                                                                                    ACCEPTED
                                                                                06-15-00063-CR
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                          10/30/2015 4:27:33 PM
                                                                               DEBBIE AUTREY
                                                                                         CLERK

                        NO. 06-15-00063-CR

                                                               FILED IN
                       **************                   6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
                                                        10/30/2015 4:27:33 PM
                    IN THE COURT OF APPEALS                  DEBBIE AUTREY
                                                                 Clerk
              SIXTH APPELLATE DISTRICT OF TEXAS
                       TEXARKANA TEXAS



                          **********

                    DESMOND JUWON WOODS,
                                    Appellant
                                 VS.
                      THE STATE OF TEXAS,
                                      Appellee
                          **********


                    Appealed from the 76TH District Court
                        Morris County, Texas
                     Trial Court No. 10,920-CR
__________________________________________________________________

                      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.06-15-00063-CR



                       DESMOND JUWON WOODS,
                                       Appellant
                                     VS.

                          THE STATE OF TEXAS,
                                          Appellee


__________________________________________________________________

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

Appellant:        DESMOND JUWON WOODS           Hutchins State Jail
                  Inmate #1996056               Dallas, Texas 75241
Appellant's       JERRY PRATT JR.               603 Broadnax
trial counsel:    Attorney at Law               Daingerfield, Texas 75638

State's trial     STEVE COWAN                   500 Broadnax
counsel:          Morris County Attorney        Daingerfield, Texas 75638

Trial Judge:      DANNY WOODSON                 P.O. Box 399
                  District Judge                Mt. Pleasant, Texas 75456

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

State's counsel   STEVE COWAN                   500 Broadnax
on appeal:        Morris County Attorney        Daingerfield, Texas 75638




                                 Page 1 of 14
                                         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 RESTATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
         Is there sufficient evidence to sustain the judgment of conviction?
         SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

         ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
.CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                    Page 2 of 14
                                        INDEX OF AUTHORITIES
Cases

Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987) . . . . . . . . . . . . . . . . .13
Bell v. State, 326 S.W.3d 716, 720 (Tex.App. - Dallas 2010, pet. dism’d) . . . . . . . . . 11

Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . . . . . 11
Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . . . .13

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . .11,12,13

Horton v. State, 394 S.W.3d 589, 592 (Tex.App. - Dallas 2012, no pet.) . . . . . . . . . . .12
Jackson v. Virginia, 443 U.S. 307, 319 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997) . . . . . . . . . . . . . . . . . . . . 12
Robertson v. State, 888 S.W.2d 493 (Tex.App. - Amarillo 1994 pet. ref’d) . . . . . . . . .13

Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012) . . . . . . . . . . . . . . . . . . . . . 13
Statutes

Penal Code §28.03(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Penal Code §28.06(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12




     All references to Texas statutes, rules, etc. are to the latest edition published by
West Publishing Company, unless otherwise indicated.




                                                     Page 3 of 14
                         STATEMENT OF THE CASE
      This is an appeal for conviction for felony criminal mischief. DESMOND

JUWON WOODS was tried and convicted by a jury. The court then assessed
punishment at eight (8) years confinement. CR-108.

      This case is a companion case to No. 06-15-00068-CR pending in this court
wherein DESMOND JUWON WOODS was convicted of felony theft of copper and

assessed punishment of 2 years in state jail. The cases were tried together and the

sentences run concurrently.
      The State is referred to as the State and the Appellant is referred to as the
defendant, the Appellant, or Woods.



                              ISSUE PRESENTED

      Is there sufficient evidence to sustain the judgment of conviction?




                                   Page 4 of 14
                           STATEMENT OF FACTS
HERSHEL STROMAN

      Hershel Stroman testified for the State. Deputy Stroman was a deputy sheriff

for Morris County. 3 RR 32. Deputy Stroman testified that he took a call from Mrs.
Bullock on December 24, 2012 regarding her chicken houses and missing copper

wiring. 3 RR 34. He stated that Mrs. Bullock reported that her copper wire had been

taken from her chicken houses. He said that Mrs. Bullock had six chicken houses and

that four of them were vandalized and the copper was removed. 3 RR 35. Deputy
Stroman met Mrs. Bullock at the scene and she told him that someone had stripped
the wire out of her chicken houses. He found vandalism and evidence of theft at the
scene. 3 RR 44. He testified that there were wires where the copper was cut. He also

