                                                                   ACCEPTED
                                                               03-15-00239-CR
                                                                       7913693
                                                    THIRD COURT OF APPEALS
                                                               AUSTIN, TEXAS
                                                         11/19/2015 4:28:41 PM
                                                             JEFFREY D. KYLE
                                                                        CLERK




                                            FILED IN
                                     3rd COURT OF APPEALS
                                          AUSTIN, TEXAS
   COURT OF APPEALS NUMBER 03-15-00239-CR
                                     11/19/2015 4:28:41 PM

       (District Court Number 71,325) JEFFREY     D. KYLE
                                              Clerk

                   **********

IN THE COURT OF APPEALS FOR THE STATE OF TEXAS
      (Third Supreme Judicial District)

                   **********
       TRACY LARANCE GORDON Appellant

                       vs.
              THE STATE OF TEXAS

                   **********
  Appealed from the 264th Judicial District

         Court of Bell County, Texas

                   **********

               APPELLANT'S BRIEF

                   **********
                             Respectfully Submitted,


                             TROY C. HURLEY
                             Attorney for Appellant
                             P.O. Box 767
                             312 East Central Avenue
                             Belton, Texas 76513
                             Telephone :(254) 939-9341
                             FAX: (254) 939-2870
                             SBA No. 10312000
                    LIST OF PARTIES

TRACY LARANCE GORDON
TDCJ No. O1990081
Polunsky Unit
3872 FM 350 South
Livingston, Texas 77351


MICHAEL F. WHITE, Attorney at Trial
100 Kasberg Drive, Suite A
Temple, Texas 76502

Troy C. Hurley, Attorney on Appeals
P.O. Box 767
Belton, Texas 76513

Bob D. Odom, Attorney for State
P.O. Box 540
Belton, Texas 76513




                           i
                   TABLE OF CONTENTS

ITEMS                                            PAGES
LIST OF PARTIES................................... i

INDEX OF AUTHORITIES ............................. ii

STATEMENT OF THE CASE............................. 1

APPELLANT'S ISSUE PRESENTED ...................... 3
FIRST ISSUE PRESENTED (Restated).................. 3

SUMMARY OF THE ARGUMENT........................... 6
ARGUMENT AND AUTHORITIES ......................... 7

CONCLUSION AND PRAYER ............................ 9

CERTIFICATE OF SERVICE UPON STATE ................. 10

CERTIFICATE OF SERVICE UPON APPELLANT ............. 12

LETTER OF TRANSMITTAL TO APPELLANT ..............13-14

CERTIFICATE OF COMPLIANCE...........................15




                          ii
                   INDEX OF AUTHORITIES

CASES                                                PAGES
Blankenship v. State, 780 S.W.2d 198
                      (Tx.Cr.App. 1989)...........     9


Chandler v. State; 790 S.W.2d 635
                     (Tx.Cr.App. 1990)............      9


Jones v. State, 532 S.W.2d 596
                     (Tex.Cr.App. 1976)............     9
                       overruled on other grounds.

Moss v. State, 574 S.W.2d 542
                     (Tx.Cr.App. 1978).............     9
                       overruled on other grounds.
OTHERS


Texas Penal Code

    Article 32.01 . . . . . . . . . . . . . . . . . .7
    Article 32.02 . . . . . . . . . . . . . . . . . .7




                           iii
                     No. 03-15-00239-CR

              (District Court Number 64,040)

TRACY LARANCE GORDON        )          IN THE 264th JUDICIAL
Appellant                   )
                            )
VS.                         )          DISTRICT COURT OF
                            )
THE STATE OF TEXAS          )          BELL COUNTY, TEXAS
                     APPELLANT'S BRIEF

TO THE HONORABLE JUDGES OF THE TEXAS COURT OF APPEALS:
                   STATEMENT OF THE CASE

      Appellant was charged with the felony offense of
Burglary of a Habitation.       The indictment alleges that on
or about March 12, 2013, the Appellant did then and there

intentionally or knowingly enter a habitation, without
the effective consent of Norma and Jerrick Bourgeois, the

owner thereof, and attempted to commit and committed
theft of property, to-wit; a refrigerator.

