                                                               ACCEPTED
                                                          12-14-00189-CR
                                              TWELFTH COURT OF APPEALS
                                                           TYLER, TEXAS
                                                      3/4/2015 2:57:12 PM
                                                             CATHY LUSK
                                                                   CLERK

         NO. 12-14-00189-CR

               IN THE                     FILED IN
                                   12th COURT OF APPEALS
         COURT OF APPEALS               TYLER, TEXAS
        5TH JUDICIAL DISTRICT       3/4/2015 2:57:12 PM
           DALLAS, TEXAS                CATHY S. LUSK
                                            Clerk


      TRACY RAY HASS, Appellant

                 v.

    THE STATE OF TEXAS, Appellee


    ON APPEAL IN CAUSE NUMBER
              061728
   FROM THE 59TH DISTRICT COURT
    OF GRAYSON COUNTY, TEXAS
    HON. RAYBURN NALL, presiding


          APPELLEE'S BRIEF


        KARLA BAUGH HACKETT
ASSISTANT CRIMINAL DISTRICT ATTORNEY
       GRAYSON COUNTY, TEXAS
          200 S. CROCKETT ST.
           SHERMAN, TX 75090
              903/813-4361
            903/892-9933 (fax)
     baughk@co.grayson.tx.us (email)
        TEXAS BAR NO. 01923400


      ATTORNEY FOR THE STATE

   ORAL ARGUMENT NOT REQUESTED
                         LIST OF PARTIES
                             APPELLANT:

                          TRACY RAY HASS

                      ATTORNEY FOR APPELLANT:

                        AT TRIAL & ON APPEAL:

                          DAVID ZEDLER
                215 N. TRAVIS, SHERMAN, TX 75090
                         BAR NO. 0095737
                           903/868-8989
                         FAX: 903/786-0007

                             APPELLEE:

                         THE STATE OF TEXAS

                      ATTORNEY FOR THE STATE:
   ON APPEAL              ELECTED OFFICIAL                  AT TRIAL

   KARLA BAUGH            JOSEPH D. BROWN            BRITTON BROOKS
     HACKETT               BAR NO. 00793413          BAR NO. 24049427
BAR NO. 01923400                   CDA                  HOANG HUNT
    ASST. CDA                  GRAYSON               BAR NO. 24027081
     GRAYSON                COUNTY, TEXAS                ASST. CDA
  COUNTY, TEXAS            200 S. CROCKETT                GRAYSON
 200 S. CROCKETT               SUITE 100               COUNTY, TEXAS
     SUITE 100               SHERMAN, TX              200 S. CROCKETT
   SHERMAN, TX                    75090                   SUITE 100
       75090                 (903) 813-4361             SHERMAN, TX
   903/ 813-4361          903/ 892-9933 (FAX)               75090
903/ 892-9933 (FAX)                                     903/ 813-4361
                                                     903/ 892-9933 (FAX)



                                        STATE'S BRIEF 12-14-00189-CR - PAGE ii
                                TABLE OF CONTENTS

LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

        RESPONSE POINT 1: THE TRIAL COURT DID NOT ERR IN
            DENYING THE APPELLANT’S MOTION TO SUPPRESS
            EVIDENCE BECAUSE THE APPELLANT’S ARREST WAS NOT
            ILLEGAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

                A. HEARING ON MOTION TO SUPPRESS . . . . . . . . . . . . . . 8

                B. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . 11

                C. THE OFFICER HAD PROBABLE CAUSE TO ARREST
                     THE APPELLANT AND SEARCH HIS VEHICLE,
                     THEREFORE, THE TRIAL COURT DID NOT ABUSE
                     ITS DISCRETION IN DENYING THE MOTION TO
                     SUPPRESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

        RESPONSE POINT 2: THE TRIAL COURT DID NOT ERR IN
            ALLOWING EVIDENCE TO REBUT TESTIMONY
            REGARDING THE APPELLANT’S LACK OF
            KNOWLEDGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

                A. DEFENSIVE THEORY AT TRIAL . . . . . . . . . . . . . . . . . . . 16

                B. STANDARD OF REVIEW FOR ADMISSIBILITY OF

                                                           STATE'S BRIEF 12-14-00189-CR - PAGE iii
                        PRIOR OFFENSES TO PROVE INTENT OR
                        REBUT DEFENSIVE THEORY . . . . . . . . . . . . . . . . . . . 19

