                                                                                          ACCEPTED
                                                                                     06-14-00222-CR
                                                                           SIXTH COURT OF APPEALS
                                                                                TEXARKANA, TEXAS
                                                                                2/25/2015 2:34:30 PM
                                                                                     DEBBIE AUTREY
                                                                                              CLERK



                             No. 06-14-00222-CR
                    ____________________________________________
                                                            FILED IN
                                                             6th COURT OF APPEALS
                                                               TEXARKANA, TEXAS
                                     IN THE                  2/26/2015 11:52:00 AM
                                                                  DEBBIE AUTREY
                             SIXTH COURT OF APPEALS                   Clerk
                              AT TEXARKANA, TEXAS

                    ____________________________________________

                    TAMMY KAY TAYLOR,
                                                        Appellant

                                       v.

                    THE STATE OF TEXAS,
                                                   Appellee
                    ____________________________________________

                                 APPEAL FROM
                     TH
                THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
                           TRIAL COURT NO. 1423993
                    ____________________________________________

                              APPELLANT’S BRIEF
                    ____________________________________________

                                            Wade A. Forsman
                                            P.O. Box 918
                                            Sulphur Springs, TX 75483-0918
                                            903.689.4144, f. 903.689.7001
                                            wade@forsmanlaw.com

                                            Attorney for Appellant
                                            Tammy Kay Taylor

                          ORAL ARGUMENT REQUESTED




Appellant’s Brief
                      IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38(a), the following is a list of all

parties to the trial court’s judgment and the names and addresses of all trial and

appellate counsel:

Appellant                                   Appellant’s appellate counsel
Tammy Kay Taylor                            Wade A. Forsman
                                            P.O. Box 918
                                            Sulphur Springs, TX 75483-0918
                                            903.689.4144 telephone
                                            903.689.7001 facsimile
                                            wade@forsmanlaw.com

                                            Appellant’s trial counsel
                                            Ron Ferguson
                                            Roland M. “Ron” Ferguson, Jr.
                                            1804 Woodbridge Drive
                                            Sulphur Springs, TX 75482
                                            903.335.8412 telephone

Appellee                                    Appellee’s trial & appellate counsel
The State of Texas                          Will Ramsay
                                            Hopkins County District Attorney
                                            114 Main Street
                                            Sulphur Springs, TX 75482
                                            903.885.0641 telephone
                                            903.885.0640 facsimile
                                            willramsay@suddenlinkmail.com




Appellant’s Brief                                                             Page i
                              TABLE OF CONTENTS

Identity of Parties and Counsel ……………………………………………………. i

Table of Contents ………………………………………………………………                                         ii

Index of Authorities …………………………………………………………… iii

Statement of the Case …………………………………………………………….. 1

Issues Presented …………………………………………………………………... 2

      POINT OF ERROR NO. 1: The trial court erred in admitting testimony
      concerning an extraneous offense which the State failed to prove
      beyond a reasonable doubt as required by Higginbotham v. State, 356
      S.W.3d 584 (Texarkana 2011, pet. ref’d).

      POINT OF ERROR NO. 2: The trial court erred in making a “Hardesty
      inference” because the allegedly stolen property was found in a place
      where at least two persons other than Appellant had an equal right and
      facility of access.

Statement of Facts ……………………………………………………………….. 3

Summary of the Argument………………………………………………………. 5

Argument …………………………………………………………………............ 6

Prayer …………………………………………………………………………….. 9

Certificate of Word Count ………………………………………………………. 10

Certificate of Service……………………………………………………………...10




Appellant’s Brief                                                              Page ii
                        INDEX OF AUTHORITIES

Cases

Blevins v. State,
      6 S.W.3d 566 (Tex. App. – Tyler 1999, pet. ref’d)…………………………. 9

George v. State,
     890 S.W.2d 73 (Tex. Crim. App. 1994)…………………………………….. 7

Hardesty v. State,
     656 S.W.2d 73 (Tex. Crim. App. 1983)…………………………………….. 8

Higginbotham v. State,
      356 S.W.3d 584 (Texarkana 2011, pet. ref’d)……………………………… 7

Pardee v. State,
     2012 Tex. App. LEXIS 6823
     (Tex. App. – Texarkana Aug. 16, 2012, pet. ref’d)……………………….. 8,9