      The indictment further alleges that the Appellant,
before the commission of this alleged offense, on the 11th

day of September, 2003, in the 264th District Court of

Bell County, Texas in Cause Number 53,893, was convicted

of the felony offense of Possession of a Controlled

Substance (Repeat Offender).

                                -1-
    The indictment was returned by the Grand Jury for
the 426th Judicial District Court of Bell County,

Texas, on May 22, 2013. (CR-I-4).

    Michael F. White, of Temple, Texas, represented the
Appellant at trial (CR-I-11; RR-V-2).    A trial before
the Court was held before the Honorable Martha J. White,

Judge for the 264th Judicial District Court of Bell

County, Texas, on January 12th, February 3, and March 19,

of 2015.   Appellant was found guilty by the Court on

February 3, 2015 (CR-I-50 through 52; RR-VI-71).      The
Appellant had elected to have punishment set by the

Court by virtue of is waiver of a jury trial (CR-I-35
and 36).

    On March 19, 2015, the punishment phase of the trial
was held (CR-I-50 through 52; RR-VII-4 through 43).     The
court assessed punishment at Life in the Texas Department

of Criminal Justice, Institutional Division (CR-I-50

through 52; RR-VII-41).
    Appellant gave written Notice of Appeal on March

24, 2015, (CR-I-43; RR-VII-42 and 43).    Counsel was

appointed to represent Appellant on appeal on March 31,
                             -2-
2015.
    References to the record in the brief are based on

the following chart:

    Clerk's Record--CR-I
    Reporter's Record
        RR-I--Master Index

        RR-II—-Writ of Habeas Corpus Hearing held May 3,

              2013

        RR-III—-Pre-trial Hearing held January 8, 2015
        RR-IV--Pre-trial Hearing held January 12, 2015
        RR-V—Non-jury Trial held January 12, 2015

        RR-VI--Sentencing Hearing held on February 3,
              2015

        RR-VII--Sentencing Hearing held on March 19,
               2015

        RR-VIII—-Exhibit Volume




                             -3-
                     ISSUE PRESENTED


    The State of Texas’ evidence does not support the
Trial Court’s finding of Guilty of the offense of

Burglary of a Habitation.


        STATEMENT OF FACTS FOR ISSUE PRESENTED

    On March 12, 2013, officers of the Killeen, Texas,
Police Department were sent to a location in the city
limits of Killeen.   That location was 3306 Thunder
Creek Road, Killeen, Texas. (RR-VI-8)
    The officers who responded were Officers James
Plank and Christopher Williams. (RR-VI-8 and 9)    Upon
arrival, the officers made contact with Appellant,
Tracy Larance Gordon, (RR-VI-9) and another person by
the name of Keith Simms. (RR-VI-10)    They were walking
out of the garage of a vacant house at that address.
    When Officer Plank asked Appellant what they were
doing there, he reported that his wife had purchased
the vacant house and they were there to clean the house
up (RR-VI-11).   Plank indicated that this was plausible
because there was a “For Sale” sign in the front yard.
    In order to check their story, Plank made contact
with the person who had called the police and lived
across the street from 3306 Thunder Creek Road. (RR-VI-
                            -4-
12)   He then returned to the vacant house to speak
further with the Appellant.    He noticed that there was
a garden hose connected to the water heater. Appellant
explained that the water and other utilities were not
turned on, so they were going to use the water in the
water heater to clean the house. (RR-VI-13).
      Plank stated that he saw refrigerator doors and
shelves inside the garage on the floor (RR-VI-13). When
he entered the house, he noticed that there were pieces
of a refrigerator there also and that the back door to
the house had been kicked in. (RR-VI-16 and 17).
      They returned to the garage, a car pulled up, man
got out and approached them.      This man told them that
he was the realtor who had the contract to sell the
house and his name was Franklin Adams.      Plank told
Adams what the Appellant had told him about buying the
house and Adams said this was not true and he believed
Appellant and Simms were probably there to steal
household appliances ((RR-VI-18).      The Appellant was
placed under arrest at this time.
      When questioned by Appellant’s counsel, Plank made
 the statement that the only things in the house were
appliances; no other types of furniture were present in
the house (RR-VI-19).   There were no furnishings in the
living room or the bedrooms. He said that when he was
dispatched to the address, he was told that the house
                            -5-
was supposed to be vacant and had been for quite some
time (RR-VI-20).
       Franklin Adams testified on examination by the
State that the electricity and water service to the
house had been totally disconnected and it would
require work by the utility companies    to re-establish
service (RR-VI-29).