                C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION
                     BECAUSE THE APPELLANT’S PRIORS WERE
                     PROPERLY ADMITTED FOR THE PURPOSE OF
                     REBUTTING THE DEFENSIVE THEOR THAT THE
                     APPELLANT HAD NO INTENT TO POSSESS THE
                     STOLEN AUTO PARTS. . . . . . . . . . . . . . . . . . . . . . . . 20

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24




                                                             STATE'S BRIEF 12-14-00189-CR - PAGE 1
                               INDEX OF AUTHORITIES
Federal Cases

Miller v. Fenton, 474 U.S. 104, 106 S. Ct. 445, 88
       L. Ed. 2d 405 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134
       L. Ed. 2d 911 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

State Cases

Allridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991) . . . . . . . . . . . . 13
Dennis v. State, 178 S.W.3d 172 (Tex. App.—Houston [1st Dist.]
       2005, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Garcia v. State, 15 S.W.3d 533 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . 13
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) . . . . . . . . . . . . 14
Mattias v. State, 731 S.W.2d 936 (Tex. Crim. App. 1987) . . . . . . . . . . . . 13
Meek v. State, 790 S.W.2d 618 (Tex. Crim. App. 1990) . . . . . . . . . . . . . 13
Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) . . . . . . . . 20
Moses v. State, 105 S.W.3d 622 (Tex. Crim. App. 2003) . . . . . . . . . . 21, 22
Nobles v. State, 843 S.W.2d 503 (Tex. Crim. App. 1992) . . . . . . . . . . . . 21
Rankin v. State, 974 S.W.2d 707(Tex. Crim. App. 1996) . . . . . . . . . . . . . 20
Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990) . . . . . . . . 13, 20
Shipman v. State, 604 S.W.2d 182 (Tex. Crim. App. 1980) . . . . . . . . . . . 21
Spann v. State, 448 S.W.2d 128 (Tex. Crim. App. 1969) . . . . . . . . . . . . . 20
State v. Ballard, 987 S.W.2d 889 (Tex. Crim. App. 1999) . . . . . . . . . . . . 12
State v. Fecci, 9 S.W.3d 212 (Tex. App.—San Antonio 1999, no pet.) . . 13
Villarreal v. State, 935 S.W.2d 134 (Tex. Crim. App. 1996) . . . . . . . . . . . 13
Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002) . . . . . . . . . . . . 21
Wolfberg v. State, 73 S.W.3d 441 (Tex. App.—Houston [1st Dist.]
       2002, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

State Court Rules
Tex. R. Evid. 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22




                                                            STATE'S BRIEF 12-14-00189-CR - PAGE 2
                           NO. 12-14-00189-CR


                                IN THE
                          COURT OF APPEALS
                         5TH JUDICIAL DISTRICT
                            DALLAS, TEXAS


                      TRACY RAY HASS, Appellant

                                     v.

                    THE STATE OF TEXAS, Appellee




TO THE HONORABLE COURT OF APPEALS:

     COMES NOW THE STATE OF TEXAS, hereinafter referred to as the

State, and submits this brief pursuant to the Texas Rules of Appellate

Procedure and would show through her attorney the following:


                        ISSUES PRESENTED

                           RESPONSE POINT 1:

   THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT’S
   MOTION TO SUPPRESS EVIDENCE BECAUSE THE APPELLANT’S
                  ARREST WAS NOT ILLEGAL.

                           RESPONSE POINT 2:


                                           STATE'S BRIEF 12-14-00189-CR - PAGE 3
THE TRIAL COURT DID NOT ERR IN ALLOWING EVIDENCE TO REBUT
TESTIMONY REGARDING THE APPELLANT’S LACK OF KNOWLEDGE.


                     SUMMARY OF ARGUMENT

      In his first ground, the appellant alleges that the appellant’s arrest by

the Grayson County Sheriff’s Office was illegal. Specifically, the appellant

alleges that there was insufficient evidence at the time of the arrest to prove

that the appellant had committed the offense of theft.       At the hearing on

the motion to suppress, the only witness who testified was Deputy Bowling.

