                                                                         ACCEPTED
                                                                     06-15-00120-CR
                                                          SIXTH COURT OF APPEALS
                                                                TEXARKANA, TEXAS
                                                                10/9/2015 2:54:35 PM
                                                                    DEBBIE AUTREY
                                                                              CLERK




        NO. 06-15-00120-CR                          FILED IN
                                             6th COURT OF APPEALS
                                               TEXARKANA, TEXAS
           IN THE                            10/9/2015 2:54:35 PM
                                                 DEBBIE AUTREY
                                                     Clerk
       COURT OF APPEALS
SIXTH SUPREME JUDICIAL CIRCUIT

     PATRICK STEWART
                      Appellant

                        v.
        STATE OF TEXAS
                       Appellee

     APPEAL FROM THE 87TH JUDICIAL DISTRICT OF
             FREESTONE COUNTY, TEXAS
        TRIAL COURT CAUSE NUMBER 14-153-CR


   BRIEF FOR APPELLANT
            LAW OFFICE OF STAN SCHWIEGER
                600 Austin Ave., Suite 12
                      P.O. Box 975
                Waco, Texas 76703-0975
                     (254) 752-5678
               (254) 752-7792—Facsimile
                 State Bar No. 17880500
            E-mail: wacocrimatty@yahoo.com

  ORAL ARGUMENT CONDITIONALLY REQUESTED
                      NAMES OF THE PARTIES TO THE FINAL JUDGMENT

                                                          STATE OF TEXAS

                                                                  Trial
                                                           Ms. Cari Meinen
                                                       Assistant District Attorney
                                               Freestone County District Attorney’s Office
                                                          118 East Commerce
                                                          Fairfield, TX 75840

                                                                 Appeal
                                                         Mr. Christopher Martin
                                                   Freestone County District Attorney
                                                    118 East Commerce, Room 305
                                                          Fairfield, TX 75840

                                                     APPELLANT’S COUNSEL

                                                                Trial
                                                         Mr. Lloyd Greg Tate
                                                         209 West State Street
                                                         Groesbeck, TX 76642

                                                               Appeal
                                                         Mr. Stan Schwieger
                                                     Law Office of Stan Schwieger
                                                       600 Austin Ave., Suite 12
                                                            P.O. Box 975
                                                      Waco, Texas 76703-0975

                                                            TRIAL JUDGE

                                                  The Honorable Deborah Oakes Evans
                                                          87th District Court
                                                    118 East Commerce, Room 406
                                                         Fairfield, TX 75840

Patrick Stewart v. State—Brief for Appellant                                                 Page i
                                                          TABLE OF CONTENTS

NAMES OF ALL PARTIES TO THE FINAL JUDGMENT.. . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

REQUEST FOR ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

               A.             Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

               B.             Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

                              1.               Common law “presumptions” concerning burglary offenses
                                               simply are permissive inferences. . . . . . . . . . . . . . . . . . . . . . . . 9

                              2.               The record is void of any other evidence that can be used to show
                                               Mr. Stewart’s intent upon entry into the building. . . . . . . . . . 12

               C.             Reversal is necessary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF COMPLIANCE WITH TEX.R.APP.P.9.4.

Patrick Stewart v. State—Brief for Appellant                                                                                     Page ii
                                               INDEX OF AUTHORITIES

                                                  FEDERAL CASES

Francis v. Franklin,
     471 U.S. 307 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Jackson v. Virginia,
      443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Mullaney v. Wilbur,
     421 U.S., 684 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Sandstrom v. Montana,
      442 U.S. 510 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Banks,
      979 F.2d 1534 (5th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

                                                   STATE CASES

Bailey v. State,
      722 S.W.2d 202 (Tex. App.—San Antonio 1986, no pet.). . . . . . . . . . . . . 11

Benavidez v. State,
     No. 13-07-00670-CR, 2010 WL 5256355 (Tex. App.—Corpus Christi Dec. 16,
     2010, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Branch v. State,
     No. 10-08-00118-CR, 2009 WL 400091 (Tex. App.—Waco Feb. 18, 2009, no
     pet).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Clark v. State,
      543 S.W.2d 125 (Tex. Crim. App. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

 Draper v. State,
     681 S.W.2d 175 (Tex. App.—Houston [14th Dist.] 1984, pet. ref’d). . . . . 12

