                                                                                     ACCEPTED
                                                                                 06-15-00030-CR
                                                                      SIXTH COURT OF APPEALS
                                                                            TEXARKANA, TEXAS
                                                                           9/11/2015 11:09:46 PM
                                                                                DEBBIE AUTREY
                                                                                          CLERK

                NOS. 06-15-00030-CR & 06-15-00031-CR

____________________________________________________________
                                                  FILED IN
                                                         6th COURT OF APPEALS
                                                           TEXARKANA, TEXAS
                      IN THE COURT OF APPEALS            9/14/2015 9:24:00 AM
                                                             DEBBIE AUTREY
                            SIXTH DISTRICT                       Clerk


                    AT TEXARKANA, TEXAS
____________________________________________________________
           CHARLES FRANCIS WILLIAMS, APPELLANT

                                    V.

               THE STATE OF TEXAS, APPELLEE
____________________________________________________________

             APPEAL IN CAUSE NUMBER 30,023 & 30,068

               IN THE 196TH JUDICIAL DISTRICT COURT

                  OF HUNT COUNTY, TEXAS
____________________________________________________________

                    BRIEF FOR APPELLANT
____________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

Comes now the Appellant and submits this brief pursuant to the provisions

of the Texas Rules of Appellate Procedure in support of his request for the

judgment of conviction to be overturned in Cause No. 28,919.



                    Appellant Requests Oral Argument
                 IDENTITY OF PARTIES AND COUNSEL

Appellant’s Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403-0011

Appellant’s Trial Attorney:
Toby Wilkinson
2815 Wesley St.
Greenville, TX 75401

Appellee:
The State of Texas by and through
Noble Walker
Hunt County District Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401

Appellee’s Trial Counsel:
Lauren Hudgeons
Hunt County District Attorney’s Office
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401




                                                   2
                                    TABLE OF CONTENTS



Identity of the Parties and Counsel ............................................................. 2

Table of Contents ....................................................................................... 3

Index of Authorities ..................................................................................... 4

Statement of the Case ................................................................................ 5

Issue Presented .......................................................................................... 6

Statement of the Facts ................................................................................ 7

Summary of the Argument .......................................................................... 8

Argument and Authorities ........................................................................... 9

        Issue Number One ........................................................................... 9

        The evidence is legally insufficient to support the conviction of
        Appellant for theft of copper under $20.000.00.

        Issue Number Two ......................................................................... 11

        The evidence is legally insufficient to the conviction for
        unauthorized use of a vehicle.


Prayer for relief ........................................................................................ 14

Certificate of Word Count .......................................................................... 15

Certificate of Service ................................................................................. 15




                                                                                                           3
                               INDEX OF AUTHORITIES

FEDERAL CASES:

Jackson v. Virginia, 443 U.S. 307. ............................................................ 10

United States v. Murray, 527 F.2d 401, 410 (5th Cir.1976). ...................... 10

STATE CASES:

Anderson v. State, 813 S.W.2d 177 (Tex.App.-Dallas 1991, no pet.). ....... 10

Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010). ..................... 9

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) .................... 10

Swartz v. State, 61 S.W.3d 781(Tex.App.-Corpus Christi 2001, pet. ref'd) 12

Thompson v. State, 697 S.W.2d 413, 417 (Tex.CrimApp.1985) ................ 12



STATE STATUTES:

TEX. PEN. CODE ANN §31.03(a). (Casemaker 2014) ............................... 9

TEX. PEN. CODE ANN § 31.03(b)(1) (Casemaker 2014) ........................... 9

TEX. PEN. CODE ANN §. § 31.0a(3) (Casemaker 2014) ......................... 10

TEX. PEN. CODE ANN §. § 31.07(3) (Casemaker 2014) ......................... 12




                                                                                                4
                       STATEMENT OF THE CASE



     This is an appeal of and sentence in criminal case for the 354th

Judicial District, in Hunt County, Texas. Appellant was convicted Theft of

Copper under $20,000.00 and Unauthorized use of a Vehicle. Appellant

was assessed a sentence of 10 years on January 28, 2015 in both causes

to run concurrently. Notice of appeal was given on February 11, 2015.