The Court was free to believe all, none or any part of the deputy’s

testimony.

      Deputy Bowling was dispatched to respond to a complaint by a

neighbor of a couple of vehicles on property at night where there was no

residence at 2:13 in the morning. Once at that location, Deputy Bowling

was unable to locate the vehicles described by the neighbor, but did notice

a damaged gate where someone had forced the gate open. Multiple

inoperable vehicles were parked on the property where the gate had been

forced open which, based on Deputy Bowling’s training and experience,

contained car parts that are a property often stolen. Approximately three

hours later, he did locate a vehicle approximately 15 yards from the

                                             STATE'S BRIEF 12-14-00189-CR - PAGE 4
damaged gate loaded heavily with some unknown item or items and stuck

in a ditch.

      Deputy Bowling observed the appellant walking around the vehicle

which had the trunk open. As soon as the deputy approached in his marked

police car, the appellant immediately closed the trunk, appearing to be

trying to conceal something. The appellant appeared very nervous when

approached by the deputy and was sweating profusely despite the cool

night air. The appellant was uneasy in the deputy’s presence, unable to

stand in one place while the deputy questioned him. When questioned, the

appellant told Deputy Bowling that he was coming from a friends house

known to him only as “Elwood,” pointing to the east about three driveways

from where his car was stranded, then stated that he was going to Trenton,

to the east. This seemed odd because his car was facing east, but

stranded west of the residence where he claimed to have been visiting.

      Deputy Bowling also observed something heavy in the backseat of the

vehicle concealed by a sheet or shower curtain, consistent with large car

parts. When asked what was being concealed, the appellant told Deputy

Bowling that it was auto parts.

      Based on the accessibility of the vehicles parked on the property with



                                           STATE'S BRIEF 12-14-00189-CR - PAGE 5
the broken gate , the proximately to the broken gate, the appellant’s

demeanor, the time of night, the appellant’s reactions and the items being

auto parts, the possession of which were only vaguely explained, the officer

had probable cause to believe that the appellant had committed theft and

was in possession of that stolen property. The trial court did not abuse its

discretion in finding probable cause to arrest the appellant and search the

vehicle and denying the motion to suppress.

      In his second ground, the appellant alleges that the trial court erred in

allowing character evidence to be admitted to rebut the appellant’s claim

that he did not the items in the vehicle were stolen. The defensive theory

that appellant lacked the intent to commit the offense of theft was

introduced into the case by the appellant when Colene Williams attempted

to assume sole responsibility for the purchase of the stolen auto parts, and

was subject, therefore, to rebuttal by the State. Specifically, Ms. William’s

testimony attempted to prove that she owned the car, she purchased the

auto parts, she got the car stuck in a ditch, and the appellant did not know

anything about anything.

      The trial court properly instructed the jury to only use the appellant’s

prior criminal history to determine the appellant’s intent. The extraneous



                                             STATE'S BRIEF 12-14-00189-CR - PAGE 6
evidence had probative value beyond character conformity. The extraneous

offense evidence admitted to rebut a the defensive theory of lack of intent

was similar to the charged offense. The fact that the appellant had

committed and been convicted of several burglaries and a theft proved he

was much more knowledgeable than the average person about the nature

of stolen property. Certainly, he was too knowledgeable to think that

thousand’s of dollars of stolen property just appeared in his car – or his ex-

girlfriend’s car as Ms. Williams claimed. Based on his prior burglaries and

thefts, the appellant would have known that auto parts, especially those

concealed under a sheet or shower curtain, in a vehicle parked next to

multiple parked vehicles, on property where the gate had been forced open,

were suspicious.

      The appellant made no argument at trial that the probative value was

outweighed by any prejudicial effect. The jury was strictly instructed to only

consider the extraneous offenses if they believed the appellant committed

those offenses beyond a reasonable doubt and only to determine the

appellant’s intent in possessing the stolen auto parts. As such, the trial

court’s decision to allow the State to use the appellant’s extraneous

offenses for rebuttal purposes was not an abuse of discretion under Rule



                                             STATE'S BRIEF 12-14-00189-CR - PAGE 7
404(b).