       On cross-examination, Mr. Adams restated that on

the day of Appellant’s arrest, there was no electricity
in the house that he was arrested in. (RR-VI-36)    He
also testified that there was no running water

available in the house on that date.    He agreed with
the Appellant’s counsel that the house had been vacant
for seven (7) or more months and there had been no

furnishings or utilities there during that time (RR-VI-
37).




                             -6-
                 SUMMARY OF THE ARGUMENT

    Article 32.02, Texas Penal Code, states that a
person commits an offense if, without the effective

consent of the owner, they enter a habitation or
building, not open to the public, with the intent to

commit or commits a felony, theft, or an assault.    The
statute further states the offense is a state jail

felony if the building is not a habitation; a felony of

the second degree if the building is a habitation; and

the crime intended was a theft.
    Article 32.01, Texas Penal Code, entitled

“Definitions” states that a habitation means a

structure adapted for overnight accommodation of

persons.

    The structure involved in the case before the Court
does not meet the qualifications required by law to be
considered to be a “habitation”.

    By wrongfully classifying the structure involved in

the offense a habitation, the Trial Court subjected

Appellant to maximum sentence of twenty (20) years the

the prison.   If the structure had been correctly
classified as a building, the maximum sentence

                           -7-
Appellant faced would have been two (2) years in a
State Jail.

    Further, because the Trial Court made a finding

that Appellant had been previously found guilty of a
prior felony conviction, Appellant was subjected to and
received a Life Sentence in prison.

                  ARGUMENT AND AUTHORITIES
    Texas law has long held that for a building to

qualify for the designation “habitation” it must be

adapted for the overnight accommodation of persons.
That includes having working utilities, such as,

electricity, water, and natural gas that are connected
to the house and actually functional.
    It also contemplates there be furnishings in the

house that make it livable.    This would contemplate
things such as bedroom furniture, living room chairs

and/or couches.    It would also include working kitchen

appliances and bathroom accommodations.      These items

would meet the requirement only if they were capable of

carrying out their designed use.

    A house built and designed to be a place for

                            -8-
persons to reside would not qualify as “habitation” if

it did not meet this criteria.   If the structure has
been abandoned or vacant for a long period of time,

this would add to the argument that it did not qualify

as a “habitation”. Jones v. State, 532 S.W.2d 596
(Tex.Cr.App. 1976) overruled on other grounds; Moss v.
State, 574 S.W.2d 542 (Tx.Cr.App. 1978) overruled on

other grounds; Blankenship v. State, 780 S.W.2d 198

(Tx.Cr.App. 1989); and Chandler v. State; 790 S.W.2d

635 (Tx.Cr.App. 1990).
    By finding Appellant guilty of a Burglary of a
Habitation, as opposed to Burglary of a Building,

Appellant was found guilty of a Second Degree Felony
with a maximum possible punishment of twenty (20)

years.   If he had been found guilty of the proper
charge, the maximum punishment would have been two (2)
years for a State Jail Felony.   Since the Trial Court

also made a finding that Appellant had a prior felony

conviction, he was sentenced to Life in prison.   This
shows an unconscionable disparity of the punishment

received by Appellant. Because of this error, the

conviction should be reversed.