stated that there was yellow styrofoam insulation in the buildings. 3 RR 45. The
yellow foam covered the wires. 3 RR 46. Deputy Stroman testified that the wire was

cut in numerous different spots. 3 RR 47. Deputy Stroman testified that he searched
around the outside of the chicken houses. 3 RR 49. He stated that he followed a
foam trail through the woods. 3 RR 52-53. He testified that there was a fence line

with styrofoam insulation at the fence and several bits of styrofoam where the wire

would have been pulled through the fence. 3 RR 55. He stated that there were bits
of styrofoam stuck to a fence post. 3 RR 56. Deputy Stroman testified that the

styrofoam trail led him to 585 County Road 1231, the home of Desmond Woods. He

stated that Mr. Woods’s house is approximately one-half to three-quarters of a mile
from Mrs. Bullock’s chicken houses. He said that he followed the foam trail from

Mrs. Bullock’s farm to Mr. Woods’s house. Deputy Stroman said there was a burn

pile located at the residence of 585 County Road 1231 with styrofoam insulation

                                    Page 5 of 14
with pieces in it. 3 RR 58. He confirmed that it was the same type of styrofoam

insulation that he had been trailing and that the trail led him directly to the burn

pile. 3 RR 59. He went on to say that there were other burned areas beside the

house. He testified that there was a 3500 Chevrolet truck, license plate AD2-2120
or AU2-2120 at the house. 3 RR 60. Deputy Stroman testified that after he

walked through the woods to the burn pile, he went Road 1231. He said that he

knew that to be the residence of Desmond Woods. He stated that he knocked on

the door but no one answered. He said he then took photos of the burn pile and
backyard. 3 RR 63-64.
      Deputy Stroman testified that he made efforts to determine what happened to
the copper that was stolen. He said that he went to Daingerfield Iron & Metal and

made contact with Mike and Jessica Rice, the owners. He stated that to his
knowledge there were only two places in Morris County that can buy copper,

Daingerfield Iron & Metal and John’s scrap. He said that he inquired about copper
purchases at Daingerfield Iron & Metal. 3 RR 64. Deputy Stroman testified that he
ascertained that Mr. Woods had made copper sales to Daingerfield Iron in the time

period of November and December and that Daingerfield Iron still had some of the

iron it had just bought from Mr. Woods. He said that he went to Daingerfield Iron
on December 24th. 3 RR 65. Deputy Stroman stated that the wire Daingerfield Iron

had on hand that it had recently purchased from Mr. Woods was a different gauge and

style of wire than the wire that was stolen from Mrs. Bullock’s chicken houses. 3 RR

67. He said that this wire was significant because it appeared to be burned. 3 RR 66.

Deputy Stroman testified that he then did an affidavit and requested a warrant for Mr.

Woods’s arrest for the theft of copper. 3 RR 68. Deputy Stroman stated that he


                                     Page 6 of 14
arrested Mr. Woods on December 26th. 3 RR 69.

      Deputy Stroman testified that he took Mr. Woods into custody for the copper

theft, read him his Miranda rights, but did not obtain a written statement. 3 RR 70.

He said that he interviewed Mr. Woods on the 26th in his office at the Morris County

sheriff’s office but did not obtain a recorded statement. 3 RR 71.
      Deputy Stroman testified that according to the Rice’s records, Mr. Woods had

made substantial sales of copper from November 20, 2012, throughout November and

December up until the time of the burglary. He said that according to those records

several hundred pounds of copper was purchased by the scrap yard. 3 RR 74. Deputy
Stroman testified that there was a receipt, signed by Mr. Woods on November 27,
2012. The receipt included Mr. Woods’s license number and identified a vehicle as

a Chevy, model 3500, color gray, license plate number AU2-2120. The receipt
reflected that Daingerfield Iron purchased metal from Mr. Woods on November 27,

2012, including twenty-four pounds of #1 copper. Deputy Stroman testified that the
records reflected that on November 20th, Daingerfield Iron had purchased 142
pounds of #1 copper from Mr. Woods. He stated that on November 21st, Daingerfield

Iron purchased 75 pounds of #1 copper from Mr. Woods. 3 RR 7. He said that

records further reflected that on November 23rd, Daingerfield Iron purchased 24

pounds of #1 copper. On November 27th, Daingerfield Iron purchased four pounds
of copper from Mr. Woods. He said that on November 30th, Daingerfield Iron

purchased seventeen pounds from Mr. Woods. On December 12th, Daingerfield Iron
purchased twelve pounds of #1 copper from Mr. Woods. Deputy Stroman testified

that on December 14th, Daingerfield Iron purchased twenty-four pounds of copper

from Mr. Woods. On December 17th, Daingerfield Iron purchased two pounds of


                                    Page 7 of 14
copper from Mr. Woods. On December 18th, Daingerfield Iron purchased five

pounds of copper from Mr. Woods. 3 RR 76. He confirmed that on December 20th,

Daingerfield Iron purchased ten pounds of #1 copper from Desmond Woods. 3 RR
77.