                                ARGUMENT


                            RESPONSE POINT 1:

  THE TRIAL COURT DID NOT ERR IN DENYING THE APPELLANT’S
  MOTION TO SUPPRESS EVIDENCE BECAUSE THE APPELLANT’S
                 ARREST WAS NOT ILLEGAL.


      In his first ground, the appellant alleges that the appellant’s arrest by

the Grayson County Sheriff’s Office was illegal. Specifically, the appellant

alleges that there was insufficient evidence at the time of the arrest to prove

that the appellant had committed the offense of theft.



                A. HEARING ON MOTION TO SUPPRESS



      Deputy Donald Bowling, having been a certified peace officer for over

13 years, had investigated and made arrests on multiple theft cases. (RR

vol. 2, pp. 4-5) On January 16, 2012, Deputy Bowling was dispatched to

respond to a complaint of a couple of vehicles on property at night where no

residence existed. (RR vol. 2, p. 6) The complaint call was from a neighbor


                                             STATE'S BRIEF 12-14-00189-CR - PAGE 8
in that area. (RR vol. 2, p. 7) It was 2:13 in the morning. (RR vol. 2, p. 7)

      Deputy Bowling proceeded to that location and was unable to locate

the vehicles described by the neighbor. (RR vol. 2, p. 9) Upon checking

the property, Deputy Bowling noticed a damaged gate where someone had

forced the gate open. (RR vol. 2, pp. 7-8) Multiple inoperable vehicles were

parked on the property where the gate had been forced open. (RR vol. 2,

pp. 8-9) Based on Deputy Bowling’s training and experience, car parts are

a property often stolen. (RR vol. 2, p. 9)

      Deputy Bowling, unable to locate the vehicles described by the

neighbor, left the property. (RR vol. 2, p. 9) The deputy returned to that

location approximately three hours later. (RR vol. 2, p. 9) This time he did

locate a vehicle approximately 15 yards from the damaged gate. (RR vol.

2, p. 9) A passenger vehicle on the side of the roadway loaded heavily with

some unknown item or items appeared to be stuck in a ditch. (RR vol. 2,

pp. 9-10) Deputy Bowling observed the appellant walking around the vehicle

which had the trunk open. (RR vol. 2, pp. 10-12) As soon as the deputy

approached in his marked police car, the appellant immediately closed the

trunk. (RR vol. 2, p. 11) Deputy Bowling was immediately suspicious as

the action by the appellant appeared to be trying to conceal something.



                                             STATE'S BRIEF 12-14-00189-CR - PAGE 9
(RR vol. 2, pp. 11-12)

     The appellant appeared very nervous when approached by the

deputy. (RR vol. 2, p. 12) The temperature was cool, but the appellant was

sweating profusely. (RR vol. 2, p. 12) The appellant was uneasy in the

deputy’s presence, unable to stand in one place while the deputy

questioned him. (RR vol. 2, pp. 12-13)

     Deputy Bowling asked the appellant why he was there, where he was

going to and where he had come from. (RR vol. 2, p. 13) The appellant

told Deputy Bowling that he was coming from a friends house known to him

only as “Elwood,” pointing to the east about three driveways from where his

car was stranded.   (RR vol. 2, p. 13) The appellant also stated that he was

going to Trenton, to the east. This seemed odd because his car was facing

east, but stranded west of the residence where he claimed to have been

visiting. (RR vol. 2, pp. 13-14) Deputy Bowling also observed something

heavy in the backseat of the vehicle concealed by a sheet or shower

curtain. (RR vol. 2, p. 14) When asked what was being concealed, the

appellant told Deputy Bowling that it was auto parts. (RR vol. 2, p. 15)

Deputy Bowling believed those parts to have been stolen from the many

vehicles parked on the property with the broken gate based on the



                                           STATE'S BRIEF 12-14-00189-CR - PAGE 10
proximately to the broken gate, the appellant’s demeanor, the time of night,

the appellant’s reactions and the items being auto parts. (RR vol. 2, p. 15)

The appellant told the deputy that he had purchased the auto parts from “a

friend” but was vague and unable to elaborate on the “friend.” (RR vol. 2,

pp. 15-16) This vagueness was consistent with deception. (RR vol. 2, p.

