                                                                    ACCEPTED
                                                                12-15-00017-CR
                                                   TWELFTH COURT OF APPEALS
                                                                 TYLER, TEXAS
                                                          10/5/2015 10:00:26 PM
                                                                      Pam Estes
                                                                         CLERK

    CAUSE NUMBER 12-15-00017-CR

                                          RECEIVED IN
                                    12th COURT OF APPEALS
  IN THE   COURT OF APPEALS FOR THE      TYLER, TEXAS
                                    10/5/2015 10:00:26 PM
TWELFTH    APPELLATE DISTRICT OF TEXAS PAM ESTES
                                             Clerk

                AT TYLER
                                                10/5/2015


      ARTHUR JAMES WILLIAMS

                    VS.

           THE STATE OF TEXAS



           CAUSE NUMBER 31,592

 IN THE 3RD JUDICIAL DISTRICT COURT

     ANDERSON COUNTY, TEXAS


           APPELLANT'S BRIEF


                  Colin D. McFall
                  Attorney at Law
                  513 North Church Street
                  Palestine, Texas 75801-2962
                  Telephone: 903-723-1923
                  Facsimile: 903-723-0269
                  Email:       cmcfall@mcfall-law-office.com
                  Counsel for Appellant
                                                                                 SIOZ-S0-0I
                  IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Rule 38.1 (a), Texas Rules of Appellate Procedure, Appelhnt

provides a complete list ofall parties and the names and addresses of Counsel:

Defendant:                      Arthur James Williams
                                1200 East Lacy Street
                                Palestine, Texas 75801

Defendant's Trial Counsel:      Colin D. McFall
                                Attorney at Law
                                513 North Church Street
                                Palestine, Texas 75801-2962
                                Telephone: 903-723-1923
                                Facsimile: 903-723-0269

State's Trial Counsel:          Stanley Sokolowski
                                First Assistant Criminal District Attorney
                                Anderson County Courthouse
                                500 North Church Street
                                Palestine, Texas 75801
                                Telephone: 903-723-7400
                                Facsimile: 903-723-7818
                                                      SIOZ-S0-0I
Appellant:             Arthur James Williams
                       Estelle Unit
                       264 F.M. 3478
                       Huntsville, Texas 77320-3320

Appellant's Counsel:   Colin D. McFall
                       Attorney at Law
                       513 North Church Street
                       Palestine, Texas 75801-2962
                       Telephone: 903-723-1923
                       Facsimile: 903-723-0269

Appellee's Counsel:    Allyson Mitchell
                       Criminal District Attorney
                       Anderson County Courthouse
                       500 North Church Street
                       Palestine, Texas 75801
                       Telephone: 903-723-7400
                       Facsimile: 903-723-7818
                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                            2

TABLE OF CONTENTS                                          4

INDEX OF AUTHORITIES                                       5

STATEMENT OF THE CASE                                      7

STATEMENT REGARDING ORAL ARGUMENT                          .8

IS SUES PRESENTED

    I. THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A

         CONVICTION FOR BURGLARY OF A HABITATION...    9

STATEMENT OF FACTS                                         10

SUMMARY OF THE ARGUMENT                                12

ARGUMENT                                               14

PRAYER                                                 19

CERTIFICATE OF COMPLIANCE                              20

CERTIFICATE OF SERVICE                                 21
                                                                                  SIOZ-S0-0I
                       INDEX OF AUTHORITIES

CASES                                                           PAGE

    FEDERAL

        Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

              (1979)                                                       ..14

    TEXAS

        Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010)                 14

        Cirul v. State, 863 TexoCrim. 8, 200 S.W. 1088, 1089 (1918)         17

        De Vaughn v. State, 749 S.W.2d 62 (Tex.CrimApp.1988)                17

        Dovalina v. State, 564 S.W.2d 378, 380 (TexCrim.App.1978)          ..17

        Gibbons v. State, 643 S.W.2d 700, 707 (Tex.Crim.App.1982). ..... ..17

        Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App.2007)                   14

        Isassi v. State, 330 S.W.3d 633 (Tex.Crim.App.2010)                 15

        Montgomery v. State, 369 S.W.3d 188 (Tex.Crim.App.2012)             15
                                                                          SIOZ-S0-0I
RULES AND STATUTES                                            PAGE

    TEXAS PENAL CODE

        Section 15.01(a), Texas Penal Code                           17

        Section 30.02(a), Texas Penal Code                           15

        Section 30.02(a) (1), Texas Penal Code                       15

        Section 30.02(a) (3), Texas Penal Code                       16

    TEXAS RULES OF APPELLATE PROCEDURE

        Rule 9.4(i) (3), Texas Rules of Appellate Procedure          20

        Rule 3 8.1(a), Texas Rules ofAppellate Procedure              2

        Rule 38.1(e), Texas Rules of Appellate Procedure              8




                                   ze
                          STATEMENT OF THE CASE

      On the 16th day of January 2014, an Anderson County Grand Juryreturned a

single count Indictment, charging Appellant, in two alternative means, with

Burglary of a Habitation (C.R., Vol. 1, Pg. 6).

