ACCEPTED 08-15-00015-CR EIGHTH COURT OF APPEALS 08-15-00015-CR EL PASO, TEXAS 4/20/2015 12:36:08 PM DENISE PACHECO CLERK
NO. 08-15-00015-CR
FILED IN 8th COURT OF APPEALS IN THE EL PASO, TEXAS COURT OF APPEALS 4/20/2015 12:36:08 PM EIGHTH DISTRICT OF TEXAS DENISE PACHECO EL PASO, TEXAS Clerk
TOMMY JAMES LEWIS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
Appealed from the 109th Judicial District Court of Andrews County, Texas Honorable Martin B. Muncy, Judge Presiding
BRIEF OF THE APPELLANT
FIVECOAT & ROGERS, P.L.L.C. Raymond K. Fivecoat State Bar No. 24010024 214 W. Texas Ave., Ste. 811 Midland, Texas 79701 (432) 620-8774 (Telephone) (432) 620-9945 (Facsimile) ray@fivecoatlaw.com Attorney for Appellant TOMMY JAMES LEWIS
ORAL ARGUMENT NOT REQUESTED IDENTIFY OF THE PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.1(a), Appellant TOMMY JAMES LEWIS, certifies that the following is a complete list of the names and addresses of the parties to the final judgment of the trial and their counsel:
APPELLANT TOMMY JAMES LEWIS RAYMOND K. FIVECOAT 6315 Ladera Dr. Fivecoat & Rogers, P.L.L.C. Houston, Texas 77083 214 W. Texas Ave., Ste. 811 Midland, Texas 79701 Appellate Counsel
LANE HAYGOOD Attorney at Law 522 N. Grant Ave. Odessa, Texas 79761 Trial Counsel
APPELLEE STATE OF TEXAS TIM MASON Andrews County District Attorney 121 NW Ave. A Andrews, Texas 79714 Trial/Appellee Counsel
TRIAL COURT JUDGE JUDGE MARTIN B. MUNCY 109th Judicial District Court Andrews County Courthouse 201 N. Main, Rm. 201 Andrews, Texas 79714
i TABLE OF CONTENTS
LIST OF PARTIES AND THEIR COUNSEL..........................................................i
TABLE OF CONTENTS..........................................................................................ii
INDEX OF AUTHORITIES....................................................................................iii
STATEMENT OF THE CASE..............................................................................1-2
ISSUES PRESENTED ON APPEAL.......................................................................3
STATEMENT OF FACTS...................................................................................4-10
SUMMARY OF THE ARGUMENT......................................................................11
ARGUMENT.....................................................................................................12-14
ISSUE ONE: THE TRIAL COURT COMMITTED ERROR IN DENYING APPELLANT THE LESSER-INCLUDED OFFENSE INSTRUCTION OF CRIMINAL TRESPASS.
ISSUE TWO: THE EVIDENCE WAS BOTH LEGALLY AND FACTUALLY INSUFFICIENT TO ESTABLISH THAT APPELLANT COMMITTED THE ACT OF BURGLARY OF A BUILDING – ENTRY WITH COMMISSION OF THEFT.
CONCLUSION.......................................................................................................15
PRAYER.................................................................................................................15
CERTIFICATE OF SERVICE................................................................................16
CERTIFICATE OF COMPLIANCE.......................................................................16
ii INDEX OF AUTHORITIES
Cases:
Brooks v. State, 323 S.W.3d 893 894-894, 899 (Tex. Crim. App. 2010)................................13
Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975, overruled on other grounds by Hall v. State)............9
Hall v. State, 225 S.W.3d 524,535-36 (Tex. Crim. App. 2007)………………....................8
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)..............13
King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)………………………............13
King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995)……………………..............13
Rules and Statutes:
Tex. Crim. Proc. Ann. Art. 37.09...............................................................................9
Tex. Crim. Proc. Ann. Art. §2.05.............................................................................15
Tex. Pen. Code. §30.02........................................................................................8, 14
Tex. Pen. Code. §30.05..............................................................................................9
iii NO. 08-15-00015-CR
STATE OF TEXAS, Appellee.