16) As the deputy spoke with him, the appellant became more and more

agitated. (RR vol. 2, pp. 16-17)

      At that point, the officer believed he had probable cause to believe

that the appellant had committed theft and was in possession of that stolen

property. (RR vol. 2, p. 17) The deputy also had probable cause, to

search the motor-vehicle, finding several large heavy engine parts. (RR

vol. 2, p. 17)



                         B. STANDARD OF REVIEW



      In a motion to suppress hearing, the trial court is the sole trier of fact

and judge of the credibility of the witnesses and the weight to be given their

testimony. See State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App.

1999). Accordingly, the judge may believe or disbelieve all or any part of a


                                             STATE'S BRIEF 12-14-00189-CR - PAGE 11
witness's testimony, even if that testimony is not controverted. See Garcia

v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000); Allridge v. State, 850

S.W.2d 471, 492 (Tex. Crim. App. 1991); Meek v. State, 790 S.W.2d 618,

620 (Tex. Crim. App. 1990). See also, State v. Fecci, 9 S.W.3d 212, 221

(Tex. App.—San Antonio 1999, no pet.) See Mattias v. State, 731 S.W.2d

936, 940 (Tex. Crim. App. 1987). This is so because it is the trial court that

observes first hand the demeanor and appearance of a witness, as

opposed to an appellate court which can only read an impersonal record.

See Garcia, 15 S.W.3d at 535; Villarreal v. State, 935 S.W.2d 134, 138

(Tex. Crim. App. 1996); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.

App. 1990).

      In reviewing a trial court's ruling, an appellate court must first

determine the applicable standard of review. The amount of deference a

reviewing court affords to a trial court's ruling on a “mixed question of law

and fact” (such as the issue of probable cause) often is determined by

which judicial actor is in a better position to decide the issue. Miller v.

Fenton, 474 U.S. 104, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985). If the issue

involves the credibility of a witness, thereby making the evaluation of that

witness' demeanor important, compelling reasons exist for allowing the trial



                                              STATE'S BRIEF 12-14-00189-CR - PAGE 12
court to apply the law to the facts. Miller, 106 S. Ct. at 452. On the other

hand if the issue is whether an officer had probable cause to seize a

suspect, under the totality of the circumstances, the trial judge is not in an

appreciably better position than the reviewing court to make that

determination.

      The United States Supreme Court ruled that, although great weight

should be given to the inferences drawn by the trial judges and law

enforcement officers, determinations of reasonable suspicion and probable

cause should be reviewed de novo on appeal. Ornelas v. United States, 517

U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996). The Court stated, “the

legal rules for probable cause and reasonable suspicion acquire content

only through application. Independent review is therefore necessary if

appellate courts are to maintain control of, and to clarify the legal

principles.” Ornelas, 116 S. Ct. at 1662, citing Miller, 106 S. Ct. at 451–52.;

Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).



    C. THE OFFICER HAD PROBABLE CAUSE TO ARREST THE
 APPELLANT AND SEARCH HIS VEHICLE, THEREFORE, THE TRIAL
 COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE MOTION
                       TO SUPPRESS




                                             STATE'S BRIEF 12-14-00189-CR - PAGE 13
      At the hearing on the motion to suppress, the only witness who

testified was Deputy Bowling. The Court was free to believe all, none or

any part of the deputy’s testimony.

      Deputy Bowling was dispatched to respond to a complaint by a

neighbor of a couple of vehicles on property at night where there was no

residence at 2:13 in the morning. Once at that location, Deputy Bowling

was unable to locate the vehicles described by the neighbor, but did notice

a damaged gate where someone had forced the gate open. Multiple

inoperable vehicles were parked on the property where the gate had been

forced open which, based on Deputy Bowling’s training and experience,

contained car parts that are a property often stolen. Approximately three

hours later, he did locate a vehicle approximately 15 yards from the

damaged gate loaded heavily with some unknown item or items and stuck

in a ditch.

