanson, a bank teller at the branch o f Llano National Bank located at the Lowe's grocery store, a check drawn on the account o f Shane Pope (Complainant) for the amount o f $600.00. RR Vol. 6 Pages 20 - 27, 35; Vol. 9 Defense Exhibit Seven. Ms. Johanson, who is quite familiar w i t h both Brittany Anderson and Appellant, recognized the writing on the check to be that o f Appellant and observed, through
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the teller window, Appellant sitting i n his truck i n the parking lot. RR Vol. 6 Pages 27 - 30.^ This transaction was not authorized by the Complainant. RR Vol. 4 Pages 25 - 26.
At approximately 5:30 p.m. on October 7, 2013, the Complainant arrived at his residence after work without noticing anything unusual or out o f place. RR Vol. 4 Page 21. About 6:00 p.m. the Complainant went to his girlfriend's house to spend the night. RR V o l . 4 Page 21. The Complainant did not return to his residence until approximately 10:30 p.m. on October 8, 2013. RR Vol. 4 Pages 22 - 23. D u r i n g this absence the Complainant discovered that there was a discrepancy w i t h his bank account and that a forged check o f $600 had been debited from his account. RR V o l . 4 Pages 23 - 2 5 . The number printed on the forged check came from a book that the Complainant had stored i n his bedroom closet. RR Vol. 4 Pages 24 - 25.
U p o n arriving at his residence on October 8,2013, the Complainant immediately noticed that his riding lawnmower and a borrowed trailer were missing. RR
^ Danny Napolez t e s t i f i e d t h a t he went w i t h A p p e l l a n t and Anderson t o t h e bank and t h a t he r e f u s e d Anderson's r e q u e s t t h a t Napolez s i g n t h e check and t h a t he w a i t e d i n t h e t r u c k w i t h A p p e l l a n t and t h a t t h i s o c c u r r e d l a t e a f t e r n o o n on October 8, 2013. RR V o l . 5 Pages 116 - 120.
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V o l . 4 Pages 26, 32.^ The Complainant found no signs o f forced entry into the residence. RR Vol. 4 Pages 26 - 27. Inspecting the interior o f the residence the Complainant discovered that his 55" television had been removed from the wall mount and was missing, stuff had been gone through, CDs, DVDs, a stereo, and guns were missing. RR Vol. 4 Pages 27 - 29. Also taken were two binoculars and a chain saw. RR Vol. 4 Page 31 - 32.
Once recovered by the Sheriffs Office, the Complainant was able to identify the 55" television, the riding lawn mower, and the trailer as being items stolen from him. RR Vol. 4 Pages 3 3 - 3 4 .
Appellant and Brittany Anderson were immediately developed as suspects by suspicions o f the Complainant. RR Vol. 5 Page 32. Officials from the Sheriffs Office went to Appellant's residence on October 9, 2013. RR V o l . 5 Page 36. Brittany Anderson answered the door (RR Vol. 5 Page 38) and Appellant walked up from the shop area (RR Vol. 5 Page 39). Both denied any knowledge o f the burglary or about the television, the trailer, the lawn mower, and the guns. RR Vol. 5 Pages 39 - 40. Appellant denied permission for the deputies to search Appellant's residence but granted permission for a search o f the curtilage and remaining areas
^ The t r a i l e r was r e g i s t e r e d t o t h e Complainant's employer, R i c h a r d F a i n . RR V o l . 5 Page 48.
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around the residence. RR Vol. 5 Pages 42 - 43. Deputies quickly located the stolen trailer next to the shop. RR V o l . 5 Page 43. The trailer had been partially repainted and places where the Vehicle Identification Number had been stamped into the metal frame had be obliterated w i t h a welding rod. RR V o l . 5 Pages 43 - 44. The V I N on the identification plate located on the tongue o f the trailer had not been tampered w i t h and confirmed that this was the stolen trailer. RR V o l . 5 Pages 43, 48.
Later, on the same day still being October 9, 2013, deputies returned to Appellant's residence accompanied by the local probation officer, Q u i n n Wilson. RR Vol, 5 Page 49. M r . Wilson was present to conduct a home inspection because Brittany Anderson was on probation at the time. RR Vol. 5 Page 49. M r . Wilson explained that the deputies w i l l be accompanying M r . Wilson on the home inspection for safety reasons. RR Vol. 5 Page 171. U p o n entering the residence deputies immediately found the stolen television mounted on the wall. RR V o l . 5 Pages 52 - 53, 56.^ W h e n asked about this T V Appellant stated it belonged to his sister. RR V o l . 5 Page 53. Deputy Boyd observed two binoculars that he later
^ There was some i n i t i a l c o n f u s i o n as t o whether t h i s TV was t h e a 42" o r a 55" due t o i n a c c u r a t e measuring. RR V o l . 5 Pages 90-91.
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learned were o f the same brand and type as those reported stolen by the Complainant but they were not seized. RR Vol. 5 Page 8 0 - 8 1 .