Appellant, TOMMY JAMES LEWIS, submits his brief. Appellants will be
referred to as “Appellant”, and “Appellee” will be referred to as “State”.
Statement of the Case and Procedural History
On June 5, 2011, Appellant was indicted for the state jail felony offense of
burglary of a building – entry with commission of theft. (CR, Pg. 5). Appellant’s
case was called for trial on the merits before a jury in the 109th Judicial District
Court of Andrews County, Texas on or about January 13, 2015. (RR 2, Pg. 5-6).
On January 13, 2015, after the close of evidence and argument, the jury
returned a guilty verdict, as indicated by the signature of the presiding juror on the
jury charge. (CR, Pg. 21-28).
The punishment phase of this case immediately proceeded before the Trial
Court. (RR 2, Pg. 222). The Trial Court sentenced Appellant to serve two (2) years
in the T.D.C.J. – State Jail Division. (RR 2, Pg. 224). (CR, Pg. 53-56). Appellant
filed his Notice of Appeal in this case. (CR, Pg. 58-59).
1 Issues Presented on Appeal
ISSUE ONE: THE TRIAL COURT COMMITTED ERROR IN DENYING APPELLANT THE LESSER-INCLUDED OFFENSE INSTRUCTION OF CRIMINAL TRESPASS.
ISSUE TWO: THE EVIDENCE WAS BOTH LEGALLY AND FACTUALLY INSUFFICIENT TO ESTABLISH THAT APPELLANT COMMITTED THE ACT OF BURGLARY OF A BUILDING – ENTRY WITH COMMISSION OF THEFT.
2 Statement of Facts
Appellant's case was called for trial on January 13, 2015. (RR 2, Pg. 5-6).
Upon the reading of the indictment, Appellant entered a plea of not guilty. (RR 2,
Pg. 100-101).
As its first witness, the State called Jacqueline Neighbors. (RR 2, Pg. 112).
Ms. Neighbors testified that on the morning of May 11, at approximately 4:00
a.m., she was awake, unable to sleep at her residence in Andrews County, Texas.
(RR 2, Pg. 112-113.)
Ms. Neighbors testified that her dog suddenly began barking so she woke up
her husband to investigate. (RR 2, Pg. 113-114). Ms. Neighbors called the
Sheriff's Department to report a break in (RR 2, Pg. 114). Mrs. Neighbors testified
that she did not see the Appellant, except after he was speaking with her husband.
(RR 2, Pg. 121). Additionally, Mrs. Neighbors did not see the Appellant inside of
the building constituting their game room, nor did she see him step outside of the
door. (RR 2, Pg. 122).
Wayne Waldrop, a patrolman with the City of Andrews Police Department,
testified next in regards to responding to the emergency call at the Neighbor's
residence. (RR 2, Pg. 123-124). Waldrop testified that upon arrival he attempted
to go into the backyard because a woman was shouting about a man pinned under
the air conditioner, but the officer did not locate anyone there. (RR 2, Pg. 125).
3 Waldrop testified that based upon the information he was given by Mr. Neighbors,
he located the Appellant at the Appellant's trailer next door. (RR 2, Pg. 127-128).
Waldrop testified that upon encountering the Appellant, who indicated that he had
been on the Neighbor's property as part of the Neighborhood Watch, and had seen
lights inside of the building prompting him to investigate what was going on. (RR
2, Pg. 132). Waldrop testified that Appellant admitted to being inside of the
building. (RR 2, Pg. 132). Waldrop further testified that he did not find any signs
of foul play on the door, did not dust for fingerprints, or photograph any of the
scene, including the open door to the game room. (RR 2, Pg. 138).
The State then called Andrews County Deputy Sheriff Aaron Villalobos.
(RR 2, Pg. 141). When Villalobos arrived on scene, Villalobos testified he made
contact with the Appellant, who indicated that he had gone across the street
because he had saw some lights in the storage building and thought someone
needed help. (RR 2, Pg. 144). Villalobos further testified that he did not observe
the Appellant on the Neighbor's property, did not dust for fingerprints, photograph
any of the scene, did not observe any damage to any type of lock on the game
room door or conduct any type of investigation other than driving out the scene
(RR 2, Pg. 152).