      On the 4th day of November 2014, Appellant plead not guilty to a single

count of Burglary of a Habitation (R.R., Vol. 3, Pg. 13, L. 21). Later that same

day, the jury found Appellant guilty of the single count of Forgery. (R.R., Vol. 3,

Pg. 140, L. 24).

      On the 19th day of December 2014, the Court sentencedAppellant to thirty

(30) years confinement in the Texas Department of Criminal Justice, Institutional

Division. (R.R., Vol. 4, Pg. 39, L. 6).




                                            7
             STATEMENT REGARDING ORAL ARGUMENT

     Pursuant to Rule 38.1 (e), Texas Rules of Appellate Procedure, Appellant

provides the following Statement Regarding Oral Argument

     Appellant does not request Oral Argument
                                          SIOZ-S0-0I
              ISSUE PRESENTED

THE EVIDENCE IS LEGALLY INSUFFICIENT TO

SUPPORT A CONVICTION FOR BURGLARY OF A

HABITATION.
                                STATEMENT OF FACTS

      JoAnn Morris (R.R., Vol. 3, F'g. 20, L. 12) and her husband (R.R., Vol. 3, Pg.

20, L. 24), Phillip Morris (R.R., Vol. 3, Pg. 21, L. 1), lived at 901 North Sycamore

(R.R., Vol. 3, Pg. 20, L. 17), Anderson County (R.R., Vol. 3, Pg. 21, L. 24), Texas.

(R.R., Vol. 3, Pg. 22, L. 1).

      On the 28th day of June 2013 (R.R., Vol. 3, Pg. 41, L. 3) Officer Heavner

(R.R., Vol. 3, Pg. 40, L. 11) responded to an alarm at 901 North Sycamore (R.R.,

Vol. 3, Pg. 41, L. 10). Officer Heavner approached the garage(R.R. Vol. 3, Pg.

41, L. 25), opened the garage door and saw Appellant inside the garage with tools

in his hands. (R.R., Vol. 3, Pg. 42, L. 2) (R.R., Vol. 3, Pg. 43, L. 4). Officer

Heavner pushed the door open, Appellant pushed back, and Officer:Heavner kicked

the door. (R.R., Vol. 3, Pg. 43, L. 4). Appellant and the tools fell to the ground

(R.R., Vol. 3, Pg. 43, L. 6). Officer Heavner placed Appellant under arrest (R.R.,

Vol. 3, F'g. 44, L. 14).

       At trial, Ms. Morris testified thatMr. Morris told her (R.R., Vol. 3, Pg. 27, L.

17) the scratches on the door(R.R., Vol. 3, Pg. 27, L. 14) were "pry marks." (R.R.,

Vol. 3, F'g. 32, L. 2). Ms. Morris also testified that the sVratches on the door (R.R.,

Vol. 3, F'g. 27, L. 14) had not been on the door before(R.R., Vol. 3, Pg. 27, L. 20)

(R.R., Vol. 3, Pg. 38, L. 7), although Ms. Morris admitted that she had never
actually looked for marks on the door before. (R.R., Vol. 3, Pg. 38, L. 9). State's

Exhibit 6 (R.R., Vol. 3, Pg. 31, L. 14), demonstrates the location of the "pry marks"

(R.R., Vol. 3, Pg. 32, L. 2) (R.R., Vol. 3, Pg. 37, L. 21), below the color (R.R., Vol.

3, Pg. 32, L. 2), (R.R., Vol. 3, Pg. 32, L. 5), (R.R., Vol. 3, Pg. 32, L. 7), below the

green marks. (R.R., Vol. 3, Pg. 37, L. 16), (R.R., Vol. 3, Pg. 37, L. 18). Much like

the "pry marks," Ms. Morris had never noticed the green markson the door before.

(R.R., Vol. 3, Pg. 38, L. 14).

