                                                                                     ACCEPTED
                                                                                 06-15-00054-CR
                                                                      SIXTH COURT OF APPEALS
                                                                            TEXARKANA, TEXAS
                                                                            7/24/2015 1:57:54 PM
                                                                                DEBBIE AUTREY
                                                                                          CLERK
                         NO. 06-15-00054-CR


                       **************
                                                     FILED IN
                                              6th COURT OF APPEALS
                                                TEXARKANA, TEXAS
                   IN THE COURT OF APPEALS    7/24/2015 1:57:54 PM
                                                  DEBBIE AUTREY
              SIXTH APPELLATE DISTRICT OF TEXAS       Clerk


                        TEXARKANA, TEXAS


                           **********


                        TASARIRISHE ALEX,
                                       Appellant
                                  VS.
                       THE STATE OF TEXAS,
                                       Appellee
                           **********



                 Appealed from the 124th District Court
                         Gregg County, Texas
                       Trial Court No. 43,827-B
__________________________________________________________________

                      BRIEF OF APPELLANT
__________________________________________________________________


                                             EBB B. MOBLEY
                                             State Bar # 14238000
                                             Attorney at Law
                                             422 North Center St.-Lower Level
                                             P. O. Box 2309
                                             Longview, TX 75606
                                             Telephone: (903) 757-3331
                                             Facsimile: (903) 753-8289
                                             ebbmob@aol.com
                                             ATTORNEY FOR APPELLANT
                             NO. 06-15-00054-CR



                            TASARIRISHE ALEX,
                                           Appellant
                                      VS.

                           THE STATE OF TEXAS,
                                           Appellee


__________________________________________________________________

               IDENTITY OF PARTIES AND COUNSEL
                      Pursuant to T.R.A.P. 38.1(a)
__________________________________________________________________


Appellant:        TASARIRISHE ALEX                Woodman State Jail
                  Inmate # 1991992                Gatesville, Texas 76528
Appellant's       JEFF JACKSON                    736-A Highway 259 North
trial counsel:    Attorney at Law                 Kilgore, Texas 75662

State's trial     SHANDA PARKER                   101 East Methvin, Suite 333
counsel:          CHRISTOPHER BOTTO               Longview, Texas 75601
                  Assistant District Attorneys

Trial Judge:      ALFONSO CHARLES                 101 East Methvin, Suite 447
                  Presiding Judge                 Longview, Texas 75601

Appellant's        EBB B. MOBLEY                  P. O. Box 2309
counsel on appeal: Attorney at law                Longview, TX 75606

State's counsel   ZAN BROWN                       101 East Methvin, Suite 333
on appeal:        Assistant District Attorney     Longview, Texas 75601




                                  Page 1 of 16
                                            TABLE OF CONTENTS
                                                                                                                           Page

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-10
ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

       Is there sufficient evidence to prove lack of effective consent by the
    named owner to entry to the building, an essential element of the charged
    offense of burglary of a building?

         SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
         ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-15
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16




                                                        Page 2 of 16
                                 INDEX OF AUTHORITIES

Cases

Bell v. State, 326 S.W.3d 716, 720 (Tex.App. - Dallas 2010, pet. dism’d) . . . . . . . . 12
Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . .11,12

Byrd v. State, 336 S.W.3d 242, 251 n. 48 (Tex.Crim.App. 2011) . . . . . . . . . . . . . . . 12

Easley v. State, 319 S.W.2d 325 (Tex.Crim.App. 1959) . . . . . . . . . . . . . . . . . . . . . ..15
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . .12

Jackson v. Virginia, 443 U.S. 307, 319 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . .11,12

Lowery v. State, No. 06-14-00172-CR slip. op. July 14, 2015 . . . . . . . . . . . . . . . . . .15
Roberts v. State, 513 S.W.2d 870 (Tex.Crim.App. 1974) . . . . . . . . . . . . . . . . . . . . . 15
Taylor v. State, 508 S.W.2d 393, 397 (Tex.Crim.App. 1974) . . . . . . . . . . . . . . . . . .15




                                             Page 3 of 16
                           STATEMENT OF THE CASE


        This is an appeal from a conviction for burglary of a building. A jury found the

appellant guilty and assessed her punishment at confinement for two years in a state
jail.



