                                                                                 ACCEPTED
                                                                             04-15-00265-CR
                                                                 FOURTH COURT OF APPEALS
                                                                      SAN ANTONIO, TEXAS
                                                                        7/21/2015 1:56:29 PM
                                                                              KEITH HOTTLE
                                                                                      CLERK

            NOS. 04-15-00265-CR & 04-15-00266-CR

                IN THE COURT OF APPEALS                 FILED IN
                                                 4th COURT OF APPEALS
                                                  SAN ANTONIO, TEXAS
                          FOR THE                7/21/2015 1:56:29 PM
                                                   KEITH E. HOTTLE
          FOURTH COURT OF APPEALS          DISTRICT      Clerk


                         OF TEXAS

                   SAN ANTONIO, TEXAS


              ARESTEDE JAMES TREADWAY,
                       Appellant

                             VS.

                   THE STATE OF TEXAS,
                         Appellee

        Trial Cause Nos. 2013-CR-11505 & 2013-CR-11506
              Appeal from the 175th District Court of
                      Bexar County, Texas
                  Hon. Mary Roman, Presiding

                  BRIEF FOR APPELLANT

                                   MICHAEL D. ROBBINS
                                   Assistant Public Defender
                                   Paul Elizondo Tower
                                   101 W. Nueva St., Suite 370
                                   San Antonio, Texas 78205
ORAL ARGUMENT                      (210) 335-0701
NOT REQUESTED                      FAX (210) 335-0707
                                   mrobbins@bexar.org
                                   Bar No. 16984600

                                   ATTORNEY FOR
                                   APPELLANT

                              i
                          Identity of Parties and Counsel

      Pursuant to TEX. R. APP. P. 38.1(a) (West 2015), the parties to this suit are as

follows:

      (1)    ARESTEDE JAMES TREADWAY, TDCJ #02002220, Garza West

Transfer Facility, 4250 Highway 202, Beeville, Texas 78102, is the appellant and

was the defendant in trial court.

      (2)    The STATE OF TEXAS, by and through the Bexar County District

Attorney’s Office, Paul Elizondo Tower, 101 W. Nueva St., San Antonio, Texas

78205, is the appellee and prosecuted this case in the trial court.

      The trial attorneys were as follows:

      (1)    Arestede James Treadway was represented by ROBERT F.

GEBBIA, 107 Woodward Place, San Antonio, Texas 78204.

      (2)    The State of Texas was represented by NICHOLAS LAHOOD,

District Attorney, and JENNA REBLIN, Assistant District Attorney, Paul

Elizondo Tower, 101 W. Nueva St., San Antonio, Texas 78205.

       The appellate attorneys are as follows:

      (1)    Arestede James Treadway is represented by MICHAEL D.

ROBBINS, Assistant Public Defender, Paul Elizondo Tower, 101 W. Nueva St.,

Suite 370, San Antonio, Texas 78205.




                                           ii
      (2)   The State of Texas is represented by the BEXAR COUNTY

DISTRICT ATTORNEY’S OFFICE, Appellate Division, Paul Elizondo Tower,

101 W. Nueva St., Suite 710, San Antonio, Texas 78205.

      The trial judge was HON. MARY ROMAN, 175th District Court, Cadena-

Reeves Justice Center, 300 Dolorosa St., 4th Floor, San Antonio, Texas 78205.




                                        iii
                                Table of Contents

                                                                               Page

Identity of Parties and Counsel .    .        .     .   .      .     .     .      ii

Table of Contents .      .      .    .        .     .   .      .     .     .     iv

Table of Authorities     .      .    .        .     .   .      .     .     .     vi

A Note Regarding Record References .          .     .   .      .     .     . viii

Statement Regarding Oral Argument .           .     .   .      .     .     . viii

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

Issues Presented   .     .      .    .        .     .   .      .     .     .      3

                  APPELLANT’S FIRST POINT OF ERROR
      The evidence was legally insufficient to support the trial court’s
      finding that Mr. Treadway intentionally or knowingly entered a
      habitation and attempted to commit and committed aggravated
      assault.

                  APPELLANT’S SECOND POINT OF ERROR
      The evidence was legally insufficient to support the trial court’s
      finding that Mr. Treadway intentionally or knowingly entered a
      habitation and attempted to commit and committed theft.

                  APPELLANT’S THIRD POINT OF ERROR
      Mr. Treadway’s right to be free from double jeopardy was violated
      when he was convicted twice for burglary of a habitation, arising from
      the same entry.