      Deputy Bowling observed the appellant walking around the vehicle

which had the trunk open. As soon as the deputy approached in his marked

police car, the appellant immediately closed the trunk, appearing to be

trying to conceal something. The appellant appeared very nervous when

approached by the deputy and was sweating profusely despite the cool



                                          STATE'S BRIEF 12-14-00189-CR - PAGE 14
night air. The appellant was uneasy in the deputy’s presence, unable to

stand in one place while the deputy questioned him. When questioned, the

appellant told Deputy Bowling that he was coming from a friends house

known to him only as “Elwood,” pointing to the east about three driveways

from where his car was stranded, then stated that he was going to Trenton,

to the east. This seemed odd because his car was facing east, but

stranded west of the residence where he claimed to have been visiting.

     Deputy Bowling also observed something heavy in the backseat of the

vehicle concealed by a sheet or shower curtain, consistent with large car

parts. When asked what was being concealed, the appellant told Deputy

Bowling that it was auto parts.

     Based on the accessibility of the vehicles parked on the property with

the broken gate , the proximately to the broken gate, the appellant’s

demeanor, the time of night, the appellant’s reactions and the items being

auto parts, the possession of which were only vaguely explained, the officer

had probable cause to believe that the appellant had committed theft and

was in possession of that stolen property. The trial court did not abuse its

discretion in finding probable cause to arrest the appellant and search the

vehicle and denying the motion to suppress.



                                           STATE'S BRIEF 12-14-00189-CR - PAGE 15
                            RESPONSE POINT 2:

THE TRIAL COURT DID NOT ERR IN ALLOWING EVIDENCE TO REBUT
TESTIMONY REGARDING THE APPELLANT’S LACK OF KNOWLEDGE.



      In his second ground, the appellant alleges that the trial court erred in

allowing character evidence to be admitted to rebut the appellant’s claim

that he did not the items in the vehicle were stolen.



                     A. DEFENSIVE THEORY AT TRIAL



      The arresting deputy testified to his observations regarding the

appellant’s arrest and to several statements made by the appellant. (RR

vol. 4, pp. ) Specifically, the appellant told Deputy Bowling that his girlfriend

had been looking fo help and that later on the vehicle had gotten stuck and

that “they” had gotten into a fight. (RR vol. 4, pp. 55-56) The appellant

states that the girlfriend later told him that his vehicle was either broken

down or stuck, or words to that effect. (RR vol. 4, p. 56) The appellant

claimed ownership of the car and never told the deputy that someone else

owned it or was purchasing it. (RR vol. 4, p. 56) The appellant claimed that

he had purchased some of the auto parts days prior to that evening and

                                             STATE'S BRIEF 12-14-00189-CR - PAGE 16
said that some of the parts were purchased that morning. (RR vol. 4, pp.

57-58) Later, after the actual owner of the auto parts had identified all of the

stolen items, the appellant told the deputy that he had purchased all of the

items from “Bobby” that morning. (RR vol. 4, p. 59) The appellant never

told the deputy that the parts belonged to or were purchased by a third

party. (RR vol. 4, p. 58)

      At trial, the appellant did not testify. (RR vol. 4, p. 3) However, he did

call his girlfriend to testify on his behalf. (RR vol. 4, p. 119) His girlfriend,

Colleen Williams, testified that she was buying the car driven by the

appellant the night he was arrested from the appellant. (RR vol. 4, pp. 121-

122) She also testified that she had possession of that car on the night the

appellant was arrested and that she was the one who had gotten the vehicle

stuck. (RR vol. 4, pp. 122-123) She also testified that she purchased the

auto parts from “Billy” and the defendant did not know about the auto parts,

of the car being at the location in question, or the car getting stuck in the

ditch. (RR vol. 4, pp. 125-137, 156)

      Ms. Williams was a convicted felon who has served time as a party to

the offense for which the appellant was also convicted. (RR vol. 4, pp. 138-

142, 147) Ms. Williams knew that she could not be prosecuted again for this



                                               STATE'S BRIEF 12-14-00189-CR - PAGE 17
offense no matter what she testified to in the appellant’s case. (RR vol. 4,

p. 147) Ms. Williams did not know “Billy’s” last name, but assumed that it

was permissible to go onto the property and remove items. (RR vol. 4, p.

149) Previously, under oath, Ms. Williams had testified that “somebody”

had given them permission to take items from the property. (RR vol. 4, p.