Additional investigation quickly discovered the stolen lawn mower had been purchased by Glen Jolly from Appellant. RR Vol. 5 Pages 56 - 61, 94. Appellant gave M r . Jolly a Bill o f Sale for the lawn mower. RR Vol. 5 Pages 94 - 95; Vol. 9 State's Exhibit 30. Later, still on October 9,2013, Appellant arrived at the Sheriffs Office and gave Deputy Boyd what Appellant represented to be a Bill o f Sale for the lawn mower and trailer showing Appellant purchased the lawn mower and trailer from Danny Napolez. RR Vol. 5 Pages 83 - 85; Vol. 9 Defendant's Exhibit 2.
Danny Napolez testified that he went over to Appellant's house to "chill" and upon arrival observed a large flat screen television mounted on the wall that he had not seen before. RR Vol. 5 Page 112. Napolez asked Appellant where he got the T V from and Appellant replied that it was his sister's. RR Vol. 5 Page 112. While "chilling" at Appellant's residence. Appellant told Napolez that he had some guns under his bed and wanted to show them to Napolez but Napolez declined the invitation. RR V o l . 5 Pages 112 - 113. T h e n Napolez rode over to the Complainant's residence w i t h Appellant and Brittany Anderson. RR Vol. 5 Page 111. Brittany told Appellant and Napolez to grab the lawn mower because it was hers and then she went inside the residence. RR Vol. 5 Pages 111-112. Several
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months later Appellant gave Napolez a stereo of the same brand and model as that stolen from the Complainant. RR Vol. 4 Page 27; Vol. 5 Pages 113 - 114. U p o n returning from Shane Pope's residence w i t h the trailer and lawn mower, the trio went to Lowe's grocery store to cash a check. RR Vol. 5 Page 115 - 116. Appellant and Brittany asked Napolez to sign the check but he refused because it was not Brittany's check. RR Vol. 5 Page 116. Brittany took the check to the walk-up w i n d o w and cashed the check.^ When shown Defendant's Exhibit 2, the Bill o f Sale that Appellant presented to Deputy Boyd as proof o f purchase of the lawn mower, Napolez denied writing or signing the document. RR Vol. 5 Pages 119 - 120. Napolez admitted that he had a drug problem and was high on meth on the day he was describing. RR Vol. 5 Pages 114, 141.
IJ and 2.3 Discussion and Conclusion Based on the evidence before this jury, from the time line established, a rational j u r y could have concluded that there were up to three unlawful entries to the residence of Shane Pope, one of which resulted i n theft of the television which is the entry that is the basis of the charge contained i n the Indictment.
^ The walk-up window i s p a r t o f the L l a n o N a t i o n a l Bank branch l o c a t e d w i t h i n the g r o c e r y s t o r e .
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A rational j u r y could find that one entry occurred prior to 4:03 p.m. on October 7, 2013, during which three books o f checks were taken from M r . Pope's bedroom closet. Based on the testimony o f Brooke Johansen a rational j u r y could have found that one o f these stolen checks was passed at 4:03 p.m. by Brittany Anderson w i t h Appellant waiting i n the pickup i n the parking lot. The bank teller recognized the writing on the check to likely be that o f Appellant.
A rational j u r y could also have determined that the next entry would be between 6:00 p.m. on October 7,2013 and an undetermined time on October 8,2013, which is based on the testimony o f Shane Pope that he did not notice anything out o f place between 5:30 p.m. and 6:00 p.m. on October 7, 2013, and at least a portion o f the testimony o f Danny Napolez that he arrived at Appellant's residence on October 8, 2013, and that this be the entry during which at least M r . Pope's 55" television was taken and likely the CDs, DVDs, stereo, binoculars, chain saw, and guns were taken at this time as well.
A rational j u r y could have found that the third entry, based on at least part o f the testimony o f Danny Napolez, would have been on October 8, 2013, before 10:30 p.m., being the entry made by Brittany Anderson after she instructed Appellant and Napolez to grab the lawn mower and they hooked the trailer w i t h the lawn mower
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sitting on the floorboards to Appellant's pickup. What, i f anything, was taken from inside the residence by Brittany Anderson at this time is unknown.
Other factors which a rational j u r y could have taken into consideration i n making these findings are:
1. O n the day following the theft. Appellant told officers that he knew nothing about a trailer yet the officers, just a few minutes later, found the stolen trailer at Appellant's shop and the trailer was i n the process o f being repainted and all but one o f the V I N numbers had already been obliterated w i t h a welding rod. Later that same day Appellant presented Deputy Boyd a bill o f sale for the trailer purporting to have purchased it from Danny Napolez who, at trial, testified that he did not write or sign that bill o f sale.