Statement of Facts .     .      .    .        .     .   .      .     .     .      4

Summary of the Argument         .    .        .     .   .      .     .     .     11

Argument    .      .     .      .    .        .     .   .      .     .     .     12


                                         iv
      Appellant’s First Point of Error (Restated)   .   .   .   .   . 12

      Appellant’s Second Point of Error (Restated)      .   .   .   .   12

      Appellant’s Third Point of Error (Restated) .     .   .   .   .   18

Conclusion and Prayer    .      .     .       .     .   .   .   .   .   22

Word Count Certificate of Compliance          .     .   .   .   .   .   23

Certificate of Service   .      .     .       .     .   .   .   .   .   23




                                          v
                               Table of Authorities

                                                                          Page

                                    Constitution

TEX. CONST. art. I, § 14 .      .     .        .   .   .     .   .    .      4

U.S. CONST. amend. V     .      .     .        .   .   .     .   .    . 7,18

U.S. CONST. amend. XIV .        .     .        .   .   .     .   .    .14,18

                                      Statutes

TEX. PENAL CODE § 22.01 (West 2011)            .   .   .     .   .    .     14

TEX. PENAL CODE § 30.02 (West 2011)            .   .   .     .   .   1,13,21

TEX. PENAL CODE § 31.03 (West 2011)            .   .   .     .   .    .     14

                                       Rules

TEX. R. APP. P. 9.4 (West 2015) .     .        .   .   .     .   .    .     23

TEX. R. APP. P. 38.1 (West 2015)      .        .   .   .     .   .    .      ii

TEX. R. APP. P. 44.2 (West 2015)      .        .   .   .     .   .    .     17

                                       Cases

Benton v. Maryland, 395 U.S. 784 (1969)        .   .   .     .   .    .     18

Bigon v. State, 252 S.W.3d 360 (Tex. Crim. App. 2008) .      .   .    .     21

Carrizales v. State, 414 S.W.3d 737 (Tex. Crim. App. 2013)   .   .    .     14

Davila v. State, 547 S.W.2d 606 (Tex. Crim. App. 1977) .     .   .    .     13

Davis v. State, 313 S.W.3d 317 (Tex. Crim. App. 2010) .      .   .    .     20


                                          vi
Dobbs v. State, 434 S.W3d 737 (Tex. Crim. App. 2013) .        .     .     .13,14

Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006)       .     .   19,20,21

Ex parte Ward, 964 S.W.2d 617 (Tex. Crim. App. 1998) .        .     .     .   19

Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) .     .     .     .17,18

Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000) .      .     .     .   19

Illinois v. Vitale, 447 U.S. 410 (1980) .         .   .   .   .     .     .   19

Jackson v. Virginia, 443 U.S. 307 (1979)          .   .   .   .     .     .   13

Johnson v. State, 571 S.W.2d 170 (Tex. Crim. App. 1978)       .     .     .   14

Long v. State, 130 S.W.3d 419 (Tex. App. – Houston [14th Dist.] 2004, no pet.)
      .      .     .     .     .     .     .     .     .      .     .      . 19

Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1997)     .     .     .   14

Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) .       .     .     .   12

Shaffer v. State, 477 S.W.2d 873 (Tex. Crim. App. 1972) .     .     .     .   21

Smith v. State, 363 S.W.3d 761 (Tex. App. – Austin 2012, no pet.)   .     .   12

Stephens v. State, 806 S.W.2d 812 (Tex. Crim. App. 1990)      .     .     .   19

White v. State, 395 S.W.3d 828 (Tex. App. – Fort Worth 2013, no pet.)     .   21

Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996)      .     .     .   12




                                            vii
                     A Note Regarding Record References

      This appeal embraces two separate interrelated cases which were tried

together. There are five volumes in the reporter’s record of the combined trial. In

this brief, references to the reporter’s record will be thus: (RR 2, ___) There are

two separate clerk’s records because there were two cause numbers. References to

the clerk’s record of 2013-CR-11505 will be thus: (CR 11505, ___). References to

the clerk’s record of 2013-CR-11506 will be thus: (CR 11506, ___).



                     Statement Regarding Oral Argument

      The issues raised in this appeal may be determined from the record and legal

authorities alone. For that reason, the undersigned counsel does not request oral

argument, but will present oral argument if it is requested by the State and granted

by the Court.




                                        viii
TO THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS
DISTRICT OF TEXAS:

       This brief is filed on behalf of Appellant, Arestede James Treadway, by

Michael D. Robbins, Assistant Public Defender.



                                  Statement of the Case

       Appellant Arestede James Treadway was charged by indictment in Cause

No. 2013-CR-11505 with the offense of burglary of a habitation by attempting and

committing aggravated assault 1 - habitual offender. (CR 11505, 5-6). He was

charged by indictment in Cause No. 2013-CR-11506 with the offense of burglary

of a habitation by attempting to commit and committing theft 2 - habitual offender.