       In contrast, Officer Heavner testified the "pry marks" were exhibited by

State's Exhibit 4, belowwhere the doorknob connects to thedoorframe, where the

paint is scuffed (R.R., Vol. 3, Pg. 47, L. 23) (R.R., Vol. 3, Pg. 57, L. 22), (R.R.,

Vol. 3, Pg. 58, L. 3) and were not pictured in State's Exhibit 6. (R.R., Vol. 3, Pg.

48, L. 5). Officer Heavner later testified that there was in fact "pry marks" in

State's Exhibit 6 (R.R., Vol. 3, Pg. 55, L. 3), below the green marks (R.R., Vol. 3,

Pg. 55, L. 6). Officer Heavner also testified there were "pry marks" in State's

Exhibit :5. (R.R., Vol. 3, Pg. 57, L. 24) (R.R., Vol. 3, Pg. 28, L. 9).

       Appellant testified that he entered the garage of Ms. Morris to hide from a

group of individual who had just robbed and assaulted him (R.R., Vol. 3, Pg. 77, L.

12).
                        SUMMARY OF THE ARGUMENT

             THE EVIDENCE IS LEGALLY INSUFFICIENT TO

             SUPPORT A CONVICTION FOR BURGLARY OF A

             HABITATION.

       The legal sufficiency standard is the only standard a reviewing Court should

apply in determining whether the evidence is sufficient to support a guilty vaict.

The critical inquiry is, in viewing the evidence in the light most favorable to the

prosecution after a verdict of guilt, whether any rational jury could have found the

essential elements of the crime beyond a reasonabledoubt.

      Each fact does not need to directly and independently point to the guilt of the

Appellant as long as the cumulative force of all the incriminating circumstances is

ultimately sufficient to support theconviction.

      When performing a legal sufficiency review,Courts may riot reevaluate the

weight and credibility of the evidence and substitute their own judgment for that of

the jury. When faced with record supporting contradictory inferences we presume

the jury resolved conflicts in favor of the verdict.

      A person commits the offense ofBurglary of a Habitation if, without the

effective consent of the owner, the person enters a habitation, or a building (or any

portion of a building) not then open to the public, with intent to commit theft or
                                                                           SIOZ-S0-0I
enters a building or habitation and commits or attempts to commit theft.
                                  ARGUMENT

            THE EVIDENCE IS LEGALLY INSUFFICIENT TO

             SUPPORT A CONVICTION FOR BURGLARY OF A

            HABITATION.

      The legal sufficiency standard is the only standard a reviewingCourt should

apply in determining whether the evidence is sufficient to support a guilty verdict

Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010). Thecritical inquiry is,

in viewing the evidence in the light most favorable to the prosecution after verdict

of guilt, whether any rational jury could have found the essential elements of the

crime beyond a reasonabledoubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979);Brooks v. State, 323 S.W.3d 893, 912

(Tex.Crim.App.2010) (Holding that all Texas criminal cases are only to be

reviewed under the standard announced inJackson v. Virginia, 443 U.S. 307, 319,

99 S.Cto 2781, 61 L.Ed.2d 560 (1979)

      Each fact does not need to directly and independently point to the guilt of the

Appellant as long as the cumulative force of all the incriminating circumstances is

ultimately sufficient to support theconviction. Circumstantial evidenceis equally

as probative as direct evidence in establishing guilt, and circumstantial evidence

alone can be sufficient to support aconviction. Hooper v. State, 214 S.W.3d 9, 13
(Tex.Cri m.App.20 0 7).

        When performing a legal sufficiency review, Courts may not reevaluate the

weight and credibility of the evidence and substitute their own judgment for that of

the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex.Crim.App.2012); see also

Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010) ("[O]ur role is not to

become a thirteenth juror."). When facedwith record supporting contradictory

inferences, we presume the jury resolved conflicts in favor of the verdict.

Montgomery v. State, 369 S.W.3d 188, 192 (Tex.Crim.App.2012)

        A person commits the offense of Burglary of a Habitation if, without the

effective consent of the owner, the person enters a habitation,or a building (or any

portion of a building) not then open to the public, with intent to commit theft or

enters a building or habitation and commits or attempts to ommit theft. See Section

30.02(a), Texas Penal Code.

                       Section 30.02(a) (1), Texas Penal Code

        A person commits an offense if, without the effective consent of the owner,

the person enters a habitation, or a building (or any portion of a building) not then

open to the public, with intent to commit theft Section 30.02(a) (1), Texas Penal

Code.