On cross examination, Deputy Stroman testified that he did not determine how much
wire was taken from the chicken houses. He said that he did determine that the house

had not had chickens in it in over a month. He stated that he did not check the date,

but only went by Mrs. Bullock’s word. He said that he did not really know when the
copper could have come out. 3 RR 84. Deputy Stroman testified that he spoke with
Robin Allen and she said that she saw a tall man with a black shirt on around the
chicken houses on approximately December 19th. He said that she told him further

than she checked the houses but did not see anything. 3 RR 92. Deputy Stroman
stated that he did not know the gauge of the wire that was taken out of the chicken

houses. 3 RR 93.
      On redirect examination, Deputy Stroman testified that the copper stolen was
100% copper. 3 RR 106.

      During re-cross examination, Deputy Stroman testified that he was not aware

of any copper tubing having been taken out of the chicken houses and that he did not
report any copper tubing being taken out. 3 RR 107.

RANDY ACKER

      Randy Acker testified for the State. He was the owner of Acker Poultry Supply
in Pittsburg, Texas. 3 RR 111. He said that he builds poultry houses and equips

poultry houses. He said that he also repairs poultry houses and gives estimates on

damaged poultry houses when vandalized. He testified that he and one of his workers


                                    Page 8 of 14
went out to Mrs. Bullock’s farm to look at the damage that had been done to her

chicken houses. 3 RR 112. He said that Ricky Richardson took the measurements

of what repairs needed to be done. 3 RR 112-113. He said that he made the repairs

and the estimate was $23,423.05. 3 RR 113. He stated that the repairs to house
number one totaled $6,046.43. The repairs to house number three totaled $6,046.43.

The repairs to house number four totaled $6,046.43. The repairs to house number two

totaled $9,283.76. 3 RR 114. Mr. Acker testified that the total cost of the repairs was

over $27,000. 3 RR 115.
      On cross examination, Mr. Acker testified that approximately 4,070 feet of wire
was taken out of each house. He said it was 12/2 Romex with gound; twelve guage.
3 RR 116.

      On re-direct examination, Mr. Acker testified that he knew how much wire he
had to replace, but did not know how much wire was taken out of the chicken houses.

3 RR 119.
MIKE RICE

      Mike Rice testified for the State. He was the owner of Daingerfield Iron and

Metal scrap yard. 3 RR 122. He said that his wife, Jessica Rice, also owns and works

at the scrap yard. He said that he knows Desmond Woods and that Mr. Woods has

sold copper to his business. 3 RR 123. Mr. Rice testified to the number of pounds
of copper Mr. Woods sold to him in November and December. 3 RR 126. Mr. Rice

stated that #1 copper will be bigger than a pencil lead in wire or copper tubing. He

said this type of copper could be more than 50% copper. 3 RR 130. Mr. Rice

testified that Mr. Woods sold him wire on December 24th, but it was not the kind of

wire that came out of the chicken houses. 3 RR 135.


                                     Page 9 of 14
ALICE BULLOCK
      Alice Bullock testified for the State. Mrs. Bullock testified that she called the

sheriff’s department on December 24, 2012 because she had no power in four of her
chicken houses. 3 RR 140. She said that she had been without chickens for over a

month or more; that the last chickens went out in the middle of November. 3 RR 141.

She said that she had not had any reason to be in the chicken houses that had been
vandalized since the chickens went out. 3 RR 142. She said that the wires were
stripped and clipped then jerked off the wall and drug out the back door. 3 RR 143.

Mrs. Bullock testified that when she found out she had no power she called Mr.
Acker who sent two men out to repair it. The men found that she had no electrical

wiring and that was why she had no power. She said that she then called the sheriff.
      Mrs. Bullock testified that when Officer Stroman arrived they walked around
the chicken house to the back and found a trail of pieces of foam and followed the

foam across her property into neighboring property. 3 RR 145.