Poncio v. State,
     185 S.W.3d 904 (Tex. Crim. App. 2006)…………………………………….8

Statutes

TEX. PENAL CODE §31.03(c)(1)…………………………………………………. 6,7

Court Rules

Tex. R. App. P. 9.4(i)(3) …………………………………………………………. 9

TEX. R. APP. P. 38(a) ……………………………………………………………… i




Appellant’s Brief                                               Page iii
                             No. 06-14-00222-CR
                    ____________________________________________

                                       IN THE
                             SIXTH COURT OF APPEALS
                              AT TEXARKANA, TEXAS

                    ____________________________________________

                    TAMMY KAY TAYLOR,
                                                          Appellant

                                         v.

                    THE STATE OF TEXAS,
                                                           Appellee

                    ____________________________________________

                                 APPEAL FROM
                     TH
                THE 8 DISTRICT COURT OF HOPKINS COUNTY, TEXAS
                           TRIAL COURT NO. 1423993
                    ____________________________________________

                              APPELLANT’S BRIEF
                    ____________________________________________



                            STATEMENT OF THE CASE

       This is an appeal from a conviction for burglary of a habitation, a second-
degree felony, for which the trial court sentenced Appellant to fifteen (15) years of
confinement in the Institutional Division of the Texas Department of Criminal
Justice (“TDCJ”).


Appellant’s Brief                                                              Page 1
                               ISSUES PRESENTED

      POINT OF ERROR NO. 1: The trial court erred in admitting testimony
      concerning an extraneous offense which the State failed to prove
      beyond a reasonable doubt as required by Higginbotham v. State, 356
      S.W.3d 584 (Texarkana 2011, pet. ref’d).

      POINT OF ERROR NO. 2: The trial court erred in making a “Hardesty
      inference” because the allegedly stolen property was found in a place
      where at least two persons other than Appellant had an equal right and
      facility of access.




Appellant’s Brief                                                              Page 2
                                STATEMENT OF FACTS

       Mr. Jitendra Patel and his wife Ms. Jaya Patel have owned and operated a

hotel in Sulphur Springs, Texas called the Royal Inn since February 1992 (Vol. 3; p.

34; l. 12, 21-24). The Patels also live there (Vol. 3; pp. 37-38; l. 15-3).

       Beginning on October 22, 2013, Mr. Patel employed the defendant, Ms.

Tammy Kay Taylor, to work at the front desk (Vol. 3; p. 36; l. 15, 21-22)(Vol. 3; p.

87; l. 12-15).

       Mr. Patel went to India on December 3, 2013 (Vol. 3; p. 36; l. 25), and Ms.

Patel went to India on December 20, 2013 (Vol. 3; p. 87; l. 20). Mr. Patel told his

employees, including Taylor, that he was going to be gone until January 17, 2014

(App. 3; p. 37; l. 1-14).

       Some time in December 2013 Taylor met Ms. Wanda Henderson. There was

an ice storm at that time and Henderson, who had been taking care of an individual

named Mr. Ron Hansen for about 10 years, put Hansen up at the Royal Inn because

Hansen’s home had no heat (Vol. 3; p. 122; l. 17-23). Henderson met Taylor while

she was checking Hansen out of the Royal Inn and taking him back home (Vol. 3; p.

123-24; l. 13-20). It was at that time when Henderson broached the subject of Taylor

and her husband working as live-in caretakers for Hansen, to which Taylor expressed

an interest.

Appellant’s Brief                                                             Page 3
       Sometime in January 2014, Taylor, who was accompanied by her husband,

drove to Hansen’s home in a pickup truck and spent two days “unload[ing] things”

there (Vol. 3; p. 125; l. 1-18). According to Henderson, “On the second day when

they [i.e., Taylor and her husband] unloaded the suitcases, she [i.e., Taylor] said they

would be back Saturday to start the job [as live-in caretaker]” (Vol. 3; p. 134; l. 15-

17).

       When the Patels returned from India on January 17, 2014, they discovered

that their dwelling place at the Royal Inn was in “chaos” (Vol. 3; p. 39; l. 21-25)

(Vol. 3; p. 44; l. 11-15)(Vol. 3; pp. 88-89; l. 2-7, 23-19). Mr. Patel discovered that

the bedrooms, as well as the back office, living room, and kitchen, had all been gone

through or burglarized (Vol. 3; p. 40 l. 5-8).