                                ISSUE PRESENTED
        Is there sufficient evidence to prove lack of effective consent by the owner to

entry to the building, an essential element of the charged offense of burglary of a

building.




                                      Page 4 of 16
                             STATEMENT OF FACTS


      The State called seven witnesses in its case in chief.



Angela Valencia
      Angela Valencia testified that she was the night manager at Jack in the Box in

Kilgore on 259. 3 RR 19-20. She said that the night of the burglary she was working
the 5:00 pm to 12:00 am shift. 3 RR 21. She testified that she locked the drive

through window when she shut down the store that night. 3 RR 27. She stated that
the store safe was kept in the office behind the door. 3 RR 28. She said that she

closed and locked both of the two safes on March 9th. 3 RR 29. Ms. Valencia said that
she did not locked the office door that night because the door only locked from the

inside and she did not have a key and she knew that the safes were locked. 3 RR 34.
Ms. Valencia testified while watching the surveillance video that she turned the store
lights off at 1:16. 3 RR 39. While still watching the video she stated that the time

read 1:30 when a woman was climbing through the window. 3 RR 41. She said that
the woman went out the back door. 3 RR 42. She went on to describe the vehicle

leaving as a white SUV. Ms. Valencia testified that when she left the store that night,

no one was there. 3 RR 43.

Officer James McDowell

      Officer McDowell testified the he was a certified peace officer with the Kilgore

Police Department. 3 RR 53. He stated that he was working as a patrol officer the

morning of March 9, 2014. 3 RR 54. He was dispatched to Jack in the Box in
response to a call regarding a possible burglary. He testified that they located a pair


                                     Page 5 of 16
of newer white gloves just inside the entry as well as a rock or cement that appeared

to have been used to break the window. Officer McDowell said that when he went
into the manager’s office the safe was open and the money trays were on the ground.

3 RR 57. He stated that three black money trays were on the floor to the left of the
safe and one was still in the safe with the safe being open. 3 RR 58.          Officer

McDowell testified that he reviewed the security video with manager Francheska

Ward. He said that the first thing he noticed was that the camera’s timestamps weren’t
concurrent with the actual time. 3 RR 68. He said that on the video around 1:30 a.m.

an object comes through the rear window where the drive-through is and he could see

glass shattering. He said that he then saw a person climbing in through the window.
He described the person as a stocky figure in all black clothing, wrapped from head
to toe. He said he observed white gloves on the person’s hands and what appeared to

be a white towel wrapped around the front of the person’s head. He said that the
person proceeded towards the back room area to where the manager’s office was

located. Officer McDowell stated that you could see a large matter of hair, black hair,
sticking out the back. 3 RR 69. He said that the video showed a flicker of light as the

office door opened and closed but it never came on. He said that the video showed the
person in the office for two to three minutes then the office door opened and shut

again and the person exited through the back door. 3 RR 70.

Francheska Ward

      Francheska Ward testified that she was the general manager at Jack in the Box.

3 RR 94. She stated that she was called into the store around 5:45 in the morning on

March 9, 2014 and told that the store had been broken into. She testified that when

she arrived at the store, the two openers were there. The police officers had not


                                     Page 6 of 16
arrived yet. She said that the glass was broken and the safe was open. She stated that

the change was kind of scattered everywhere through the safe. 3 RR 95. Ms. Ward
stated that Latoya Timmons and Juana Chavez were the store openers. Ms. Ward said

that she called the police at that time and helped them with gathering evidence when
they arrived. She testified that she helped them get the video together. 3 RR 96. She

stated that the money out of the safe was missing. She estimated that it was $700-

$800. Ms. Ward stated that she watched the video surveillance and the camera by the
back door showed the glass breaking and a person entering through the window. She

said that the light was off in the office but you could see someone with maybe a cell

phone light putting the code into the safe. 3 RR 97. She said that the parking lot
camera showed the vehicle leaving the parking lot. 3 RR 98. Ms. Ward testified that
she gave the video from the back door camera and parking lot camera to the police

officers, but by the time they requested the video from the office camera, it had already
automatically deleted. 3 RR 99. Ms. Ward stated she believed the person in the video

could be Chaka, a team leader who was let go a month or month and a half before the
incident. 3 RR 100. Chaka is Tasarirshe Alex. 3 RR 101. Ms. Ward stated that she

recognized Ms. Alex’s jacket, body style and hair in the video. She said that Ms. Alex
had an Afro type of ponytail at the time and frequently wore a gray zipper type hoodie

like the person in the video. 3 RR 102. Ms. Ward said that she hired Ms. Alex in

2013 and worked with her for about a year. She said that she personally worked with