The clerk's record was filed June 3, 2015. The reporter's record was filed

on June 12, 2015.




                                                                             5
                ISSUE PRESENTED


ISSUE ONE:

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE
CONVICTION OF APPELLANT OF THEFT OF COPPER, LESS
THAN $20,000.

ISSUE TWO:

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT
UNAUTHORIEZED USE OF A MOTOR VEHICLE.




                                                      6
                       STATEMENT OF THE FACTS

      Charles Francis Williams was charged with one offence in his

indictment. The indictment alleged that Williams,

      At trial the prosecution began its case by eliciting testimony from an

employee of Sharyland Utilities, in Hunt County named Terry Ervin. (RR

Vol. 6 p.10). Ervin testified that on August 19, 2014 he was working and

got a call from the alarm company, but it was initially cleared out. (RR Vol.

6 p.14). Ervin then testified that on a second alarm he discovered the gate

to the utility company was open and one of the trucks was missing, so he

called the police and his supervisor. (RR Vol. 6 p.18). Erving stated that

he viewed the surveillance video and did not recognize either person in the

video. (RR Vol. 6 p.21).

      The video in this case depicts two white men, one in a dark blue shirt

and one in a light blue or teal shirt. (See States Ex. 1.). Ervin identified

from the video that the man in the blue shirt was the one with the copper

wire in his hand. (RR Vol. 6 p.33). Hunt County Deputy Henry Potts

investigated the scene, stated he could not find any finger prints. Hunt

County Deputy Kelly Phillips acted as investigator on the case, and after he

viewed the video and not actually going to the scene, he believed the man

in the light colored shirt was the Appellant. (RR Vol. 6 p. 122).



                                                                                7
                      SUMMARY OF THE ARGUMENT

Issue One:

      The evidence is legally insufficient to support the conviction of

Appellant for theft of Copper under $20,000.

             Even when looking at all the evidence in the light most

favorable to the State, the evidence does not establish that the logical force

of the evidence, to the Appellant himself being the one who stole the

contraband. Simply stated, there is a complete lack of evidence, which is

required to sustain Appellant’s conviction.

Issue Two:

      The evidence is legally insufficient to support his conviction for

unauthorized use of a motor vehicle.

      The evidence presented at trial simply does not support a finding that

the Appellant committed the crime as the actor or a party.




                                                                             8
                                 ARGUMENT

Issue One:        The evidence is legally insufficient to support the
             conviction of Appellant as indicted.

      When reviewing legal sufficiency of the evidence, Courts review all

the evidence in the light most favorable to the jury's verdict to determine

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

charged offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d

893, 912 (Tex.Crim.App.2010);Jackson v. Virginia, 443 U.S. 307, 319.

Emphasis added. Legal sufficiency of the evidence is measured by the

elements of the offense as defined by a hypothetically correct jury charge.

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The

hypothetically correct jury charge “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.” Id.

      Under the Texas Penal Code, "[a] person commits an offense if he

unlawfully appropriates property with the intent to deprive the owner of

property. Tex. Pen. Code Ann. § 31.03(a). (Casemaker 2014).

Appropriation of property is unlawful if it is without the owner’s effective

consent. Tex. Pen. Code Ann. § 31.03(b)(1). (Casemaker 2014). Effective

                                                                               9
consent includes consent by a person legally authorized to act for the

owner not induced by deception or coercion. Tex. Pen. Code Ann. §

31.0a(3). (Casemaker 2014).

      Courts have consistently held that an “uncertain in-court identification

of an accused as the perpetrator of a crime, standing alone, is insufficient

to support a guilty verdict." Anderson v. State, 813 S.W.2d 177, 179

(Tex.App.-Dallas 1991, no pet.), cited in Swartz v. State, 61 S.W.3d 781,

788 (Tex.App.-Corpus Christi 2001, pet. ref'd); United States v. Murray, 527

F.2d 401, 410 (5th Cir.1976).

      The Fifth Circuit has explained: Questions of identification are, of

course, ordinarily for the determination of the jury. If, however, the witness

is unsure and there are no other connecting or corroborating facts or

circumstances the jury is left without evidence upon which to translate

unrelieved uncertainty into belief from the evidence beyond a reasonable

doubt. Murray, 527 F.2d at 410.

