                                                                           ACCEPTED
                                                                       03-15-00239-CR
                                                                               8034273
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                  12/1/2015 2:06:38 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                    No. 03-15-00239-CR

                 IN THE COURT OF APPEALS             FILED IN
                                              3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS      12/1/2015 2:06:38 PM
                                                 JEFFREY D. KYLE
                                                      Clerk
                          ********

      TRACY LARANCE GORDON
                            VS.

         THE STATE OF TEXAS
                          ********

         ON APPEAL FROM THE 264th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 71,325

                           ******
                  STATE’S BRIEF
                           ******

                         HENRY GARZA
                         DISTRICT ATTORNEY

                         BOB D. ODOM
                         ASSISTANT DISTRICT ATTORNEY
                         P.O. Box 540
                         Belton, Tx 76513
                         (254) 933-5215
                         FAX (254) 933-5704
                         DistrictAttorney@co.bell.tx.us
                         SBA No. 15200000


Oral Argument Not Requested

                             1
                   TABLE OF CONTENTS

ITEM                                                       PAGE

Index of Authorities ………………………………………………………………….              3

Statement Regarding Oral Argument …………………………………………           4

Statement of the Case ……………………………………………………………….              4

Statement of Facts ……………………………………………………………………                5

Summary of State’s Argument …………………………………………………..            7

Argument and Authorities ………………………………………………………..             7

       First Issue on Appeal ………………………………………………………           7
                    EVIDENCE SUFFICIENT TO SUPPORT TRIAL
                    COURT’S FINDING OF A HABITATION?

            Standard of Review ……………………………………………….           8

            Application and Analysis ……………………………………….        9

Prayer …………………………………………………………………………………….                    14

Certificate of Compliance with Rule 9 ……………………………………….      15

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




                               2
                   INDEX OF AUTHORITIES

CASES                                                            PAGE

Blankenship v. State, 780 S.W.2d 198 ……………………………………… 9-11, 13
     (Tx. Cr. App. 1988) op. on rehg

Brooks v. State, 323 S.W. 3d 893 (Tx. Cr. App. 2010) …………………..     8

Hicks v. State, 204 S.W.3d 505 ………………………………………………….. 11-12
      (Tx. App. Amarillo 7th Dist. 2006 no pet.)

Hollander v. State, No. 09-05-448-CR, ……………………………………….            12
      2006 Tex. App. LEXIS 8125 (Tx. App. Beaumont 9th
      Dist. 2006 rev. ref.), not designated for publication).

Isassi v. State, 330 S.W.3d 633 (Tx. Cr. App. 2010) …………………….      8

Jackson v. Virginia, 443 U.S. 307 (1979) …………………………………… 8-9, 13

Jones v. State, 532 S.W. 2d 596 (Tx. Cr. App. 1976) ……………………      13

Williams v. State, 235 S.W. 3d 742 (Tx. Cr. App. 2007) ………………      8


OTHER


Texas Penal Code

     Section 30.01(1) ……………………………………………………………                      9

     Section 30.01(2) ……………………………………………………………                      9

     Section 30.02 …………………………………………………………………                       9




                                  3
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Tracy Larance Gordon, was charged by indictment

with the offense of burglary of a habitation. (CR-4). The State filed its

Amended Notice to Enhance Punishment Range alleging in paragraphs

two through six previous felony convictions for the purpose of

enhancement of punishment. (CR-25).

      The Appellant waived a trial by jury and entered a plea of not

guilty to the offense charged before Judge Martha J. Trudo. (CR-35; RR5,

6). At the conclusion of the evidence the trial court found the Appellant

guilty as charged in the indictment. (CR-50; RR6-71).

      The Appellant entered pleas of true to the allegations in

paragraphs one, two, three, four, and six of the amended notice of

enhancement, the State having waived and abandoned paragraph five.

(RR6-73).   The court found the enhancement allegations true and

assessed punishment at life in the Texas Department of Criminal Justice.

(CR-50; RR7-41).




                                    4
      The Appellant gave timely notice of appeal (CR-43) and the trial

court certified his right to do so. (CR-42).

STATEMENT OF FACTS

      The Appellant does not challenge the sufficiency of the evidence

to find him guilty of the offense of burglary, but only whether the trial

court erred in finding the building burglarized was a habitation.

      The house in this case was a 4 bedroom, 2½ bath residential

structure that included a kitchen, formal and informal dining rooms, a

study, a living area with fireplace, and game room and a 2 car attached

garage. (RR5-8). The sole purpose of the structure was for use as a

residence and, in fact, use for any other purpose was prohibited in the

development. (RR5-9).