Ms. Alex at least three times a week during that year. 3 RR 103. Ms. Ward testified

that Ms. Alex drove a white Envoy and that she was fired about a month to a month

and a half before the incident. 3 RR 104. Ms. Ward stated that she did not know how

to change the safe code at the time and therefore did not change it after Ms. Alex was

fired. 3 RR 105. She stated at the time about six people had the code to the safe –

                                      Page 7 of 16
Latoya Timmons, Valerie Sanchez, Angela Valencia, herself and Ms. Alex. She said

that herself, Angela, Valerie and Latoya were still employed at Jack in the Box at the
time of the incident. According to Ms. Ward, the store had an alarm, but it had been

broken for about a year. She said that there was a lock on the office door. 3 RR 106.
She added that they did not lock the door because they did not have a key and it only

locked from the inside. Ms. Ward said that to lock the safe you have to push it really

hard and then kind of turn it and that it just locks. To open it you have to enter a code
on a push pad. 3 RR 107. While watching the surveillance video, Ms. Ward identified

the vehicle in the parking lot as Ms. Alex’s Envoy. 3 RR 108. She said that she did

not see the perpetrator get into the vehicle and only saw the side view of the vehicle.
She also said that she could not say with certainty that the perpetrator got out of that
vehicle. She did not see the license plate. 3 RR 130.

Cecilia Sanchez

      Ms. Sanchez testified that she worked at Jack in the Box for two years, her last
day being January 30, 2015. She stated that she was a crew member and was familiar

with Ms. Alex. She said that she worked with Ms. Alex for five or six months, about

two or three days a week. 3 RR 135. Ms. Sanchez testified that when she arrived at

work the morning of the break in she saw a lot of glass on the floor and went to the
office where her manager was watching the surveillance video. She said that she

watched a little bit of the video at that time, but not the whole thing. 3 RR 136. She

stated that it was hard to recognize the person in the video because it was hard to see

the face. She said the head was covered with some sort of cloth and she could only
see from the nose down and a silhouette of the body. She stated that it kind of looked

like Ms. Alex’s body shape. 3 RR 137.


                                      Page 8 of 16
Maria Juana Chavez

      Ms. Chavez testified that she worked in the kitchen at Jack in the Box and was

working on the morning of March 9, 2014. 3 RR 152. She stated that she arrived at
work the morning of the 9th at 5:30 a.m. She said that she and LaToya arrived at the

restaurant to open at the same time. They walked in and saw that the window was
broken in the back. She said they went right back outside. 3 RR 152. Ms. Chavez

said that LaToya called the police. They wanted outside until the police arrived. She

went on to testify that Ms. Ward showed her the surveillance video. Ms. Chavez said
that the person in the video looked like a woman. 3 RR 153. Ms. Chavez testified that
she worked with Ms. Alex two to three times per week but that she was not familiar

with Ms. Alex. 3 RR 154.

Luciana Alvarez

      Luciana Alvarez testified that she started working at the Jack in the Box in

Kilgore in 2011. 3 RR 156. She worked there up until the end of 2014. She stated

that she worked with Ms. Alex for about six or seven months but not usually on the
same shift. 3 RR 157. She said that sometimes their shifts would overlap a few hours.

Ms. Alvarez testified that she thought Ms. Alex’s husband usually brought her to

work in a white van. 3 RR 158. She testified that she watched the surveillance video

with Francheska Ward and Cecilia Sanchez. 3 RR 159. She said that when she

watched the video she believed the person was Ms. Alex. Ms. Alvarez said that she
knew Ms. Alex’s shape and way of walking and that made her believe it was Ms. Alex.

She testified that she was 70% sure the person in the video was Ms. Alex. Ms.

Alvarez testified that she also saw a white van moving away on the video. 3 RR 160.
She did not recognize the vehicle. 3 RR 161.