151) Ms. Williams’ honesty was also impeached with multiple theft

convictions. (RR vol. 4, pp. 152-154)

      Based on Ms. Williams’ testimony that the appellant had neither

knowledge or intent regarding the stolen auto parts alleged in this case, the

State sought to introduce the appellant’s priors for burglary for the sole

purpose of rebutting the defensive theories. (RR vol. 4, pp. 157-164) The

appellant objected to the testimony under rule 404(b) and asked for a

running objection to all questions regarding the appellant criminal history,

but never made an objection under Rule 403 regarding whether the

extraneous offense evidence would be more prejudicial than probative. (RR

vol. 4, pp. 163-166) Ms. Williams was asked about the appellant’s prior

burglaries and theft. (RR vol. 4, pp. 169-172) The jury was instructed that

they could only consider the evidence regarding the appellant’s prior

criminal history if they found beyond a reasonable doubt that the appellant



                                            STATE'S BRIEF 12-14-00189-CR - PAGE 18
actually committed those offenses and then only to determine the intent of

the defendant in connection with the current charges. (RR vol. 4, pp. 172-

173)



B. STANDARD OF REVIEW FOR ADMISSIBILITY OF PRIOR OFFENSES
       TO PROVE INTENT OR REBUT DEFENSIVE THEORY



       The appellate courts a trial court's admission of extraneous offense

evidence for an abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718

(Tex. Crim. App. 1996), opinion withdrawn in part on reconsideration (July

8, 1998) (op. on reh'g); Wolfberg v. State, 73 S.W.3d 441, 443 (Tex.

App.—Houston [1st Dist.] 2002, pet. ref’d) (Tex. App.-Houston [1st Dist.]

2002, pet. ref'd).Montgomery v. State, 810 S.W.2d 372, 39192 (Tex. Crim.

App. 1990), on reh’g (June 19, 1991)–92 (Tex. Crim. App.1991) (op. on

reh'g). Further, a trial court's decision regarding admissibility of evidence will

be sustained if correct on any theory of law applicable to the case, even

when the court's underlying reason for the decision is wrong. Romero, 800

S.W.2d, 543 (citing Spann v. State, 448 S.W.2d 128 (Tex. Crim. App.

1969)).

       Rule 404(b) states that evidence of extraneous offenses is not

                                             STATE'S BRIEF 12-14-00189-CR - PAGE 19
admissible at the guilt-innocence phase of a trial to prove that a defendant

committed the charged offense in conformity with a bad character. Tex. R.

Evid. 404(b); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992).

Extraneous offense evidence may be admissible, however, when it has

relevance beyond character-conformity, for example, to show proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. Id. ; Moses v. State, 105 S.W.3d 622, 626

(Tex. Crim. App. 2003). Rebuttal of a defensive theory is “one of the

permissible purposes for which relevant evidence may be admitted under

Tex. R. Evid. 404(b).” Moses, 105 S.W.3d at 626.

      As a general rule, the defensive theory that the State wishes to rebut

through the use of extraneous offense evidence must be elicited on direct

examination by defense and may not by elicited by “prompting or

maneuvering” by the State. Wheeler v. State, 67 S.W.3d 879, 885 (Tex.

Crim. App. 2002); Shipman v. State, 604 S.W.2d 182, 185 (Tex. Crim. App.

1980) (stating that State “may not rely on its own questioning” to get into

collateral matters, extraneous offenses, and bad acts that “would otherwise

be inadmissible”).




                                            STATE'S BRIEF 12-14-00189-CR - PAGE 20
 C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BECAUSE
 THE APPELLANT’S PRIORS WERE PROPERLY ADMITTED FOR THE
   PURPOSE OF REBUTTING THE DEFENSIVE THEOR THAT THE
         APPELLANT HAD NO INTENT TO POSSESS THE
                  STOLEN AUTO PARTS.



     The defensive theory that appellant lacked the intent to commit the

offense of theft was introduced into the case by the appellant when Colene

Williams attempted to assume sole responsibility for the purchase of the

stolen auto parts, and was subject, therefore, to rebuttal by the State. See

Tex. R. Evid. 404(b); Moses, 105 S.W.3d at 626. Specifically, Ms. William’s

testimony attempted to prove that she owned the car, she purchased the

auto parts, she got the car stuck in a ditch, and the appellant did not know

anything about anything.