The State's last witness was Mr. Boyd Neighbors. (RR 2, Pg. 154). Mr.
Neighbors testified that his wife woke him early one morning due to the belief that
4 someone was in their game room and the dog was going ballistic. (RR 2, Pg. 156).
Mr. Neighbors went outside and headed to the game room, assuming someone was
in the building. (RR 2, Pg. 157). As Mr. Neighbors reached for the game room
door, he observed somebody on the patio, who had been crouched down to avoid
the dog. (RR 2, Pg. 157). Upon encountering Appellant, Mr. Neighbors called off
the dog and began to ask Appellant questions. (RR 2, Pg. 158) Appellant told
Neighbors that someone was in his building smoking and indicated he had been in
there inside of the building himself. (RR 2, Pg. 159) When Mr. Neighbors
specifically asked Appellant why he was in the building, Appellant responded that
he saw lights in inside the building and then came up to investigate. (RR 2, Pg.
159). Neighbors further testified earlier in the evening there had been a gathering
of people at his game room consuming alcohol, but he could not recall if he drank
any alcohol at that party that night before he went to bed. (RR 2, Pg. 175). Lastly,
Neighbors testified that nothing had been taken from the game. (RR 2, Pg. 177).
With that, the State rest. (RR 2, Pg. 178). After making a Motion For
Instructed Verdict outside the presence of the jury, which was denied by the Trial
Court, the defense rest. (RR 2, Pg. 187, 194).
After hearing the argument of counsel, the jury went back to deliberate
regarding guilt and innocence. (RR 2, Pg. 216). The jury returned a guilty verdict
against Appellant. (Clerk's Record Pg. 23 24) (RR 2, Pg. 222). After hearing
5 arguments of counsel, the Trial Court sentenced appellant to serve 2 years in the
State Jail Division of the Texas Department of Criminal Justice, probated for 2
years, with a $2,500.00 fine. (RR 2, Pg. 224).
6 Summary of the Argument
Appellant asserts that the Trial Court committed reversible error in its
refusal to grant Appellant’s request for the inclusion of a lesser-included offense
instruction for the offense of criminal trespass in the jury charge.
Further, Appellant asserts that the evidence presented by the State of Texas
was insufficient to support a finding of guilt for the felony offense of burglary of a
building.
7 Arguments and Authorities
ISSUE ONE: THE TRIAL COURT COMMITTED ERROR IN DENYING APPELLANT THE LESSER-INCLUDED OFFENSE INSTRUCTION OF CRIMINAL TRESPASS.
1. Standard of Review
The relevant standard for determining whether or not a lesser-included
offense instruction should be included within a jury charge is the two-part
“cognate-pleadings” approach outlined in Hall. Hall v. State, 225 S.W.3d 524,
535-36 (Tex. Crim. App. 2007).
2. First Step of Hall Analysis
Under Hall, the first step is to compare the elements of the offense as alleged
in the charging instrument with the elements of the potential lesser-included
offense, and apply the provisions of Tex. Crim. Proc. Ann. art. 37.09.
The elements of burglary of a building, as alleged in the indictment, are: (1)
the defendant; (2) on or about May 11, 2014; (3) with the intent to commit theft;
(4) enter a building or a portion of a building; (5) not open to the public; (6)
without the effective consent of the owner. Tex. Pen. Code §30.02.
The Appellant requested a lesser-included offense of criminal trespass. (CR,
Pg. 31-36; RR 2, Pg. 179-192). The elements of criminal trespass are: (1) the
defendant; (2) without the effective consent of the owner; (3) enters or remains on
the property or in the building of another; (4) intentionally, knowingly, or
8 4
recklessly; (5) with notice that entry was forbidden. Tex. Pen. Code §30.05.
Article 37.09 provides that an offense is a lesser-included offense if: (1) it is
established by proof of the same or less than all the facts required to establish
commission of the offense charged or (2) it consists of an attempt to commit the
offense charged or an otherwise included offense. Tex. Crim. Proc. Ann. Art.