(RR 11506, 7-8). Mr. Treadway waived a jury and was tried by the court. (RR

11505, 14; RR 11506, 9). Mr. Treadway pleaded not guilty in both cases. (RR 2,

14-15. Following evidence and arguments of counsel, the trial court found

Arestede James Treadway guilty in both cases. (CR 11505, 19-20; CR 11506, 20-

21; RR 3, 44-450). Appellant elected that the court assess punishment in case of

conviction. (CR 11505, 13; CR 11506, 13). Mr. Treadway stipulated to the



1
  A felony of the first degree, in violation of TEX. PENAL CODE §§ 30.02(a)(3) & (d) (West
2011). Mr. Treadway was convicted under Count I, Paragraph B, of the indictment. (RR 3, 44-
45). The indictment also contained a count alleging aggravated assault with a deadly weapon, for
which he was acquitted. (RR 4, 8).
2
  A felony of the second degree, in violation of TEX. PENAL CODE §§ 30.02(a)(1), (a)(3) & (c)(2)
(West 2011). He was convicted under Count I, Paragraph B. (RR 3, 44-45).

                                               1
enhancement allegations. (CR 11505, 13; CR 11506, 15-16; RR 4, 5). The court

assessed two concurrent 25-year sentences. (CR 1505, 19-20; CR 11506, 20-21;

RR 4, 8). The court certified Mr. Treadway’s right of appeal. (CR 11505, 18; CR

11506, 19). Appellant timely filed notice of appeal. (CR 11505, 21-22, 34-35; CR

11506, 22-23, 28-29). The trial court appointed the Bexar County Public

Defender’s Office to represent Mr. Treadway on appeal. (CR 11505, 33; CR

11506, 34). This appeal follows.




                                       2
                          Issues Presented

                  Appellant’s First Point of Error

The evidence was legally insufficient to support the trial court’s
finding that Mr. Treadway intentionally or knowingly entered a
habitation and attempted to commit and committed aggravated
assault.

                Appellant’s Second Point of Error

The evidence was legally insufficient to support the trial court’s
finding that Mr. Treadway intentionally or knowingly entered a
habitation and attempted to commit and committed theft.

                 Appellant’s Third Point of Error

Mr. Treadway’s right to be free from double jeopardy was violated
when he was convicted twice for burglary of a habitation, arising form
the same entry.




                                  3
                                        Statement of Facts 3

Mr. Treadway misplaces the keys to his truck.

          The complainant in both of these cases was Shaun Smagacz, who owned a

company which did excavation work. (RR 2, 21). Arestede Treadway was one of

the Smagacz’s contract workers and the two men were friends. During the spring

of 2013, Mr. Smagacz resided at an address on Heather’s Cove in Bexar County.

(RR 2, 24). Ms. Smagacz’s company was working a job site on April 12, 2013, and

Mr. Treadway worked the job. Mr. Treadway rode to the site with another worker,

Wilson Brown, and accidentally left the keys to his own truck in Mr. Brown’s

truck at the end of the day. Mr. Brown left for Floresville after a job, leaving Mr.

Treadway and his truck stranded at Mr. Smagacz’s house. (RR 2, 25).

          Mr. Smagacz let Mr. Treadway spend the night at his house. They watched

TV, played basketball and ordered a pizza. Mr. Smagacz had to go to work the

following day – a Saturday – and Mr. Treadway spent the day at Mr. Smagacz’s

house. Mr. Smagacz was not feeling well the following day, Sunday. (RR 2, 26).

Mr. Smagacz wanted to play basketball with Mr. Treadway to sweat out whatever

it was that made him feel bad. They played for an hour at a court down the street

from Mr. Smagacz’s house. Mr. Treadway acted unusually during the game when

an elderly man walked by and Mr. Treadway said that the man was there to spy on


3
    This brief will present the testimony as given at trial. Appellant does not concede that it is true.

                                                     4
him. (RR 2, 27). Mr. Smagacz felt that Mr. Treadway was having delusions at one

point, when he got into Mr. Smagacz’s face and threatened to injure him with a

shank, as if he was in jail. (RR 2, 28).

      After the game, at about 2:00 p.m., Mr. Smagacz ordered a pizza. Mr.

Treadway went outside to clean his truck. Wilson Brown called several hours later.

(RR 2, 29). Mr. Smagacz approached Mr. Treadway and said that they should go

and retrieve Mr. Treadway’s keys. Mr. Treadway refused to go with Mr. Smagacz

to get the keys. (RR 2, 30). Mr. Smagacz secured the garage door and set the

burglar alarm to his house. He did not give Mr. Teadway permission to enter his

house. (RR 2, 31).