        The only evidence presented at trial thatarguably addressed Appellant's
intent to commit theft as he entered the habitation of Phillip Morris., on the 2g

night of June 2013, is the conflicting testimony egarding the scratches a- "pry

marks". Ms. Morris identified different marks on the door than Officer Heavner

identified as "pry marks". In fact, Ms. Morris did not recognize anything on the

door as "pry marks", until her late husband informed her fiat there were "pry

marks" on the door. However, Officer Heavner identified completely different

marks on the door as "pry marks." Officer Heavner even denied some marks were

"pry marks" until he was informed, that Ms. Morris had identified a completely

different mark as a "pry mark." Even after reviewing the evidence in the light most

favorable to the prosecution no rational jury could have found the essential

elements ofBurglary of a Habitationbeyond a reasonable doubt. The conflicting

and dubious testimony regarding the timing, origin and causation of the marks on

the door, fail to evidence that Appellant possessed an intent to commit theft, when

he entered the garage of Mr. Morris. As a result, norational jury could have found

the essential elements ofBurglary of a Habitation beyond a reasonable doubt.

                      Section 30.02(a) (3), Texas Penal Code

      A person commits the offense if, without the effective consent of the owner,

the person, enters a building or habitation and commits or attempts to commit theft

Section 30.02(a) (3), Texas Penal Code.




                                          (z(
      It is undisputed that no theft actually occurred. Therefore,Appellee must

prove Appellant attempted to commit theft.

      Criminal attempt is defined as follows: "A person commits an offense if, with

specific intent to commit an offense, he does an act amouting to more than mere

preparation that tends but fails to effect the commission of the offense intended."

Section 15.01(a), Texas Penal Code. An attempt implies both an intent and an

active effort to carry out and consummate the intent or purposeDovalina v. State,

564 S.W.2d 378, 380 (Tex.Crim.App.1978). "Attempt" is more comprehensive than

"intent,' implying both a purpose and actual effort to carry that purpose into

execution. Cirul v. State, 83 Tex.Crim. 8, 200 S.W. 1088, 1089 (1918). In any

attempted criminal offense, the sufficiency of the evidence must be determined on a

case-by-case basis. Gibbons v. State, 634 S.W.2d 700, 707 (Tex.Crim.App.1982).

Conviction for an attempted criminal offense does not require accomplishment of

every act short of actual commission of the offense.Id. at 706. However,

Appellant must prove that after appellant's burglarious entry he attempted to steal

property. Therefore, under the holding inDe Vaughn v. State, 749 S. W.2d 62

(Tex.Crim.App.1988), in proving the element of attempted theft, the State must

prove that appellant had a specific intent to steal a particular article of property
                                                                                      SIOZ-S0-0I
and that the accused engaged in anact that amounted to more than merepreparation

that tended to accomplishhis intent to steal that particular article of property.

      Appellant's possession of two tools in Appellants arms,while still inside the

garage, amounts to nothing more thanmere preparation, and does not tend to

accomplish an intent to steal Mere preparation falls short ofattempt. Failing to

prove attempt beyond a reasonable doubt, meansno rational jury could have found

the essential elements ofBurglary of a Habitation.




                                             1 s).
                                                                                      SIOZ-S0-0I
                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays the Appellate

Court find the evidence is legally insufficient to supportBurglary of a Habitation,

reverse Appellant's conviction and render a judgment acquitting him ofsaid

Burglary of a Habitation
                                                                                 SIOZ-S0-0I
                     CERTIFICATE OF COMPLIANCE

      I, Colin D. McFall, Attorney of Record for the above styled Appellant,

pursuant to Rule 9.400, Texas Rules of Appellate Procedure, hereby certify the

number of words within Appellant's Brief attwo thousand, four hundred, thirty

seven (2,437).

RESPECTFULLY SUBMITTED,


                                  513 North Church Street
                                  Palestine, Texas 75801-2962
COLIN D. FALL                     Telephone: 903-723-1923
Attorney at Law                   Facsimile: 903-723-0269
Texas Bar Number:       24027498 Email: cmcfall@mcfall-law-office.com




                                          aCt
                                                                               SIOZ-S0-0I
                         CERTIFICATE OF SERVICE

      I, Colin D. McFall, Attorney of Record for the above styled Appellant,

hereby certify service of a true and correct copy of the above and foreging

document upon Anderson County Assistant Criminal District AttorneyScott

Holden, at sholden@co.anderson.tx.u4 by email transmission, on the5th day of

October 2015.

RESPECTFULLY SUBMITTED,


                                   513 North Church Street
                                   Palestine, Texas 75801-2962
COLIN D.      FALL                 Telephone: 903-723-1923
Attorney at Law                    Facsimile: 903-723-0269
Texas Bar Number:        24027498 Email: cmcfall@mcfall-law.-office.com