37.09. In this case, there is only one element that is different between the indicted
offense, and the requested lesser-included offense of criminal trespass. The
different element is the requirement of proof of “intent to commit theft” as required
in the burglary of a building statute.
In Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975, overruled on
other grounds by Hall), the Court of Criminal Appeals held that criminal trespass
was a lesser-included offense of burglary of a building. Although Hall otherwise
modified the type of test used to determine whether an offense is a lesser-included
offense, it did not overrule the prior holding of Day, such that criminal trespass
still remains a lesser-included offense of burglary of a building.
3. Second Step of Hall Analysis
The second part of the cognate-pleadings approach requires this Court to
determine whether there is evidence that supports giving the instruction to the jury.
It is undisputed in the evidence presented by the State’s own witnesses that
Appellant entered into the game room belonging to victim without permission. A
9 police officer, Sheriff’s Deputy and the victim each testified that the Appellant
admitted to being in the game room. The victim testified as well that Appellant did
not have permission to enter the game room. However, each of these witnesses
further testified as to the Appellant’s stated intent when he entered the game room.
Both officers and the victim testified that, while the Appellant admitted entering
the building, that he did so because he had saw a light and had concerns that
someone was inside the building. There is no testimony given at trial to the
contrary. Instead, the testimony at trial is that the Appellant was “real friendly and
cordial,” and had expressed concerns about his neighbor’s property being tampered
with. (RR 2, Pg. 132, 144, 159, 163). Additionally, the investigation established
that there were no signs of forced entry, burglary tools, fingerprints, or DNA. (RR
2, Pg. 138, 152, 163).
Therefore, there was sufficient evidence that Appellant may have only been
guilty of the lesser charge of criminal trespass. While the Appellant may be
"guilty" of entering into the building without permission, if he had a meritorious
reason for being there, and did not have the intent to commit a theft as alleged,
then he would be guilty only of the lesser charge of criminal trespass. Therefore, it
would be proper under the Hall analysis for the Trial Court to grant the requested
lesser-included instruction.
4. Argument and Analysis
10 First, the evidence in this case clearly supports a possible finding of the
Appellant’s guilt as only to the requested lesser-included offense of criminal
trespass. The evidence sufficiently meets the requirements of the Hall analysis.
Therefore, the trial court erred in denying the requested instruction and this case
should be reversed and remanded for a new trial.
Second, the harm of the denial of this request is clear on the record in this
case. Not only was the evidence insufficient, as well as non-existent, as to the
Appellant’s alleged intent to commit a theft, the jury in this case clearly had
questions and concerns about the Appellant’s culpability for the indicted offense.
Otherwise, there would be no reason for a jury to request statutes on trespass.
(Jury Note: CR, Pg. 44).
The jury had to make an assumption that the Appellant intended to commit
theft in order to convict the Appellant of this charge, since there was no evidence
of such intent to commit a theft, only conjecture and speculation. To the contrary,
the uncontroverted evidence is that the Appellant entered in an effort to investigate
a perceived wrong doing that Appellant thought he observed occurring in the
victim’s game room.
In the event that the jury felt the Appellant had committed wrong doing by
entering the premises without permission, but did not find that Appellant had any
intent to commit theft, the jury could not hold the Appellant responsible for the
11 alleged criminal trespass due to the Trial Court’s denial of the requested instruction
on the lesser included offense. The intent of the jury to find the Appellant guilty of
only the lesser-included offense is best evidenced by the jury’s note when the jury
requested the “relevant statutes of trespassing”. (Jury Note: CR, Pg. 44).
Specifically, the jury felt the Appellant was on the premises without permission,
but questioned the intent element, as shown through their note. Therefore, to hold
the Appellant responsible for the trespass, they had to assume an element not
proven by the State.