      The trip to retrieve the keys took about 15 minutes. When Mr. Smagacz

returned home, he saw Mr. Treadway’s truck unattended in the driveway. He

opened the garage door to enter his house. (RR 3, 32). He entered his house

through the laundry room, and found Mr. Treadway standing on top of the washer

and drier, going through the cabinets. The burglar alarm was sounding. Nothing

belonging to Mr. Treadway was in the cabinets, or in the house. (RR 2, 33). Mr.

Treadway denied breaking into the house. Mr. Smagacz’s pistol was in Mr.

Treadway’s back pocket. It should have been in the drawer in the computer desk.

(RR 2, 34). Mr. Treadway pulled the gun, pointed it at Mr. Smagacz, and told him




                                           5
not to move. The gun was pointed directly at Mr. Smagacz’s face. Mr. Smagacz

felt threatened. (RR 2, 35).

      Mr. Smagacz back-stepped toward the master bedroom, where there was an

assault rifle. Mr. Treadway told him to put his hands up and not to move. (RR 2,

36). He asked Mr. Smagacz where the money was. Mr. Smagacz replied that he did

not have any money in the house, which was not true. Mr. Treadway punched Mr.

Smagacz over his left eye. When Mr. Smagacz asked why he was doing this, Mr.

Treadway punched him again. (RR 2, 37). The punches caused Mr. Smagacz to fall

to one knee. Mr. Treadway again asked for money. Mr. Smagacz heard a gunshot.

The gun was pointed directly at him. The two men were about four feet apart. Mr.

Treadway did not look like himself, and was delusional. (RR 2, 38). His eyes

looked funny. Mr. Treadway pulled the trigger again, but there was no shot.

Although he was afraid, Mr. Smagacz was not struck by a bullet. From all

appearances, Mr. Treadway intended to shoot the gun. (RR 2, 39).

      Mr. Smagacz feared for his life. He kicked the gun out of Mr. Treadway’s

hand. By that time, they were in the bedroom. The gun fell to the bed or the floor.

The two men got into a wrestling match. Mr. Smagacz grabbed the gun and ran out

of the room. (RR 2, 40). He ran out of his house through the garage. He did not

know whether Mr. Treadway pursued him or not. He encountered a neighbor who

heard the shot, and he told the neighbor to call the police. Mr. Smagacz kept his


                                         6
rifle under his bed, but it was not there when he was able to re-enter his house. (RR

2, 41). The police did not recover the rifle. (RR 2, 42).

      Mr. Smagacz did not provide Mr. Treadway with a key to his house. Mr.

Treadway stayed on the living room floor and in the garage during his stay in Mr.

Smagacz’s house. (RR 2, 52). Mr. Treadway broke into the house, probably using

a crowbar, while Mr. Smagacz was away. (RR 2, 56). Mr. Smagacz did not know

where the crowbar was. (RR 2, 57). He did not know whether Mr. Treadway was

on drugs. He did not see Mr. Treadway use drugs, and they did not use drugs

together. (RR 2, 62). Mr. Smagacz believed that the clip fell out of his pistol when

Mr. Treadway hit him on the head, which is why there was no second shot. The

magazine from the pistol was found on the bed. (RR 2, 65).

      Eric Woodard was a patrol officer with the San Antonio Police

Department. He was dispatched to the address on Heathers Cove for a burglar

alarm. (RR 2, 75). While en route, he received a second dispatch for a burglary in

progress. When he arrived, he searched the house, with Mr. Smagacz’s consent. He

found a 9 millimeter handgun, and the accompanying magazine. He also found a 9

millimeter shell casing. The back door of the house was locked, but had been

forced open. The frame was broken. (RR 2, 76).

      Arestede James Treadway waived his Fifth Amendment rights and

testified on his own behalf. He did not attempt to gain entry into Mr. Smagacz’s


                                           7
home with intent to commit theft or felony. (RR 3, 7). Mr. Treadway denied that

he went into the house after being told not to, but he admitted to triggering the

burglar alarm. (RR 3, 9). He did not kick in the back door. He did not take any

money from Mr. Smagacz, although he asked Mr. Smagacz for his pay. (RR 3, 10).

He told the police that he did not remember anything, although that was not true.

(RR 3, 11-12). He did not tell the police about the fight. (RR 3, 12). Mr. Treadway

was changing his clothes from the washer to the drier when Mr. Smagacz entered

the house, and Mr. Smagacz pushed him against the washer. The burglar alarm was

not sounding. (RR 3, 13). Mr. Treadway called the police, and left the area with a

female friend who came to give him a ride. He went to a Valero store. (RR 3, 14).

Mr. Treadway did not shoot at Mr. Smagacz. (RR 3, 15). Mr. Treadway triggered

the alarm by opening and interior door.