Patrick Stewart v. State—Brief for Appellant                                                                           Page iii
Espinoza v. State,
      955 S.W.2d 108 (Tex. App.—Waco 1997, pet. ref’d). . . . . . . . . . . . . . . . . . 8

Gear v. State,
      340 S.W.3d 743 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . 7, 13, 14, 15

Greer v. State,
      437 S.W.2d 558 (Tex. Crim. App. 1969). . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

Hardesty v. State,
     656 S.W.2d 73 (Tex. Crim. App. 1983). . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11

Hooper v. State,
     214 S.W.3d 9 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

J.N.C.B. v. Juvenile Officer,
      403 S.W.3d 120 (Mo. Ct. App. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Johnson v. State,
     665 S.W.2d 554 (Tex. App.—Houston [1st Dist.] 1984, no pet.). . . . . . . . . 8

Knox v. State,
     No. 07-11-00409-C, 2013 WL 5872924 (Tex. App.—Amarillo Oct. 29, 2013,
     no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

LaPoint v. State,
     750 S.W.2d 180 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Laday v. State,
     690 S.W.2d 53 (Tex. App.—Beaumont 1985, no pet.). . . . . . . . . . . . . . . . . 8

Macias v. State,
     704 S.W.2d 484 (Tex. App.—Houston [14th Dist.] 1986, no pet.). . . . . . . 12

Mauldin v. State,
     628 S.W.2d 793 (Tex. Crim. App. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9



Patrick Stewart v. State—Brief for Appellant                                                                          Page iv
McMillian v. State,
     873 S.W.2d 62 (Tex. App.—Tyler 1993, pet. ref’d). . . . . . . . . . . . . . . . . . 13

Moss v. State,
     574 S.W.2d 542 (Tex. Crim. App. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Saathoff v. State,
      991 P.2d 1280 (Alaska Ct. App. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Solis v. State,
       589 S.W.2d 444 (Tex. Crim. App. 1979). . . . . . . . . . . . . . . . . . . . . . . . . 9, 14

State v. Durham,
       623 N.E.2d 1010 (Ill. App. Ct. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 12

Stearn v. State,
      571 S.W.2d 177 (Tex. Crim. App. [Panel Op.] 1978). . . . . . . . . . . . . . . . . 12

                                               STATE STATUTES

Tex. Penal Code Ann. § 30.02(a)(1) (West 1974). . . . . . . . . . . . . . . . . . . . . . . . . . 8

                                               MISCELLANEOUS

Charles R. Nesson,
      Reasonable Doubt and Permissible Inferences: The Value of Complexity, 92
      Harv. L. Rev. 1187 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15




Patrick Stewart v. State—Brief for Appellant                                                             Page v
                                               REQUEST FOR ORAL ARGUMENT

               Appellant, Patrick Stewart requests that this appeal be presented on oral

argument, only if the State requests and is granted oral argument.

                                                 STATEMENT OF THE CASE

               This is a criminal case, where Appellant was charged the offense of Burglary

of a Building.1 Trial began on January 13, 2015 in the 87th Judicial District Court of

Freestone County, Texas, with the Honorable Deborah Oakes Evans presiding. After

a trial to the jury, Appellant was found guilty of the indicted offense.2 On May 19,

2015, the jury assessed the punishment at two (2) years State Jail Division in the

Texas Department of Criminal Justice.3 Notice of Appeal was timely filed on June

4, 2015.4 The trial court’s certification of Appellant’s right to appeal was filed on

May 19, 2015.5




               1
                              (I C.R. at 40-41).
               2
                              (I C.R. at 40-41).
               3
                              (I C.R. at 40-41).
               4
                              (I C.R. at 55-56).
               5
                              (I C.R. at 51).

Patrick Stewart v. State—Brief for Appellant                                            Page vi
                                               ISSUES PRESENTED

               The evidence is legally insufficient.