                           -9-
                 CONCLUSION AND PRAYER
    WHEREFORE, PREMISES CONSIDERED, the Appellant
requests the Court to reverse the conviction of the
Appellant on the basis of the errors stated and remand
the case for a new trial.




                                   Respectfully Submitted,


                                   /s/ Troy C. Hurley
                                   TROY C. HURLEY
                                   Attorney for Appellant
                                   P.O. Box 767
                                   312 East Central Avenue
                                   Belton, Texas 76513
                                   (254) 939-9341
                                   FAX (254) 939-2870
                                   SBA No. 10312000




                            -10-
           CERTIFICATE OF SERVICE UPON STATE

    This is to certify that a true and correct copy
hereof was served upon Bob D. Odom, counsel for the

State of Texas, at the Bell County District Attorney's

Office in Belton, Texas, on this the 19th day of
November, 2015.




                                 /s/ Troy C. Hurley
                                 TROY C. HURLEY
                                 Attorney at Law




                          -11-
         CERTIFICATE OF SERVICE UPON APPELLANT

    I, the undersigned court-appointed counsel for
Appellant, hereby certify that a true and correct copy

hereof has been served upon the Appellant by depositing

same, properly addressed to him:


                 TRACY LARANCE GORDON
                  Inmate No. 01990081
                     Polunsky Unit
                   1872 FM 350 South
                Livingston, Texas 77351

in the United States Mail.   I further certify that a
letter to Appellant, which is attached hereto,

accompanied the copy of the brief and advised him of
his right to add to or delete from this brief.
Appellant was also advised of his right to a copy of

the record of the proceedings against him.

    SIGNED this 19th day of November, 2015.




                                /s/ Troy C. Hurley
                                TROY C. HURLEY
                                Attorney at Law




                         -12-
                      TROY C. HURLEY
                        Attorney at Law
                         P.O. Box 767
                    312 East Central Avenue
                      Belton, Texas 76513
              (254) 939-9341 FAX (254) 939-2870


                       November 19, 2015

TRACY LARANCE GORDON
Inmate No. 01990081
Polunsky Unit
1872 FM 350 South
Livingston, Texas 77351


Re: Tracy Larance Gordon v. State
    Cause No. 03-15-00239-CR
    (Dist. Ct. No. 71,325)


Dear Mr. Gordon:
    Enclosed you will find a copy of the brief which we

are filing in your behalf in the Texas Court of Appeals
in Austin, Texas.    You are hereby advised that you have
a right to add to or delete from this brief should you

desire to do so.    We would further advise you that, as

an indigent, you may request a record in your case by
contacting the District Clerk at the Bell County

Courthouse in Belton, Texas.

                              -13-
    We will continue to keep you informed of the

progress of your appeal.

Sincerely,


/s/ Troy C. Hurley
Troy C. Hurley
Attorney at Law

TCH/lt
Enclosure




                           -14-
                CERTIFICATE OF COMPLIANCE

    I hereby certify that this brief complies with the

length limitations of Texas Rule of Appellate Procedure

9.4(i)(3) as this brief contains one thousand four

hundred seventy-seven (1,477) words, excluding the parts

of the brief exempted by Texas Rule of Appellate

Procedure 9.4(i)(1); a number which is less than the

15,000 words allowed under Rule 9.4(i)(2)(B).

    I also certify that this brief complies with the

typeface requirements of Texas Rule of Appellate

Procedure 9.4(e) because this has been written with a

conventional typeface using a 14-point font (with

footnotes no smaller than 12-points) using Microsoft

Office Word 2010 (version 14), in Courier New font.




                             /s/ Troy C. Hurley
                             Troy C. Hurley




                         -15-