     The trial court properly instructed the jury to only use the appellant’s

prior criminal history to determine the appellant’s intent. The extraneous

evidence had probative value beyond character conformity. Tex. R. Evid.

404(b). The extraneous offense evidence admitted to rebut a the defensive

theory of lack of intent was similar to the charged offense. Dennis v. State,

178 S.W.3d 172, 179 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d)

(holding that extraneous offense evidence admitted to rebut defensive


                                           STATE'S BRIEF 12-14-00189-CR - PAGE 21
theory of frame-up need not be signature crime or nearly identical to

charged offense; rule 404(b) requires only similarity to charge offense).

The fact that the appellant had committed and been convicted of several

burglaries and a theft proved he was much more knowledgeable than the

average person about the nature of stolen property. Certainly, he was too

knowledgeable to think that thousand’s of dollars of stolen property just

appeared in his car – or his ex-girlfriend’s car as Ms. Williams claimed.

Based on his prior burglaries and thefts, the appellant would have known

that auto parts, especially those concealed under a sheet or shower curtain,

in a vehicle parked next to multiple parked vehicles, on property where the

gate had been forced open, were suspicious.

      The appellant made no argument at trial that the probative value was

outweighed by any prejudicial effect. The jury was strictly instructed to only

consider the extraneous offenses if they believed the appellant committed

those offenses beyond a reasonable doubt and only to determine the

appellant’s intent in possessing the stolen auto parts. As such, the trial

court’s decision to allow the State to use the appellant’s extraneous

offenses for rebuttal purposes was not an abuse of discretion under Tex. R.

Evid. 404(b).



                                            STATE'S BRIEF 12-14-00189-CR - PAGE 22
                                  PRAYER



     WHEREFORE, the state respectfully prays this court affirm the

judgment and conviction herein.



Respectfully Submitted,
JOSEPH D. BROWN
CRIMINAL DISTRICT ATTORNEY

/s/ Karla Baugh Hackett
KARLA BAUGH HACKETT
ASSISTANT CRIMINAL DISTRICT ATTORNEY
GRAYSON COUNTY, TEXAS
200 S. CROCKETT ST.
SHERMAN, TX 75090
903/813-4361
903/892-9933 (fax)
baughk@co.grayson.tx.us (email)
TEXAS BAR NO. 01923400

ATTORNEY FOR THE STATE




                                        STATE'S BRIEF 12-14-00189-CR - PAGE 23
                    CERTIFICATE OF SERVICE

     This is to certify that a true and correct copy of the foregoing Motion

was mailed to:

                            DAVID ZEDLER
                  215 N. TRAVIS, SHERMAN, TX 75090


attorney of record for the Appellant, in accordance of the Rules of Appellate

Procedure, on March 4, 2015.



/s/ Karla Baugh Hackett
KARLA BAUGH HACKETT
ASSISTANT CRIMINAL DISTRICT ATTORNEY
GRAYSON COUNTY, TEXAS
200 S. CROCKETT ST.
SHERMAN, TX 75090
903/813-4361
903/892-9933 (fax)
baughk@co.grayson.tx.us (email)
TEXAS BAR NO. 01923400




                                           STATE'S BRIEF 12-14-00189-CR - PAGE 24
                   STATE’S CERTIFICATE OF COMPLIANCE




      I certify that this document contains        4,085      words, exclusive of

the caption, the identity of parties and counsel, the statement regarding oral

argument, the table of contents, the index of authorities, the statement of

the case, the statement of issues presented, the statement of jurisdiction,

the statement of procedural history, the signature, the proof of service, the

certification, the certificate of compliance, and the appendix.



/s/ Karla Baugh Hackett                                     March 4, 2015

KARLA BAUGH HACKETT
ASSISTANT CRIMINAL DISTRICT ATTORNEY
GRAYSON COUNTY, TEXAS
200 S. CROCKETT ST.
SHERMAN, TX 75090
903/813-4361
903/892-9933 (fax)
baughk@co.grayson.tx.us (email)
TEXAS BAR NO. 01923400




                                              STATE'S BRIEF 12-14-00189-CR - PAGE 25