For the jury to make such an assumption that is to be upheld on appeal, the
jury charge would need to have included language about presumed facts in
accordance with Tex. Crim. Proc. Ann. Art. §2.05. There is no such language
about presumed facts in the jury charge in this case. As it is improper for the jury
to assume facts not in evidence, the Appellant in this case was convicted on
unsubstantiated evidence, which falls short of the required proof beyond a
reasonable doubt for the element of “with the intent to commit a felony, theft or
assault”.
Therefore, Appellant was convicted of a greater offense solely due to the
Trial Court’s denial of the requested lesser-included offense. Not only did the Trial
Court commit error in its denial of the requested instruction, but the Appellant was
clearly harmed by this error.
12 ISSUE TWO: THE EVIDENCE WAS BOTH LEGALLY AND FACTUALLY INSUFFICIENT TO ESTABLISH THAT APPELLANT COMMITTED THE ACT OF BURGLARY OF A BUILDING – ENTRY WIH COMMISSION OF THEFT.
The relevant standard for judging the sufficiency of the evidence is outlined
by the Texas Court of Criminal Appeals in Brooks v. State, 323 S.W.3d 893 (Tex.
Crim. App. 2010). The Brooks Court adopts the approach outlined in Jackson v.
Virginia1. Specifically, the standard of review requires the appellate court to
review all of the evidence in the light most favorable to the verdict, and then
determine whether or not any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. (Jackson, 443 U.S. 307, 319;
Brooks, 323 S.W. 3d at 899).
Under this standard of review, the jury is the sole judge of the weight and
credibility of the witness testimony. Brooks, 323 S.W.3d at 894-895. As such, an
appellate court must review the evidence at trial to be certain that the jury reached
a rational verdict, without substituting their own judgment for that of the fact
finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). This is the
same standard, whether the evidence is direct or circumstantial evidence. King v.
State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).
1 Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979).
13 Appellant asserts, under this standard, that the evidence presented by the
State of Texas at trial was insufficient to establish that he committed the offense of
Burglary of a Building – Entry with the Commission of Theft.
A person commits the offense of burglary of a building with the intent to
commit theft when someone, with the intent to commit theft, enters a building not
open to the public, without the consent of the owner. Tex. Pen. Code. Ann. §30.02.
2. The State’s Evidence Was Insufficient to Prove Appellant Committed the Act of Burglary of a Building – Entry with Commission of Theft.
Based upon the evidence presented by the State and the defense in this case,
the evidence is clearly insufficient to support a verdict in this case. The evidence
presented by the State lacks the proof beyond a reasonable doubt necessary to
establish that Appellant committed any theft, or intended to commit a theft. The
only evidence beyond a reasonable doubt regarding the theft element is the
testimony of the victim that nothing was stolen. (RR 2, Pg. 177).
As far as the intent to commit theft, there is absolutely no evidence that the
Appellant intended to commit theft. Both officers and the victim testified that,
while the Appellant admitted entering the building, that he did so because he had
saw a light and had concerns that someone was inside the building. There is no
testimony given at trial to the contrary. Instead, the testimony at trial is that the
Appellant was “real friendly and cordial,” and had expressed concerns about his
14 neighbor’s property being tampered with. (RR 2, Pg. 132, 144, 159, 163).
Additionally, the investigation established that there were no signs of forced entry,
burglary tools, fingerprints, or DNA. (RR 2, Pg. 138, 152, 163). Further, the
Appellant was not arrested for being intoxicated or impaired, nor was there any
testimony to that extent by law enforcement.
There is no evidence that the Appellant is ever observed in the building.
There is no evidence of any theft. The only evidence of any intent to commit theft
is that the Appellant was present at night, in a building, without permission.
However, the Jury Charge in this case did not include an instruction about any
presumed fact in accordance with Tex. Crim. Proc. Ann. Art. §2.05, that would
allow for the jury to assume that nighttime entry without permission is done with
the intent to commit theft. Tex. Crim. Proc. Ann. Art. §2.05. In fact, the Jury
Charge defines “With Intent to Commit a Felony, Theft or an Assault” as “[a]
person intends to commit a felony, theft or an assault when the person has the
conscious objective or desire to commit the felony, theft or assault.” (CR, Pg. 49).