       Upon his return on January 17, 2014, Mr. Patel believed Taylor was still one

of his employees (App. 3; p. 41; l 21-24). However, Taylor was not at the front desk

(Vol. 3; p. 41; l. 25), and Mr. Patel never saw Taylor at the Royal Inn again (Vol. 3;

pp. 66-67; l. 25-2), although Taylor informed Mr. Patel by telephone that she was

out of town attending to some non-work-related matters (Vol. 3; p. 42; l. 3-10).

       Taylor was later indicted for burglary of a habitation, a second-degree felony

(Vol. 3; p. 8; l. 9-10)(Vol. 3; p. 25; l. 4-23). Trial was held on October 15, 2014 (Vol.

3; p. 1). Trial was before the Court instead of a jury (Vol. 3; p. 8; l. 11-17).

Appellant’s Brief                                                                  Page 4
      At trial, the State called an individual named Mr. Rupinderit Singh as a

witness (Vol. 3; p. 181; 1; 7-8). Singh testified that he owns a convenience store in

Sulphur Springs named Family Mart (Vol. 3; p. 182; l. 15-18). Singh also testified

that Taylor worked there (Vol. 3; p. 183; l. 20), and that Taylor had stolen money

from that business (Vol. 3; p. 183; l. 22-23).

      The trial court found Taylor guilty of burglary of a habitation (Vol. 3; p. 216;

l. 1). On November 10, 2014, the trial court sentenced Taylor to 15 years

confinement with TDCJ (Vol. 4; pp. 20-21; l. 22-8).



                           SUMMARY OF THE ARGUMENT

      POINT OF ERROR NO. 1: The trial court erred in admitting testimony
      concerning an extraneous offense which the State failed to prove
      beyond a reasonable doubt as required by Higginbotham v. State, 356
      S.W.3d 584 (Texarkana 2011, pet. ref’d).

      POINT OF ERROR NO. 2: The trial court erred in making a “Hardesty
      inference” because the allegedly stolen property was found in a place
      where at least two persons other than Appellant had an equal right and
      facility of access.




Appellant’s Brief                                                               Page 5
                                      ARGUMENT

      POINT OF ERROR NO. 1: The trial court erred in admitting testimony
      concerning an extraneous offense which the State failed to prove
      beyond a reasonable doubt as required by Higginbotham v. State, 356
      S.W.3d 584 (Texarkana 2011, pet. ref’d).

      Taylor was indicted for burglary of a habitation. TEX. PEN. CODE §30.02. To

be found guilty, the State had to prove that Taylor entered the habitation of another

– in this case, the habitation of Mr. and Mrs. Patel -- with the intent to commit a

felony there – in this case, theft. Id. at §30.02(a)(1).

      Theft is defined in Section 31.03 of the Penal Code. Subsection (a) states, “A

person commits an offense if [s]he unlawfully appropriates property with intent to

deprive the owner of property.” Subsection (b)(1) states, “Appropriation of property

is unlawful if it is without the owner’s effective consent.”

      Subsection (c)(1) is what is at issue here. Subsection (c)(1) states that for

purposes of defining the word “appropriation” in subsection (b), “[E]vidence that

the actor has previously participated in recent transactions other than, but similar to,

that which the prosecution is based is admissible for the purpose of showing

knowledge or intent and the issues of knowledge or intent are raised by the actor's

plea of not guilty[.]”

      What TEX. PEN. CODE §31.03(c)(1) does not do is identify the level or

quantum of extraneous offense evidence necessary for purposes of Subsection (c)(1).
Appellant’s Brief                                                                 Page 6
Thus, the statute does not say whether an actual conviction is necessary, whether

mere gossip or innuendo is necessary, or whether something in between is necessary.

      Fortunately, this Court of Appeals addressed and answered this question in

Higginbotham v. State, 356 S.W.3d 584 (Texarkana 2011, pet. ref’d). That case was

brought by a certain Mr. Billy R. Higginbotham, Jr., who appealed his conviction

for theft. In that case, this Court of Appeals was called upon to resolve the following

dispute:

      Higginbotham argues that the trial court erred in admitting testimony
      concerning an extraneous offense, which the State failed to prove
      beyond a reasonable doubt. The State responds that neither TEX. PENAL
      CODE ANN. § 31.03(c)(1) nor TEX. R. EVID. 404(b) requires such
      extraneous offenses to be proven beyond a reasonable doubt. . . The
      State claims it was not obligated to prove the extraneous offenses
      beyond a reasonable doubt.