                                    Page 9 of 16
Detective Charles “Tim” Dukes

      Detective Dukes testified that he was a detective for the Kilgore Police

Department. 3 RR 163. The Jack in the Box burglary case was assigned to him.3 RR

165. He testified that the officers advised him that they collected a pair of gloves at

the scene and that they had viewed a video that at the time was not available to be
downloaded. He said that he spoke with Francheska Ward and asked her to have the

video downloaded. Detective Dukes testified that he also spoke with the general

manager on the 10th. 3 RR 166. Detective Dukes stated that they did not test for

DNA. He said the gloves were collected but they were not tested. He stated that it
was his understanding that another office dusted for prints but that the person in the

video was wearing gloves so he did not think any fingerprints were collected. 3 RR
167. Detective Dukes testified that three of the employees he spoke with who watched

the surveillance video identified that person in the video as Ms. Alex and that is how
he developed his suspect. He said that the vehicle in the video also matches Ms.
Alex’s vehicle. 3 RR 170. He said from the video it was obvious that the person was

only inside the store for a short period of time and went directly to the safe. 3 RR 172.
He stated that he drove to Ms. Alex’s residence and located the vehicle and ran the

license plate. 3 RR 173.

      The State then rested. The defense then rested without calling witnesses. 3 RR

209-210.

      Both sides presented final arguments on March 25, 2015. The jury found the
defendant guilty as charged in the indictment. 4 RR 46. After brief testimony by the

defendant, 4 RR 8, and closing statements by both sides, the jury assessed

punishment at 2 years confinement in state jail. 4 RR 10. CR-44.


                                     Page 10 of 16
                                       ISSUE

      Is there sufficient evidence to prove lack of effective consent by the named

owner to entry to the building, an essential element of the charged offense of burlary
of a building?

                       SUMMARY OF THE ARGUMENT

      There is no evidence that the named owner, Curtis Franklin, did not consent to

an unlawful entry into a building.

                       ARGUMENT AND AUTHORITIES

      The indictment in this case, at CR-4, provides in pertinent part that in Gregg
County, Texas:

      on or about the 9th day of March, 2014, . . . TASARIRISHE TACHAKA ALEX,
      hereinafter called Defendant, did then and there, with intent to commit theft,
      enter a building or a portion of a building not then open to the public, without
      the effective consent of Curtis Franklin, the owner thereof;


      The jury was charged that “Owner” means a person who has title to the
property, possession of the property, whether lawful or not, or greater right to

possession of the property than the actor. CR-35

                             STANDARD OF REVIEW

      In reviewing the legal sufficiency of the evidence, all the evidence is reviewed

in the light most favorable to the verdict to determine whether any rational jury could

have found the essential elements of the offense beyond a reasonable doubt. Brooks
v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)); Bell v. State, 326 S.W.3d 716, 720 (Tex.App. - Dallas 2010,

                                     Page 11 of 16
pet. dism’d) (citing Brooks, 323 S.W.3d at 898). Legal sufficiency is tested under the

direction of the Brooks opinion, while giving deference to the responsibility of the
trier of fact “to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214
S.W.3d 9, 13 (Tex.Crim.App. 2007) (citing Jackson, 443 U.S. at 318-19). “We defer

to the jury’s determinations of the witnesses’ credibility and the weight to be given

their testimony because the jury is the sole judge of those matters.” Bell, 326 S.W.3d
at 720 (citing Brooks, 323 S.W.3d at 899).

                                    ANALYSIS

      The State was required to allege the name of the owner of the stolen property

in its indictment against Lowrey. See Byrd v. State, 336 S.W.3d 242, 251 n. 48

(Tex.Crim.App. 2011). “When an entity, such as a corporation, owns property, the
tranditionally preferable practice has been to allege ownership in a natural person

acting for the corporation.” Id. at 252. “Although, the name of the owner is not a
substantial element of theft, the State is required to prove, beyond a reasonable

doubt, that the person (or entity) alleged in the indictment as the owner is the same
person (or entity) - regardless of the name - as shown by the evidence.”

      State’s witness Francheska Ward, the general manager of Jack in the Box, is

the only witness that spoke of Curtis Franklin, at 3 RR 94-95:

      Q.     And who is Curtis Franklin?

      A.     He’s my district manager.

      Q.     And what does he do?




                                    Page 12 of 16
A.    He comes in and just, you know, kind of makes sure I’m doing what

      I’m supposed to be doing.