      Mr. Treadway’s keys, phone, and wallet were in the house. (RR 3, 15-16).

The only things Mr. Treadway intended to take from the house were his own

belongings. (RR 3, 16). When Mr. Smagacz left to go get Mr. Treadway’s keys, he

left the garage door open. (RR 3, 18). Mr. Treadway caused the broken door when

he ran from the scene. (RR 3, 21). Indeed, Mr. Treadway left the scene while Mr.

Smagacz was away, and only returned when Mr. Smagacz drove past him on his

way home. When Mr. Treadway got back, Mr. Smagacz was in the garage. (RR 3,

27). Mr. Treadway asked whether the washing machine cycle was done. Mr.


                                          8
Smagacz walked to Mr. Treadway’s truck and threw some clothes into the

passenger seat. Mr. Treadway entered the house to get the rest of his clothes. (RR

3, 27-28).

      Mr. Treadway did not know that he had triggered the alarm. Mr. Smagacz

told Mr. Treadway to leave his house, and he pushed Mr. Treadway against the

washing machine. (RR 3, 29). Mr. Treadway first saw the gun when Mr. Smagacz

grabbed it from a counter. Mr. Smagacz pushed Mr. Treadway, and Mr. Treadway

struck Mr. Smagacz. According to Mr. Treadway, “I didn’t hit him in the face until

after he had the gun in his hand.” Mr. Smagacz struck his head on the cabinet door.

Mr. Treadway did not hit him on the head, shoot him, or attempt to shoot him. (RR

3, 30). Mr. Treadway never had control of the gun. Mr. Smagacz attempted to pull

the trigger. The gun either misfired or went off when the two men were fighting

over control of it Mr. Smagacz did not kick the gun out of Mr. Treadway’s hands,

and Mr. Treadway did not get on top of the washer. (RR 3, 31). Mr. Treadway

admitted to being under the influence of narcotics that day. He had taken “ice”4

and a couple of Xanax. (RR 3, 32)

Conviction and punishment.

      Following argument of counsel, the trial court convicted Arestede James



4
  Methamphetamine. See http://easyread.drugabuse.gov/meth-facts.php (last accessed on July
20, 2015).

                                            9
Treadway of burglary, in both cases. (CR 11505, 19-20; CR 11506, 20-21; RR 3,

44-45). Mr. Treadway elected that the court assess punishment in case of

conviction. (CR 11505, 13; RR 11506, 14). Mr. Treadway pleaded true to the

enhancement allegations. (RR 4, 5). The trial court assessed concurrent sentences

of 25 years. (CR 11505, 19-20; CR 11506, 20-21; RR 4, 8). The trial court

correctly certified that these were not plea bargained cases and that Appellant had

the right to appeal. (CR 11505, 18; CR 11506, 19). Mr. Treadway filed timely

notices of appeal. (CR 11595, 21-22, 34-35; CR 11506, 22-23, 28-29). The trial

court appointed the Bexar County Public Defender’s Office to represent Mr.

Treadway on appeal. (CR, 11505, 33; RR 11506, 34). This appeal follows.




                                        10
                            Summary of the Argument

      First and Second Points of Error. When reviewing a legal sufficiency of

the evidence claim in a criminal case, the appellate court will look at the evidence

in a light favorable to the verdict, and will determine whether any rational trier of

fact could have found the essential elements of the offense beyond a reasonable

doubt. In this case, no rational trier of fact could have found beyond a reasonable

doubt that Arestede James Treadway attempted to commit theft, committed theft,

attempted to commit aggravated assault, or committed aggravated assault.

Therefore, the evidence was legally insufficient to support either conviction.

             Third Point of Error. In addition, Mr. Treadway was convicted of

burglary of a habitation by attempting to commit and committing aggravated

assault, as well as burglary of a habitation by attempting to commit theft and

committing theft, arising from the same entry into Mr. Smagacz’s home. The

allowable unit of prosecution for burglary is unlawful entry. Mr. Treadway’s

double jeopardy rights were violated by these multiple convictions for the same

thing, and he may raise this issue initially on appeal.




                                          11
                                          Argument

                      Appellant’s First Point of Error (Restated)

       The evidence was legally insufficient to support the trial court’s
       finding that Mr. Treadway intentionally or knowingly entered a
       habitation and attempted to commit and committed aggravated
       assault.

                    Appellant’s Second Point of Error (Restated)

       The evidence was legally insufficient to support the trial court’s
       finding that Mr. Treadway intentionally or knowingly entered a
       habitation and attempted to commit and committed theft.

       This case involves a single set of facts arising under the burglary statute.5

Therefore, they will be briefed together. After the state rested, defense counsel

moved for a directed verdict. The trial court denied the motion. 6 (RR 2, 80). The

denial of a motion for directed verdict is reviewed the same as a review of legal

sufficiency of the evidence, Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim.