Absent this instruction, the jury cannot find Appellant intended to commit a theft
based upon the evidence presented, absent making an assumption, which is not
allowed under the charge.
Clearly, the jury had to make an assumption that the Appellant intended to
commit theft in order to convict the Appellant of this charge, since there was no
15 evidence of such intent to commit, only conjecture and speculation. Also, if the
jury felt the Appellant had committed wrong doing by entering a premises without
permission, but without an intent to commit theft, the jury could not hold the
Appellant responsible for the alleged wrong-doing in any other manner, as the
Court did not provide a lesser-included offense of trespassing in the jury charge.
The intent of the jury is best evidenced by the jury’s note when the jury requested
the “relevant statutes of trespassing”. (Jury Note: CR, Pg. 44). Specifically, the
jury felt the Appellant was on the premises without permission, but questioned the
intent element, as shown through their note. Therefore, to hold the Appellant
responsible for the trespass, they had to assume an element not proven by the State.
Therefore, the evidence presented by the State is wholly insufficient to
support a finding of guilt of the greater offense in this case. No evidence is
provided about the Appellant’s intent to commit a theft, specifically, there is no
evidence outlining or identifying the Appellant’s conscious objectives or desire to
commit a felony or theft or assault. Quite to the contrary, the only evidence as to
his intent is from the State’s witnesses testifying that the Appellant specifically
expressed that his intent was to investigate perceived problems at the victim’s
game room. Absent an instruction in accordance with Tex. Crim. Proc. Ann. Art.
§2.05 that the jury may presume certain facts to be true (i.e. nighttime entry into a
building without permission is per se intent to commit theft absent other evidence),
16 the evidence actually presented by the State at this trial is wholly insufficient to
support a legal verdict of guilt in this case.
The job of the reviewing court is to determine whether or not the jury
reached a rational verdict based upon the evidence it received and the instructions
it was given in the jury charge. Under these circumstances, the verdict is not
reasonable, nor rational, and is clearly against the weight of the actual evidence
presented at trial, especially in light of the jury charge given to the jury in this case.
Conclusion
As set forth above, Appellant was convicted by a jury on evidence legally
insufficient to support any conviction in this case. The net result is that the
Appellant now has been convicted of a felony and has been sentenced to serve two
(2) years in the Texas Department of Criminal Justice – State Jail Division, all
based upon insufficient evidence. Additionally, as a result of this insufficient
verdict, Appellant is subjected to two years of monitoring and compliance with the
terms and conditions of community supervision.
This case should be reversed and rendered due to a lack of evidence to
substantiate guilt in this case as outlined above. In the alternative, this case should
be reversed, and a new trial granted, due to the Trial Court’s failure to properly
instruct the jury in the jury charge about the requested lesser-included offense of
criminal trespass.
17 Prayer
WHEREFORE, PREMISES CONSIDERED, Appellant requests that this
Appellate Court reverse the jury’s verdict, and remand this case to the Trial Court.
Respectfully submitted,
FIVECOAT & ROGERS, P.L.L.C. 214 W. Texas Ave., Ste. 811 Midland, Texas 79701 (432) 620-8774 (Telephone) (432) 620-9945 (Facsimile) ray@fivecoatlaw.com
Raymond K. Fivecoat State Bar No. 24010024 Attorney for Appellant, TOMMY JAMES LEWIS
ORAL ARGUMENT NOT REQUESTED
CERTIFICATE OF SERVICE
I hereby certify that, on this the 20th day of April, 2015, a true and correct copy of the foregoing Brief of the Appellant was forwarded, by first class mail, postage prepaid, to counsel of record, as follows:
Tim Mason Andrews County District Attorney 121 NW Ave. A Andrews, Texas 79714
Raymond K. Fivecoat
18 CERTIFICATE OF COMPLIANCE
I certify that this document was prepared using MS Word and contains 4130 words (counting all parts of the document). The body text of the entire document is in 14 point font, Times New Roman, and the footnote text is in 12 point font, Times New Roman. Said document was converted to pdf format for filing using MS Word.