Q.    But you’re the person that’s actually over this . . . .

A.    Yes, . .

Q.    . . store?

A.    . . . I’m over that store. Yeah.

Ms. Ward later testified as follows at 3 RR 114-115:

Q.    Did your district manager, Curtis Franklin, see the video as well?

A.    Yes, he did.

Q.    And do you have authority to speak for Mr. Curtis Franklin in this

      matter?

A.    Yes.

Q.    And why is that?

A.    Because he told me. What do you mean, “Why is that?”

Q.    Do you normally act on behalf of the store or the . . .

A.    Oh, yes.

Q.    When the store is closed and locked, as you saw Ms. Valencia do, does

      anyone have your permission to be in the store at that time?

A.    No.



                              Page 13 of 16
Q.   Did you give anyone permission to be in the store after that, on that

     day?

A.   No.

Q.   After an employee is fired, do they have your permission to be in the

     back area of the store?

A.   No.

Q.   Are you aware if Mr. Franklin gave the defendant permission to be in

     that building . . .

     Mr. Jackson:          Object, Your Honor, . . .

Q.   (By Ms. Parker) . . . on that day?

     Mr. Jackson:          that calls for hearsay.

     The Court: As to the specific question asked, I’ll overrule that
                   objection. That does not call for hearsay. The objection

                   is overruled.

Q.   (By Ms. Parker) I’ll ask you again. Are you aware if Mr. Franklin

     gave the defendant permission to be in the store on that day?

A.   No.

Q.   Okay. Thank you.




                               Page 14 of 16
      This court has recently considered sufficiency of evidence in an owner

identity challenge in Lowery v. State, No. 06-14-00172-CR slip. op. July 14, 2015.
Two cases were analyzed: Easley v. State, 319 S.W.2d 325 (Tex.Crim.App. 1959)

and Roberts v. State, 513 S.W.2d 870 (Tex.Crim.App. 1974) .

      In Easley, theft was alleged from H.E. Butt. Trial proof showed that the

owner of the stolen property was H.E. Butt Grocery Co., and not H.E. Butt

individually. Easley’s conviction was reversed.

      In Roberts, the owner of the stolen property(chains) was alleged to be an
individual, Jack Dahlston. The court found that the State failed to prove its
allegations because it never proved that Dahlston, who did not testify, was neither

the actual owner or the “special owner” of the chains. Roberts at 872.

             Both Easley and Roberts involve ownership alleged in an individual.
In the case at bar the identity and authority of Curtis Franklin is opaque at best.

Ward’s testimony establishes that she was not aware if Franklin gave the defendant

permission to be in the store on that day. 3 RR 115.

      The State will no doubt argue that Franklin’s “failure to consent” is a

reasonable deduction that a jury could make from the evidence. And it is clear that

lack of effective consent can be established by circumstantial evidence. See Taylor

v. State, 508 S.W.2d 393, 397 (Tex.Crim.App. 1974). But there is simply no
evidence at all as to what Franklin did or said about that “consent” to anyone.




                                     Page 15 of 16
                                    PRAYER

      This case should be reversed and remanded for a new trial.

                                     Respectfully submitted,


                                     EBB B. MOBLEY
                                     Attorney at Law
                                     422 North Center St - Lower Level.
                                     P. O. Box 2309
                                     Longview, TX 75606
                                     Telephone: (903) 757-3331
                                     Facsimile: (903) 753-8289
                                     ebbmob@aol.com


                                     /S/ EBB B. MOBLEY
                                     EBB B. MOBLEY
                                     State Bar # 14238000
                                     ATTORNEY FOR APPELLANT

                    CERTIFICATE OF COMPLIANCE
     I certify that this pleading contains 3383 words according to the computer
program used to prepare the document.

                                     /s/ EBB B. MOBLEY
                                     EBB B. MOBLEY


                       CERTIFICATE OF SERVICE
     A copy of this brief emailed to Gregg County Assistant District Attorney
Zan Brown on the 24th day of July, 2015 by efile.

                                     /s/ EBB B. MOBLEY
                                     EBB B. MOBLEY




                                   Page 16 of 16