      The owners, Ms. Bourgeois and her husband, had resided in that

structure from June of 2008 until March of 2011, when they were

transferred to Alabama by the military. (RR5-8, 10). From March of

2011 until August of 2012 the owners had rented it as a residence and it

was so utilized by the renters during that time. (RR5-10, 11). When the

renters moved the owners decided to place the home on the market for

sale and listed it with a realtor. (RR5-11).



                                      5
      The realtor, Franklin Adams, described the house as a large 2-

story residence with multiple bedrooms and bathrooms that was

designed and adapted for overnight accommodation and located in an

area zoned only for residential usage. (RR6-28).

      When the renters left all the furniture was moved out (RR5-21,

22), however, appliances were left in the kitchen, including a large

refrigerator, stove, and dishwasher. (RR5-12). The owners had the

utilities turned off by the power and water companies. (RR5-12, 13).

They had the lawn carried for every two weeks and the relator

frequently checked on the residence pending sale. (RR5-17, 18). The

house was certainly neither unkempt nor abandoned. (RR5-17). The

owners continued to receive mail at the house until February of 2013

and regarded it as their residence. (RR5-26, 27). A for sale, rent or lease

sign was placed on the front lawn. (RR5-11).

      The utilities were merely shut off by calls to the providers in

order to avoid high summer bills. (RR5-27). There was nothing wrong

with them (RR5-13) and could have been reactivated within hours by a

simple call to the companies involved. (RR5-18; RR6- 29, 33).




                                    6
      For approximately 7 months, between the listing of the house for

sale and the commission of this offense on March 12, 2013, the

residence was not physically occupied. (RR5-13, 23).

SUMMARY OF STATE’S ARGUMENT

      The structure was intended for use as a residence and was

designed and adapted for the overnight accommodation of persons. It

had been consistently used as a residence until listed for sale some

months prior to the burglary. It was wired and plumbed for utilities

which were readily available. It contained multiple bedrooms, living

areas, bathrooms, and a kitchen and was equipped with working

appliances. There was sufficient evidence from which the trial court, as

fact finder, could reasonably find that it was a habitation as defined by

statute.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

      Was the evidence sufficient to support the finding of the trial

court that the structure burglarized was a habitation?




                                    7
Standard of Review

      Due process of law requires that the State prove, beyond a

reasonable doubt, every element of the offense charged in the

indictment. Jackson v. Virginia, 443 U.S. 307, 313 (1979). In reviewing

the sufficiency of the evidence to support the conviction the court must

consider all of the evidence in the case in the light most favorable to the

verdict in order to determine whether, based upon the evidence and

reasonable inferences therefrom, a rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt.

Brooks v. State, 323 S.W. 3d 893, 899. (Tx. Cr. App. 2010).

      In reviewing the evidence in the light most favorable to the

verdict, the court must presume that the trier of fact resolved conflicts

in the testimony, weighed the evidence, and drew reasonable inferences

from that evidence in a manner that supports the verdict. Jackson at

318. The court must consider only whether the fact finder reached a

rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tx. Cr. App. 2010).

      The weight and credibility of the evidence is solely for the fact

finder and the court will not re-evaluate those matters nor substitute its

judgment for that of the fact finder. Isassi at 638; Williams v. State, 235

S.W.3d 742, 750 (Tx. Cr. App. 2007).


                                     8
      Whether the evidence was sufficient to establish that a structure

is a habitation must be determined under the Jackson v. Virginia

standard and the decision of the fact finder will be overturned on appeal

only if the Appellant can show that no reasonable fact finder could have

found the place to be a habitation. Blankenship v. State, 780 S.W.2d 198,

209, 210 (Tx. Cr. App. 1988), op. on rehearing.

Application and Analysis

      Section 30.02 of the Texas Penal Code provides that burglary of a

building is a state jail felony, while burglary of a habitation is a second

degree felony. Section 30.01(1) defines “habitation” as a structure or

vehicle that is adapted for overnight accommodation of persons.

Section 30.01(2) defines “building” as any enclosed structure intended

for use or occupation as a habitation or for some purpose of trade,

manufacture, ornament or use.

      On rehearing in Blankenship the Court of Criminal Appeals

explored the question of the sufficiency of the evidence to support a

finding that a structure was a habitation. The evidence in that case was

that the structure was a rent house on the same tract of land, and about

300 yards away from, the victim’s residence. It had not been rented or

occupied for about two years at the time of the burglary. It was wired


                                    9
for electricity, but the power was turned off and there was no meter.

Water was available but turned off in the yard. There were some

belongings stored in the house and it was equipped with two window

air conditioner units. Blankenship at 206. Viewing the evidence, as it

must, in the light most favorable to the verdict of the fact finder, the

Court of Criminal Appeals held that evidence was sufficient to support

the finding that the structure was a habitation. The court noted that

what makes a structure suitable or unsuitable for overnight

accommodation is a complex and subjective determination subject to

the fact finder’s determination.    Thus such factors as whether the

structure contained bedding, furniture, utilities, or other belongings

common to a residential structure; and whether it was of such a

character that it was probably intended to accommodate persons

overnight, such as a house, apartment, or the like, are relevant, but none

are essential or necessarily dispositive. Blankenship at 209.