                                    Page 10 of 14
                                 ISSUE RESTATED
       Is there sufficient evidence to sustain the judgment of conviction?


                        SUMMARY OF THE ARGUMENT

       There is no testimony by any State’s witness that connects appellant to any

damage of the Bullock chicken houses. The defendant’s possible presence at or near
the scene of the crime, without other evidence linking him to commission of the

damage in question, is not sufficent to prove beyond a reasonable doubt the defendant
committed criminal mischief. A finding of guilt based on nothing more than mere

speculation should be reversed and a judgment of aquittal rendered.


                       ARGUMENT AND AUTHORITIES

       In reviewing the legal sufficiency of the evidence, this count reviews all the

evidence 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, pet. dism’d) (citing Brooks, 323 S.W.3d at 898). Legal sufficiency

is analyzed 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).


                                      Page 11 of 14
      Legal sufficiency of the evidence is measured by the elements of the offense

as defined by the “hypothetically correct jury charge.” Malik v. State, 953 S.W.2d
234, 240 (Tex.Crim.App. 1997); Horton v. State, 394 S.W.3d 589, 592 (Tex.App. -

Dallas 2012, no pet.) . The hypothetically correct jury charge “accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s

burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.”
Horton, 394 S.W.3d at 592 (quoting Malik, 953 S.W.2d at 240).
      A person commits criminal mischief by damage or destruction if he

intentionally or knowingly damages or destroys the tangible property of an owner
without the owner’s consent. Penal Code §28.03(a)(1). The amount of pecuniary

loss to the owner determines the degree of the offense. If the property is damaged,
the pecuniary loss is “the cost of repairing or restoring the damaged property within

a reasonable time after the damage occurred.”              Penal Code       §28.06(b).
      Deputy Stroman followed a trail of insulation from the chicken houses over the
hills and through the woods to the rear of a residence at 585 CR 1231 in Morris

County. He saw a burn pile with foam scrap and saw a pickup truck with the same
license number as a truck driven by the appellant when he sold scrap metal to

Daingerfield Iron and Metal. The address in question appeared on a number of
official law enforcement records concerning the appellant.

      But a mailing address is often a matter of convenience. A license plate number

identifies the owner of a certain vehicle, but not the whereabouts of that vehicle or

any particular driver or its use for any particular purpose on any given occasion.

      Because factfinders are permitted to make reasonable inferences, both direct

and circumstantial evidence are probative to a case and it is possible for

circumstantial evidence alone to be enough to establish guilt. Hooper v. State, 214
                                     Page 12 of 14
S.W.3d 9, 14-15 (Tex.Crim.App. 2007); Guevara v. State, 152 S.W.3d 45, 49

(Tex.Crim.App. 2004). The standard of review for sufficiency of the evidence is the
same whether the evidence is direct or circumstantial. Wise v. State, 364 S.W.3d 900,

903 (Tex.Crim.App. 2012). Not every fact presented must directly indicate the

defendant is guilty, but the cumulative force of the evidence can be sufficient to

support a finding of guilt. Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App.

1987). Mere possible presence at the scene of the crime is insufficient to support a
conviction . See Robertson v. State, 888 S.W.2d 493 (Tex.App. - Amarillo 1994 pet
ref’d).

          A strong suspicion or mere probability of guilt are insufficient. In examining
the evidence, factfinders are not permitted to make conclusions based on unsupported

inferences or to guess at the possible meaning of a piece of evidence. Hooper, 214
S.W.3d at 15-16. While such a guess may be a reasonable one, it is not sufficient to

support a finding of an element beyond a reasonable doubt because it is not based on
facts. The evidence as to criminal mischief is much less than for theft of copper.
Argument and inference are not enough to sustain a conviction.




                                       Page 13 of 14
                                     PRAYER
      Upon the issue presented, the judgment of the trial court should be reversed and

a judgment of acquittal rendered.




                                       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



                                       /s/ Ebb B. Mobley
                                       EBB B. MOBLEY
                                       State Bar # 14238000

                                       ATTORNEY FOR APPELLANT

                      CERTIFICATE OF COMPLIANCE

      I certify that this brief contains 3224 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 was provided to Steve Cowan, Morris County Attorney,
500 Broadnax, Daingerfield, Texas 75638 on the 30th day of October, 2015, by e-file.


                                       /s/ Ebb B. Mobley
                                       EBB B. MOBLEY




                                    Page 14 of 14