2. O n the day following the theft. Appellant also denied to officers knowing anything about a 55" television and even stated that a television o f that size would not fit i n his residence. Appellant refused to allow officers to search his residence. However, later the same day, when Brittany Anderson's probation officer arrived w i t h the officers to conduct a home inspection, officers immediately found the stolen television mounted to the wall o f Appellant's residence. Appellant then told the officers that the T V belonged
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to Brittany Anderson. Brittany Anderson did not testify at trial to either confirm or deny this.
3. O n the day following the theft, officers located the stolen lawn mower. It had been purchased by Glen Jolly from Appellant and Appellant gave M r .
Jolly a bill o f sale for the mower. Later that same day Appellant presented a bill o f sale to Deputy Boyd for the lawn mower purporting to have purchased it from Danny Napolez who testified at trial that he did not write or sign that bill o f sale.
4. O n October 8, 2013, the day after or the day o f the theft o f the guns from the residence o f Shane Pope, Appellant told Danny Napolez he had a number o f guns that Appellant wanted to show to Napolez the description o f one match the description o f one o f the guns stolen from the residence o f Shane Pope.
I n order to determine that Appellant committed this offense either directly or as a party w i t h another, a rational j u r y could have considered the following:
1. Appellant drove Brittany Anderson to the bank on October 7, 2013 to cash a check w h i c h had been stolen from the bedroom closet i n Shane Pope's residence. According to the bank teller, she is well acquainted w i t h Appellant and his handwriting and it was her opinion that Appellant was the author o f
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the check. From this a rational j u r y could find that Appellant himself took the check books from Shane's residence or that he did so acting w i t h Brittany. 2. The stolen television was mounted to the wall o f Appellant's residence the day after the theft and Appellant gave officers conflicting explanations, first not knowing anything about it and stating that a T V o f that size could not fit i n his small travel trailer residence and second, once it was discovered, that it belonged to Brittany. A rational jury, based on common, every day experiences, could have inferred that such a television was too bulky and too heavy for most women, and many men, to remove from a wall, carry, and mount on another wall without assistance. From all o f this information combined a rational j u r y could find that either Appellant himself took the television from Shane's residence or that he did so acting w i t h Brittany. 3. Appellant was found i n possession o f the stolen trailer the day after the theft, and was also found to have just sold the stolen mower after having told officers he knew nothing about either the trailer or the mower. As soon as officers located the stolen trailer and mower and immediately determined a link to Appellant, Appellant presented officers w i t h a hand written bill o f sale about which he had previously said nothing. Danny Napolez testified that Appellant drove Napolez and Brittany to Shane's residence at which time
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Brittany instructed Appellant to get the mower and then went into Shane's house. Danny Napolez also testified that he did not write or sign the bill o f sale Appellant gave to officers. From this testimony a rational j u r y could have found that Appellant and Brittany worked together as part o f any or all o f the prior burglaries o f Shane Pope's residence.
While there is clearly a conflict i n the evidence as to the date on which the forged check was presented to Llano National Bank, it is obvious that the j u r y resolved this conflict i n favor o f conviction, choosing to believe part o f the testimony o f Danny Napolez while disbelieving part o f the testimony.
Another point to note is that a j u r y can make a reasonable inference o f guilt out o f the unexplained recent possession o f stolen property. While the trial court did not instruct the j u r y on this point, under these facts a rational j u r y could easily conclude that Appellant's recent possession o f a large portion o f the items stolen from inside and outside o f the residence o f Shane Pope coupled w i t h a denial o f knowledge o f where the stolen items would be and then, after getting caught w i t h many o f the items, making explanations which turned out to be false, was sufficient to find Appellant Guilty beyond a reasonable doubt.
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For these reasons the relief requested by Appellant i n his Issue N o . 1 and his Issue N o . 2 must be denied and the trial court's judgment o f conviction and sentence be affirmed.
PRAYER FOR R E L I E F
WHEREFORE, PREMISES C O N S I D E R E D , Appellee prays the Court deny Appellant's appeal and affirm the judgment o f the trial court.
Respectfully submitted.
OFFICE O F D I S T R I C T A T T O R N E Y 33^^ and 424^^ J U D I C I A L D I S T R I C T S Wiley B. McAfee, District Attorney P. O. Box 725
Llano, Texas 78643
Telephone Telecopier (325) 247-5755 (325) 247-5274
^ary Wf^unyai^
Assistant District Attorney State Bar N o . 03353500
g.bunyard@co.llano.tx.us
A T T O R N E Y FOR APPELLEE
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C E R T I F I C A T E OF WORD C O U N T
This is to certify that the pertinent portion o f this brief contains 5,014 words printed i n Aldine401BT 14 font, including footnotes being in Aldine401BT 12 font, according to the WordPerfect™ X7 word count tool.
Gary W r ^ u n y a
C E R T I F I C A T E OF SERVICE
This is to certify that a true copy o f the above and foregoing instrument, together w i t h this proof o f service hereof, has been forwarded on the 16th day o f October 2015, to Richard Davis, Attorney for Appellant, by email and by EServe.
Assistant District Attorney