App. 1996). Additionally, legal sufficiency of the evidence may be raised for the

first time on appeal. Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010).

       The indictment in 2013-CR-11505 alleged, in Count I, Paragraph B, alleged

that Mr. Treadway “did intentionally and knowingly enter a habitation, and therein



5
  In making this sufficiency of the evidence argument, Mr. Treadway does not waive his
argument in his Third Point of Error that the two burglary convictions for the same entry
constitute double jeopardy.
6
  Technically, there is no verdict in a bench trial. However, the word “verdict” is used loosely in
the statutes and the case law, and the motion was therefore proper. Smith v. State, 363 S.W.3d
761, 772-73 n. 6 (Tex. App. – Austin 2012, no pet.).

                                                12
attempted to commit and committed the felony offense of AGGRAVATED

ASSAULT, without the effective consent of Shawn Smagacz, the owner ….” (CR

11505, 5). The indictment in 2013-CR-11506 alleged, in Count I, Paragraph B, that

Mr. Treadway “did intentionally and knowingly enter a habitation, and therein

attempted to commit and committed theft, without the effective consent of Shawn

Smagacz, the owner….” (CR 11506, 7. As charged in these cases, the elements of

burglary of a habitation are: (1) a person, (2) without the effective consent of the

owner (3) intentionally or knowingly (4) enters a habitation (5) and commits or

attempts to commit a felony, theft, or assault. TEX. PENAL CODE § 30.02(a)(3)

(West 2011); Davila v. State, 547 S.W.2d 606, 608 (Tex. Crim. App. 1977)

(supplying the “intentionally or knowingly” element).

      Legal sufficiency of the evidence “is an essential of the due process

guaranteed by the Fourteenth Amendment that no person shall be made to suffer

the onus of a criminal conviction except upon sufficient proof – defined as

evidence necessary to convince a trier of fact beyond a reasonable doubt of the

existence of every element of the offense.” Jackson v. Virginia. 443 U.S. 307, 316

(1979). The standard of review is whether, when viewed in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt. Id. At 319; Dobbs v. State, 434 S.W.3d

166, 170 (Tex. Crim. App. 2014). Circumstantial evidence is as probative as direct


                                          13
evidence in establishing the guilt of the defendant, and a finding of guilt may be

predicated on circumstantial evidence alone. Id. (citing Carrizales v. State, 414

S.W.3d 737, 742 (Tex. Crim. App. 2013)). “The jury is the sole judge of credibility

and weight to be attached to the testimony of witnesses [citation omitted]. When

the record supports conflicting inferences, we presume that the jury resolved the

conflicts in favor of the verdict, and we defer to that determination.” 7 Id.

However, the appellate court does have the duty “to position itself as a final due

process safeguard ensuring only the rationality of the factfinder.” Matamoros v.

State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995).

       In this case, the indictments alleged attempted commission and commission

of aggravated assault (CR 11505, 5) and theft (CR 11506, 7). Each of those

offenses has its own culpable mental state. Theft requires intent to deprive the

owner of property. TEX. PENAL CODe § 31.03(a) (West 2011). Aggravated assault

requires intentionally, knowingly, or recklessly causing bodily injury, or

intentionally or knowingly threatening bodily injury. TEX. PENAL CODE §§

22.01(a)(1), (a)(2) & 22.02(a) (West 2011).

Application.

       Mr. Treadway at no time attempted to commit theft, committed theft,



7
 The rule applies to the judge in a trial before the court. Johnson v. State, 571 S.W.2d 170, 173
(Tex. Crim. App. 1978).

                                               14
attempted to commit aggravated assault, or committed aggravated assault. The

reasons for him going into the house while Mr. Smagacz was away were succinctly

summed up during the State’s cross-examination of him:

      Q.    Well, did you know where the rifle was?

      A.    No, ma’am.

      Q.    Did you take the rifle from his house?

      A.    No, ma’am.

      Q.    Did you take anything from his house?

      A.    No, ma’am.

      Q.    Did you intend to take something from his house?

      A.    My clothes and personal effect, yes.

      Q.    The complainant testified that there was nothing – none of your
            belongings in his home.

      A.    No, ma’am, to this day, there is personal property of mine inside that
            home.
      (RR 4, 16-17).

      Mr. Treadway went on to say that he did not break into the house, and that

Mr. Smagacz activated the burglar alarm himself, while they were in the garage.

(RR 3, 17). Mr. Treadway testified earlier that he did not seek to take any money,

except for what was coming to him for back pay. (RR 4, 11). This testimony

negates the necessary intent to deprive the owner, Mr. Smagacz, of property, and



                                        15
therefore negates the theft element of 2013-CR-11506 and defeats the burglary

conviction in that case.