      It is true that in this case some of the deputies seemed very certain

that the person they see in the video was in fact the Appellant when asked

by the prosecutor. (RR Vol. 6 p. 33 &122). Yet, the state’s own witness

testified that the same morning of the theft she saw the Appellant come in a




                                                                               10
vehicle not owned by the utility company, nor did she see Appellant with

any copper wire. (RR Vol. 6 p. 46).

      The State insufficiently relied on evidence that was not enough to

create the logical force necessary to allow a rational juror to find that the

appellant had indeed been the person to steal the copper wire.

      In this case, the State did not prove beyond a reasonable doubt that

Appellant was the individual that stole the copper wire or even as a party as

stated in the indictment.

      Here, Appellant was not seen to be in direct possession of the copper

wire by the testifying officer or any other witness in real time. Although the

video appears to be of good overall quality it is insufficient to identify the

Appellant as one of the individuals recorded.

      Therefore, even resolving any facts in the State’s favor, there is

insufficient evidence to convict the Appellant in this case and his conviction

should be overturned.




Issue Two:        The evidence is legally insufficient to support his

            conviction for unauthorized use of a motor vehicle.

      As stated above a Court must look at all of the evidence in the light

most favorable to the verdict to determine whether any rational trier of fact

                                                                                 11
could have found that the essential elements of the offense were proven

beyond a reasonable doubt. Jackson at 319.

      A person commits the offence of unauthorized use of a vehicle if he

intentionally or knowingly operates another’s motor-propelled vehicle Tex.

Pen. Code Ann. § 31.07(a). (Casemaker 2014).

      Again as with Appellant’s issue number one, the State failed to prove

that Appellant is the individual who committed this crime. Even with a high

quality video there is still insufficient evidence to identify the Appellant as

the one committed this crime of unauthorized use of a vehicle. Even

assuming arguendo Appellant was one of the two men on the video,

Appellant was not the individual who appropriated the vehicle. State’s

witness Deputy Phillips identified Appellant as the man on the video in the

lighter colored shirt. (RR Vol. 6 p. 122). It is clear from the video that the

man in the dark shirt is the individual driving off with the Sharyland truck.

Mere presence of a person at the scene of a crime, or even flight from the

scene, without more, is insufficient to support a conviction as a party to the

offense. Thompson v. State, 697 S.W.2d 413, 417 (Tex.CrimApp.1985).

      In the case at bar the only other evidence presented to the jury was

that the Appellant came back from being out the same night the vehicle




                                                                                  12
was taken, and that he was in the same vicinity as where the vehicle was

found.

     Here the jury was left to only speculate without evidence upon which

to translate unrelieved uncertainty into belief from the evidence beyond a

reasonable doubt.




                                                                             13
                           PRAYER FOR RELIEF

      Wherefore, premises considered, Appellant respectfully prays that his

conviction in the above entitled and numbered cause be reversed and

acquit him. Appellant further prays for all other lawful relief to which he

may be entitled, at law or in equity.

                                                 Respectfully submitted,




                                                 Jason A. Duff
                                                 State Bar No. 24059696
                                                 2615 Lee Street
                                                 P.O. Box 11
                                                 Greenville, TX 75403-0011

                                                 Attorney for the Appellant




                                                                              14
 CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

      In accordance with Texas Rules of Appellate Procedure 9.4 (e) and

(i), the undersigned attorney or record certifies that Appellant's Brief

contains 14-point typeface of the body of the brief, 12-point typeface for

footnotes in the brief and contains 1,249 words, excluding those words

identified as not being counted in appellate rule of procedure 9.4(i)(1), and

was prepared on Microsoft Word 2010.




Jason A. Duff
Attorney for the Appellant

                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and

foregoing instrument was forwarded to Hunt County District Attorney Noble

D. Walker, Jr., P.O. Box 1097, Greenville, Texas 75403, on this the 11th

day of September, 2015, by hand and to the Court of Appeals in Texarkana

via Electronic Filing.




                                                                 Jason A. Duff
                                                     Attorney for the Appellant


                                                                             15