      The Court of Criminal Appeals held that the following evidence

was sufficient to support the finding that the structure was a habitation:

(1) the house was once lived in by the complainant; (2) it was rented

from time to time; (3) it has a living room and two bedrooms; (4) it was

wired for electricity and water was readily available; (5) two window


                                    10
air conditioners were installed; (6) it was only 300 yards from the

complainant’s residence; (7) it was located along the only driveway

giving access to the complainant’s residence; (8) it was used to store

some of the complainant’s belongings; (9) the owner of the house

testified that it was adapted for the overnight accommodation of

persons. From these facts a reasonable trier of fact could have found

that the structure was a habitation as defined in the statute. Blankenship

at 209.

      In Hicks v. State, 204 S.W.3d 505 (Tx. App. Amarillo 7th Dist. 2006,

no pet), the Court of Appeals applied Blankenship to evidence that the

house in question was vacant and had been vacant for several weeks.

The owner described it as a home that it was meant for someone to live

in, with a bathroom, kitchen and roof. It was wired for electricity and

plumbed for water and gas. The furnishings had been removed. The

owner was attempting to re-let the house at the time of the burglary.

The court, citing Blankenship, held that the fact that the house was

vacant and lacked furnishings, alone, did not render it something other

than a habitation. It also noted that the owner had characterized the

house as a habitation that was “meant to be lived in” and that it was




                                   11
wired and plumbed for utilities, and had the usual rooms of a habitation.

The evidence as to a habitation was sufficient. Hicks at 507-08. See also

Hollander v. State, No. 09-05-448-CR, 2006 Tex. App. LEXIS 8125 (Tx.

App. Beaumont 9th Dist. 2006 rev. ref.), not designated for publication.

(Holding that evidence that structure was a mobile home used as

residential rental property that was unoccupied and without furniture

at the time of the burglary, but had hookups for water and electricity,

was sufficient to establish it was a habitation).

      In this case the structure was a 4 bedroom, 2½ bath home in a

residential area with kitchen, living room, game room, double garage,

and study. It was surrounded by other residences. The owner and the

realtor testified that it was intended for use as a residence and was

adapted for the overnight accommodation of persons. It was wired for

electricity and plumbed for water. These utilities could be turned on in

a matter of hours by request to the providers. There was no furniture

but there were appliances in the kitchen. The only use permitted for the

structure in that residential area was as a residence for persons. The

owner had occupied the structure for years until being transferred and

renters had lived there afterwards. It had only been vacant for about

seven months while attempts were made to sell, rent or lease it to


                                     12
persons to be used as their residence. There was clearly evidence from

which the trial court, as the fact finder, could reasonably have found the

house to be a habitation as that term is defined by statute.

      The Appellant argues that, in order to be a habitation, the utilities

must be connected and functional and that there must be furniture in

the bedroom and living room and bathroom. He states that the absence

of these items alone prohibits the structure from being a habitation and

urges that vacancy over a long period of time would support that

conclusion. See Appellant’s Brief at pg. 7. The Appellant cites Jones v.

State, 532 S.W.2d 596 (Tx. Cr. App. 1976), which held that a house that

was vacant and unfurnished was not within the statutory definition of

“habitation”, and Blankenship as supporting his proposition. Apparently

he relies upon the original opinion in Blankenship rather than the

opinion on rehearing which reversed that first opinion. Furthermore, in

Blankenship the Court of Criminal Appeals expressly overruled Jones

and its prodigy because it did not comply with the Jackson standard as

to sufficiency of evidence as to whether or not the structure was a

habitation; and erroneously stepped into the role of subjective fact

finder creating a definition of habitation that was confusing and not in

harmony with the statutory definition. Blankenship at 209-10.


                                    13
      Contrary to the Appellant’s assertion none of the factors he cites

necessarily make the trial court’s determination erroneous. The test is

not whether those specific factors were not present, but rather whether

the trial court could rationally decide that the house was a habitation

from the evidence presented. The trial court’s determination is entitled

to great deference.

                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/ Bob    D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000




                                     14
     CERTIFICATE OF COMPLIANCE WITH RULE 9

     This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 1,979 words.




                                           /s/ Bob     D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney



                  CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, Troy C. Hurley, Counsel for Appellant, by electronic

transfer via Email, addressed to him at: troychurl@aol.com on this 1st

day of December, 2015.


                                           /s/ Bob     D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney




                                    15