      Likewise, the evidence negates the aggravated assault element of 2013-CR-

11505. Mr. Treadway testified on re-direct that the physical altercation began when

Mr. Smagacz “physically pushed me against the washer but I think he was

attempting to get by me, like I said.” (RR 3, 29). The testimony continued:

      Q.     What were you guys fighting about?

      A.     We had already been like a little contentious relationship. The thing
             is, I believe at that time I think he was trying to go for his gun then.
             That’s what I think. Because the same direction he ran and pushed me,
             when he pushed past me, he attempted to retrieve that weapon.

      Q.     When was the first time you saw the gun?

      A.     It was when he grabbed the gun off the counter.

      Q.     Where was the gun?

      A.     It was on the counter, like around the corner of the hallway, about
             maybe four or five feet away from the laundry room.

      Q.     Okay. Did you hit him first?

      A.     After he pushed me, I did strike him.

      Q.     And where did you hit him?

      A.     I would say in the upper chest area. I didn’t hit him in the face until
             after he had the gun in his hand.

             *****     *****    *****

      Q.     Did you shoot him?

                                         16
      A.     No, I didn’t.

      Q.     Did you attempt to shoot him?
      A.     No, I didn’t.

      Q.     Did you point the gun at him?

      A.    No, I never had control of the gun.
      (RR 4, 29-31).

      This testimony clearly negates the aggravated assault element. Although it

was not argued during the trial, Mr. Treadway might have even raised the defense

of using force to defend himself. In any event, he did not commit burglary as

charged, because he did not attempt to commit or actually commit aggravated

assault.

Harm analysis.

      Legal sufficiency of the evidence invokes constitutional issues. Gollihar v.

State, 46 S.W.3d at 245-46. If the record reveals constitutional error that is subject

to harmless error review, “the court of appeals must reverse a judgment of

conviction or punishment unless the court determines beyond a reasonable doubt

that the error did not contribute to the conviction or punishment.” TEX. R. APP. P.

44.2(a) (West 2015). The error complained of here contributed to Mr. Treadway’s

conviction. The evidence clearly shows that he did not commit theft, attempt to

commit theft, commit aggravated assault, or attempt to commit aggravated assault.


                                          17
“[T]he remedy for a finding of legally insufficient evidence on appeal is acquittal.”

Gollihar v. State, 46 S.W.3d at 246. Therefore, the judgments of conviction should

be reversed, and judgments of acquittal should be rendered.



                   Appellant's Third Point of Error (Restated)

      Mr. Treadway’s right to be free from double jeopardy was violated
      when he was convicted twice for burglary of a habitation, arising from
      the same entry.

      Mr. Treadway was indicted in Cause No. 2013-CR-11505 with the offense

of burglary of a habitation by attempting to commit and committing aggravated

assault. (CR 11505, 5-6). He was indicted in Cause No. 2013-CR-11506 with the

offense of burglary of a habitation by attempting to commit and committing theft.

(CR 11506, 7-8). These charges both alleged that the offenses occurred on or about

April 14, 2013. As indicated in the Statement of Facts section of this brief, the

charges arose from the same entry into Shaun Smagacz’s home. Mr. Treadway did

not lodge a double jeopardy objection in the trial court.

The legal standards.

      U.S. CONST. amend V provides that no person “be subject for the same

offence to be twice put in jeopardy of life or limb.” The Fifth Amendment is

applied to the states through the Fourteenth Amendment. Benton v. Maryland, 395

U.S. 784, 787 (1969). In addition, TEX. CONST. art. I, § 14, contains a similar


                                          18
provision that is conceptually identical to its federal counterpart. Stephens v. State,

806 S.W.2d 812, 814-15 (Tex. Crim. App. 1990). In a case tried without a jury,

jeopardy attaches when both sides have announced ready and the defendant has

pled to the charging instrument. Ex parte Ward, 964 S.W.2d 617, 631 n. 18 (Tex.

Crim. App. 1998).

      The Double Jeopardy Clause protects against three different abuses: (1) a

second prosecution for the same offense after an acquittal, (2) a second prosecution

for the same offense after a conviction, and (3) multiple punishments for the same

offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980); Ex parte Cavazos, 203

S.W.3d 333, 336 (Tex. Crim. App. 2006). Mr. Treadway’s claim complains about

the third abuse. A double jeopardy claim may be raised for the first time on appeal

when: (1) the undisputed facts show that the double jeopardy violation is clearly

apparent on the face of the record, and (2) the enforcement of the rules of

procedural default would serve no legitimate state interest. Gonzalez v. State, 8

S.W.3d 640, 643 (Tex. Crim. App. 2000). The critical inquiry is whether the

appellate record clearly shows a double jeopardy violation. Long v. State, 130

S.W.3d 419, 424 (Tex. App. – Houston [14th Dist.] 2004, no pet.). In this case, it is

clear from the record that Mr. Treadway was convicted twice for burglary

stemming from the same entry. Therefore, the first prong is met. In addition, when

a defendant is subject to multiple convictions in the same court, on the same day,


                                          19
with the same judge, based upon the same evidence, the enforcement of statutory

procedural default requirements “would have served no state interest whatsoever.”