Patrick Stewart v. State—Brief for Appellant                      Page vii
                                               STATEMENT OF THE FACTS

               Johnny and Linda Burt lived in a rural part of Freestone County, particularly

at 284 Farm Road 1124.6 On September 20, 2014 (at approximately 9:307 to 9:45

P.M.8) Mr. Burt and his wife were watching television.9 Mr. Burt noticed the “guard

light” coming on outside.10 At that time, Mr. Burt stated that the defendant was

standing at their “full glass door.”11 What ensued was a strange conversation between

the defendant Patrick Stewart and Mr. Burt: “he kept asking me that he was looking

for Gate 7, and he mentioned several different names. I said nobody here by that

name, you are in the wrong place, would you leave my property.”12 Believing that

Mr. Stewart had plans on entering the home, Mr. Burt armed himself with a pistol.13




               6
                              (2 R.R. at 89).
               7
                              (2 R.R. at 120).
               8
                              (2 R.R. at 106).
               9
                              (2 R.R. at 90).
               10
                              (2 R.R. at 90).
               11
                              (2 R.R. at 90).
               12
                              (2 R.R. at 91, 120S21).
               13
                              (2 R.R. at 91).
Patrick Stewart v. State—Brief for Appellant                                             Page 1
The pair attempted to summon police by calling 911, with no results.14 Cell phone

service in this area is “not good”with the only working carrier being AT&T.15

               After 30 to 40 minutes had passed, Mrs. Burke told her husband that “[Mr.

Stewart] did not leave.”16 Driving about one quarter of a mile to a “shop” located on

their property,17 the pair turned on the headlights from the car upon reaching the

shop.18 When the headlights hit the door of the shop, Mr. Burt testified that Mr.

Stewart came out of the building.19 No forced entry was needed to get into the

building because the door was not locked.20

               Still armed with a pistol, Mr. Burt ordered Mr. Stewart “against the building,”

with his wife stating that they needed to call the police.21 At that time, Mr. Burt

stated he did not have his phone with him.22 “And then [Mr. Stewart] said, I have got


               14
                (2 R.R. at 93). Apparently, officers responded to Mr. Stewart’s abandoned car rather
than the call for assistance from Mr. Burt. (2 R.R. at 107, 147).
               15
                              (2 R.R. at 131-32).
               16
                              (2 R.R. at 94).
               17
                              The shop is about three- quarters of a mile from County Road 1124. (2 R.R. at 100).
               18
                              (2 R.R. at 92–93).
               19
                              (2 R.R. at 93). Mr. Stewart did not have permission to be inside the building. (2 R.R.
at 101).
               20
                              (2 R.R. at 124).
               21
                              (2 R.R. at 93).
               22
                              (2 R.R. at 94).
Patrick Stewart v. State—Brief for Appellant                                                                    Page 2
one. And he reached into his pocket (indicating) and he came back with nothing . .

. [Mr. Stewart reached into another pocket], and he gave me -- he dialed 9-1-1 for me

and handed me the phone.”23 When Mr. Stewart emerged from the building, he had

a “money bag” containing records of a death from a funeral home.24 Other than the

pouch, nothing was taken from the building.25 Purportedly, Mr. Stewart stated that

the pouch had “deeds” proving that he had ownership to the property.26

               Mr. Burt testified that “every drawer and box was open,” tires were off a car

found in the building, and items formerly in the car trunk were taken “off of it.”27 In

addition, a pistol typically located in a toolbox inside the building, with Mr. Burt

claiming that “somebody” tried to put a “shell in it.”28 An officer testified that the

shop appeared to be “relatively well taken care of and somewhat organized.”29

Furthermore, there were items that “seemed to be possibly out of place.”30



               23
                              (2 R.R. at 94).
               24
                              (2 R.R. at 94S97).
               25
                              (2 R.R. at 112).
               26
                              (2 R.R. at 105).
               27
                              (2 R.R. at 98).
               28
                              (2 R.R. at 98).
               29
                              (2 R.R. at 141).
               30
                              (2 R.R. at 141).
Patrick Stewart v. State—Brief for Appellant                                             Page 3
               The abandoned vehicle was located earlier that evening by Freestone County

Sheriff’s Deputies.31 The vehicle was parked “in the middle-of-the-road and someone

had called it in.”32 The car was impounded and an inventory taken of the vehicle.33

No one was located near the car.34 Mr. Stewart told officers that the reason he was

in the building was “because he had a vehicle that had broken down the road, that he

had ran out of gas, was looking for gas . . .”35 No stolen items were found in the

pickup seized by the deputies.36




               31
                              (2 R.R. at 158).
               32
                              (2 R.R. at 158).
               33
                              (2 R.R. at 158).
               34
                              (2 R.R. at 159).
               35
                              (2 R.R. at 159).
               36
                              (2 R.R. at 161).
Patrick Stewart v. State—Brief for Appellant                                          Page 4
                                               SUMMARY OF THE ARGUMENT

                This is an unusual case in which there is no evidence that allows any inference

about what Appellant intended to do within the building. As applicable here, as

termed by former Texas Court of Criminal Appeals Judge Cathy Cochran, this case

is typically controlled by the “don’cha know” standard – Appellant was found inside

a building, therefore “don’cha know” he intended to commit theft.

