                                                                                    ACCEPTED
                                                                                06-15-00068-CR
                                                                     SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                          10/30/2015 4:04:24 PM
                                                                               DEBBIE AUTREY
                                                                                         CLERK

                        NO. 06-15-00068-CR

                                                               FILED IN
                       **************                   6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
                                                        10/30/2015 4:04:24 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. 10,976-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.06-15-00068-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 15
                                         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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-11
ISSUE RESTATED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
         Is there sufficient evidence to sustain the judgment of conviction?
         SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

         ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . 12-14
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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




                                                    Page 2 of 15
                                       INDEX OF AUTHORITIES
Cases

Allen v. U.S., 164 U.S. 492, 502 (1896) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Aprevealo v. State, 489 S.W.2d 569, 571 (Tex.Crim.App. 1973) . . . . . . . . . . . . . . . . .10

Beardsley v. State, 738 S.W.2d 681, 685 (Tex.Crim.App. 1987) . . . . . . . . . . . . . . . . .14
Bell v. State, 326 S.W.3d 716, 720 (Tex.App. - Dallas 2010, pet. dism’d) . . . . . . . . . 12

Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) . . . . . . . . . . . . . . . . . . . .12

Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . . . . .14
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) . . . . . . . . . . . . . . . . . . . . 12,14
Horton v. State, 394 S.W.3d 589, 592 (Tex.App. - Dallas 2012, no pet.) . . . . . . . . .12,13
Jackson v. Virginia, 443 U.S. 307, 319 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997) . . . . . . . . . . . . . . . . . . 12,13
Tidwell v. State, No. 06-07-00046-CR, 2007 Tex.App. LEXIS 8008,
     (Tex.App. - Texarkana, October 10, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012) . . . . . . . . . . . . . . . . . . . . . 14
Statutes

Penal Code §31.03(a)(b)(e)(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13




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

                                                    Page 3 of 15
                          STATEMENT OF THE CASE
      This is an appeal from a conviction for theft of copper. DESMOND JUWON

WOODS was tried and convicted by a jury. The court then assessed punishment at two
(2) years confinement in a state jail. CR-108.

      This case is a companion case to No. 06-15-00063-CR pending in this court
wherein DESMOND JUWON WOODS was convicted of felony criminal mischief by

a jury, and the judge assessed punishment of eight (8) years. 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 15
                           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

                                    Page 5 of 15
pile located at the residence of 585 County Road 1231 with styrofoam insulation

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.



                                      Page 6 of 15
Woods’s arrest for the theft of copper. 3 RR 68. Deputy Stroman stated that he

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
                                    Page 7 of 15
from Mr. Woods. On December 17th, Daingerfield Iron purchased two pounds of

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

                                    Page 8 of 15
damaged poultry houses when vandalized. He testified that he and one of his workers

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 ground; twelve gauge.

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

                                     Page 9 of 15
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.

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 Deputy 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.

      The defendant offered no testimony, rested, and closed. 3 RR 168-170.

      The jury subsequently sent out notes indicating it was hung 10 for guilty, 2 for

not guilty. CR-97-100, 3 RR 198.       The Court without objection gave an Allen1

charge. CR-101, 3 RR 200. The jury subsequently returned a verdict of guilty. CR-


      1
      Allen v. U.S., 164 U.S. 492, 502 (1896); Aprevealo v.
State, 489 S.W.2d 569, 571 (Tex.Crim.App. 1973); Tidwell v.
State, No. 06-07-00046-CR, 2007 Tex.App. LEXIS 8008, (Tex.App.-
Texarkana, October 10, 2007).
                                    Page 10 of 15
104.

       The defendant withdrew his election for sentencing by a jury. 4 RR 5-16. The

defendant called 3 witnesses and testified in his own behalf in support of probation

from the court. 4 RR 66.

       In response to a defense motion for a directed verdict because of lack of proof

of theft of copper tubing as alleged in the indictment 4 RR 19, the State proposed

dismissing the theft case to seek a corrected indictment to correspond to what was
obviously unexpected testimony by all of the State witnesses that the copper sold to
Dangerfield Iron and Metal did not match the wire from the chicken house and was

not in any event copper tubing. The trial judge overruled the defense motion. 4 RR
105, 5 RR 4.

       The Court assessed punishment at two years on the theft charge and eight years

on the criminal mischief case. 4 RR 110, 5 RR 5.




                                    Page 11 of 15
                                 ISSUE RESTATED
       Is there sufficient evidence to sustain the judgment of conviction?


                        SUMMARY OF THE ARGUMENT

       No evidence links the appellant to the copper stolen from the Bullock chicken

houses.


                       ARGUMENT AND AUTHORITIES

       In reviewing the legal sufficiency of the evidence, this court 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
examined 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

matter.” Bell, 326 S.W.3d at 720 (citing Brooks, 323 S.W.3d at 899).

       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

                                      Page 12 of 15
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).

      Based on the indictment CR-6 and the statute, Penal Code §31.03(a )(b)(e)(f),

the State had to prove that Desmond Juwon Woods, in Morris County, Texas:

      1). appropriated property (copper tubing. . . of at least 50% aluminum or
copper)

      2). of value less than $20,000.00
      3). without the owner’s effective consent

      4). with the intent to deprive the owner of the property (Alice Bullock)
      Appellant challenges the legal sufficiency of the State’s circumstantial
evidence.

      There is simply no evidentiary connection in the record between the copper
from the    chicken houses and the copper sold to Daingerfield Iron and Metal over

the space of several weeks. Stroman’s testimony showed that the defendant sold
scrap metal on numerous occasions. 3 RR 74. But here is no testimony showing

when anyone “ stripped copper” subsequent sold metal on a given date. Indeed

Stroman testified that

STATE:

      Q.     Well, that’s what they buy, but tubing is not what the indictment says

             was taken out of this house was copper tubing. (sic) There wasn’t any

             copper tubing taken out of the chicken house, was it? That you know

             of?

      A.     I believe it’s #1 copper.

                                    Page 13 of 15
      Q.     Was there any copper tubing taken out of the chicken houses?

      A.     Not that I’m aware of.
      Q.     Okay. And you didn’t report any copper tubing being taken out.

      A.     No.

      In opening argument the State reminded the jury of what was needed to be

proven and that circumstantial evidence cannot be argued with. 3 RR 186. The

defense pointed out the gaps and conflicts in the State’s case. 3 RR 187. The State
closed with ad hominem attacks on the defendant as a thief and indignant remarks

that the defense blamed the case on the deputy and Mrs. Bullock. 3 RR 194.
      Factfinders are permitted to make reasonable inferences and both direct and

circumstantial evidence are probative to a case. It is possible for circumstantial
evidence alone to be enough to establish guilt. Hooper v. State, 214 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).

      A strong suspicion or mere probability of guilt are insufficient. Id. In

examinging 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.

      Argument is no substitute for evidence. The State simply did not make its case.

                                      Page 14 of 15
                                     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 3480 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 District
Attorney, 500 Broadnax, Daingerfield, Texas 75638 on the 30th day of October,
2015, by e-file.


                                       /s/ Ebb B. Mobley
                                       EBB B. MOBLEY




                                    Page 15 of 15