Shaffer v. State, 477 S.W.2d 873, 876 (Tex. Crim. App. 1972). Therefore, this

issue was not procedurally defaulted.

      A defendant suffers multiple punishments for the same offense when he is

convicted of more offenses than the Legislature intended. Ex parte Cavazos, 203

S.W.3d at 336. Burglary of a habitation in defined in Chapter 30, Title 7, of the

Penal Code, which collects the “offenses against property.” Id. at 337. The

graveman of burglary is entry without the effective consent of the owner, with the

required mental state. Id. The harm results from the entry itself, and the offense is

completed once the entry is made. Id. The allowable unit of prosecution for

burglary is the unlawful entry. Id.; Davis v. State, 313 S.W.3d 317, 342 (Tex.

Crim. App. 2010).

Application.

      As is apparent from the discussion above the, undisputed facts in this case

show that a double jeopardy violation is apparent from the face of the record. The

record shows only one entry. Mr. Treadway therefore could only have been

convicted for one burglary. The evidence supporting the entry supporting these two

convictions was identical. The same entry was used to support the convictions for

the theft related burglary and the aggravated assault related burglary. Mr.


                                         20
Treadway’s double jeopardy rights were violated. He should have suffered only

one conviction under these facts, not two.

       One of the convictions in this case must be vacated. When a defendant has

been convicted twice of the same offense, the remedy is to apply the “most serious

offense” test and retain the conviction for the most serious offense. This is usually

the offense for which the greatest sentence is imposed. White v. State, 395 S.W.3d

828, 832 (Tex. App. – Fort Worth 2013, no pet.)(citing Ex parte Cavazos, 203

S.W.3d at 338). However, in the present case, the two sentences are identical. In

this situation, the appellate court will look to the degree of felony for each offense.

Id. at 832-33 (citing Bigon v. State, 252 S.W.3d 360, 373 (Tex. Crim. App. 2008)).

       Burglary of a habitation by attempting to commit and committing

aggravated assault is a felony of the first degree. TEX. PENAL CODE §§ 30.02(a)(3)

& (d) (West 2011). Burglary of a habitation by attempting to commit and

committing theft is a felony of the second degree. TEX. PENAL CODE §§ 30.02(a)(3)

& (c)(2) (West 2011). Therefore, the assault related burglary under Cause No.

2013-CR-11505 is the more serious offense and should be retained. The conviction

in Cause No. 2013-CR-11506 should be vacated. White v. State, 395 S.W.3d at

833.




                                          21
                            Conclusion and Prayer

      WHEREFORE, PREMISES CONSIDERED, the Appellant prays the Court

of Appeals to uphold the points of error, reverse the judgments of conviction and

render orders of acquittal (First and Second Points of Error); and/or vacate the

judgment of conviction in Cause No. 2013-CR-11506 (Third Point of Error).

                                     Respectfully submitted,


                                     /s/ Michael D. Robbins
                                     MICHAEL D. ROBBINS
                                     Assistant Public Defender
                                     Paul Elizondo Tower
                                     101 W. Nueva St., Suite 310
                                     San Antonio, Texas 78205
                                     (210) 335-0701
                                     FAX (210) 335-0707
                                     mrobbins@bexar.org
                                     Bar No. 16984600
                                     ATTORNEY FOR APPELLANT




                                       22
                   Word Count Certificate of COmpliance

      Pursuant to TEX. R. APP. P. 9.4(i)(1) & (i)(2)(B) (West 2015), the word

count, from the beginning of the Statement of Facts until, but excluding, the

signature block, is 4,259. The total word count is 6,044. The Appellate Public

Defender’s Office uses Microsoft Word 2010.

                                     /s/ Michael D. Robbins
                                     MICHAEL D. ROBBINS
                                     Assistant Public Defender



                             Certificate of Service

      I HEREBY CERTIFY that a true and correct copy of the above and
foregoing Brief For Appellant has emailed to the Bexar County District Attorney’s
Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St., Suite 710,
San Antonio, Texas 78205, on July 21, 2015.


                                     /s/ Michael D. Robbins
                                     MICHAEL D. ROBBINS
                                     Assistant Public Defender




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