Id. at 590-91. The dispute in Higginbotham arose in pertinent part from the State’s

proffer of a witness named Randall Allen York, who testified about similar events –

namely, construction work – to those forming the basis of Higginbotham’s theft

conviction. This Court then ruled:

      Although . . . TEX. PENAL CODE ANN. § 31.03(c)(1) . . . [does not]
      explicitly provide that extraneous evidence at the guilt/innocence phase
      must be proven beyond a reasonable doubt, it is well-established that
      such a requirement is implied. See, e.g., George v. State, 890 S.W.2s
      73, 76 (Tex. Crim. App. 1994) (extraneous offenses introduced at
      guilt/innocence must be proven beyond a reasonable doubt).


Appellant’s Brief                                                                Page 7
        We agree with Higginbotham that the extraneous offense of theft . . .
        was not proven beyond a reasonable doubt. The trial court erred in
        admitting York's testimony.
Id. at 591-92 (emphasis added). Similarly here, there is no finding from the trial

court that Taylor had committed theft at the Family Mart. Nor is there any evidence

that Taylor was ever convicted, indicted, or even arrested for any theft from Family

Mart.

        POINT OF ERROR NO. 2: The trial court erred in making a “Hardesty
        inference” because the allegedly stolen property was found in a place
        where at least two persons other than Appellant had an equal right and
        facility of access.

        In Pardee v. State, 2012 Tex. App. LEXIS 6823, *4 (Tex. App. – Texarkana

Aug. 16, 2012, pet. ref’d), this Court wrote, “It is well established that when a

suspect is found in possession of recently-stolen property and he fails to provide a

reasonable explanation for his possession of that property, the fact-finder is

permitted to draw an inference of guilt.” Id. at *4 (citing Poncio v. State, 185 S.W.3d

904, 905 (Tex. Crim. App. 2006); Hardesty v. State, 656 S.W.2d 73, 76-77 (Tex.

Crim. App. 1983)).

        Unfortunately for the State, that does not end the analysis. That is because this

Court went on to state the following in Pardee:

        No inference of guilt can be raised where police found the stolen
        property in a place where others have an equal right and facility of
        access.
Appellant’s Brief                                                                  Page 8
Pardee, 2012 Tex. App. at *4 (emphasis added)(citing Blevins v. State, 6 S.W.3d

566, 569-70 (Tex. App. – Tyler 1999, pet. ref’d)).

      In this case, the evidence is uncontroverted that at least two other individuals

– Hansen and Henderson – had access that, at a minimum, was equal to Taylor’s.

                                      PRAYER

      WHEREFORE, premises considered, Appellant, Tammy Kay Taylor,

respectfully requests that the judgment of the trial court be reversed and remanded

for new trial, and/or for such other and further relief to which he may establish

himself entitled.

                                              Respectfully submitted,

                                              By: __/s/ Wade A. Forsman_
                                              Wade A. Forsman
                                              State Bar No. 07264257
                                              P.O. Box 918
                                              Sulphur Springs, TX 75483-0918
                                              903.689.4144 East Texas
                                              972.499.4004 Dallas/Fort Worth
                                              903.689.7001 Facsimile
                                              wade@forsmanlaw.com

                                              Attorney for Appellant
                                              Tammy Kay Taylor




Appellant’s Brief                                                               Page 9
                         CERTIFICATE OF WORD COUNT

      Pursuant to Tex. R. App. P. 9.4(i)(3), this document contains 2,190 words.

                                                   __/s/ Wade A. Forsman_
                                                   Wade A. Forsman


                            CERTIFICATE OF SERVICE

      This is to certify that on February 25, 2015, I served a true and correct copy
of the above and foregoing Appellant’s Brief by email on Will Ramsay, District
Attorney, at 114 Main Street, Sulphur Springs, Texas 75482.

                                                   __/s/ Wade A. Forsman_
                                                   Wade A. Forsman




Appellant’s Brief                                                             Page 10