               However, this “standard” needs to join the typical support methods used to find

“don’cha know”–on the legal heep of failed concepts. This does not require this

Court to make sweeping changes in the law; merely correctly using an accurate label

to discuss existing concepts will suffice.

               The first example? The use of the term that it is presumed that unauthorized

entry into a building a night is burglarious. Wrong. First, mandatory presumptions

are not allowed in criminal law. Secondly, it is better classified as a nonbinding

inference, one that will not carry the day past this Court’s obligation to ensure a

rational verdict.

               The remainder of the facts demonstrate that Mr. Stewart’s truck had broken

down in the middle of nowhere. Stranded in an area with spotty cell service, Mr.

Stewart began to search for assistance. Granted, the record shows a strange, if not

bizarre approach to total strangers; for instance requesting to know where “Gate 9"

Patrick Stewart v. State—Brief for Appellant                                                Page 5
is. Nonetheless, the record, such as it is, fails to demonstrate that at the moment of

entry, Mr. Stewart’s intentions were to commit theft.

               When applying a legal review, this Court is under an obligation to find that the

State failed to produce adequate evidence to demonstrate that Mr. Stewart’s guilty

verdict was anything other than a product of jurors agreeing upon “don’cha” know.




Patrick Stewart v. State—Brief for Appellant                                                Page 6
Issue Restated:
      The evidence is legally insufficient.

               The State failed to show that Mr. Stewart had the requisite intent to steal when

first entering the building. As such, this matter must be remanded for a judgment of

acquittal.

               A.             Standard of Review.

               In determining whether the evidence is legally sufficient to support a

conviction, a reviewing court must consider all of the evidence in the light most

favorable to the verdict and determine whether, based on that evidence and

reasonable inferences therefrom, a rational fact finder could have found the essential

elements of the crime beyond a reasonable doubt.37 This “familiar standard gives full

play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.”38 “Each fact need not point directly and independently to the guilt of the

appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.”39


               37
              Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007).
               38
                              Jackson, 443 U.S. at 319.
               39
                              Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011).
Patrick Stewart v. State—Brief for Appellant                                                Page 7
               B.             Argument.

               The elements of proof for burglary of a building with intent to commit theft are

that (1) a person, (2) without effective consent, (3) enters a building not then open to

the public, (4) with the intent to commit a theft.40 If a defendant does not have an

intent to steal at the time, his presence on the premises becomes unlawful, he cannot

be convicted of burglary.41 The intent to commit a further crime must coexist with

the initial criminal trespass.42 As such, intent, as an essential element of the offense

of burglary, must be proved by the State beyond a reasonable doubt; it may not be left

simply to speculation and surmise.43 Intent may be established by circumstantial

evidence.44



               40
                Johnson v. State, 665 S.W.2d 554, 556 (Tex. App.—Houston [1st Dist.] 1984, no
pet.) (citing TEX. PENAL CODE ANN. § 30.02(a)(1) (West 1974)).
               41
                 Laday v. State, 690 S.W.2d 53, 55 (Tex. App.—Beaumont 1985, no pet.) (stating that
an essential element of a charge on the offense of burglary of a building, as charged in the instant
case, is that such is committed with “intent to commit a felony or theft.”).
               42
                Section 30.02 of the Penal Code lists three distinct ways a burglary may be
committed. If a defendant is charged with burglary under the initial two subsections of (a), the State
is required to prove the defendant’s intent to commit a felony or theft at the time the defendant
entered or remained concealed in a habitation or building. Espinoza v. State, 955 S.W.2d 108, 111
(Tex. App.—Waco 1997, pet. ref’d); see also Saathoff v. State, 991 P.2d 1280, 1285, 661 (Alaska
Ct. App. 1999); accord State v. Durham, 623 N.E.2d 1010, 1013 (Ill. App. Ct. 1993) (“A criminal
intent formulated after a lawful entry will not satisfy the statute.”)
               43
                              Greer, 437 S.W.2d at 559–60.
               44
               Knox v. State, No. 07-11-00409-CR, 2013 WL 5872924, at *3 (Tex. App.—Amarillo
Oct. 29, 2013, no pet.) (mem. op., not designated for publication).
Patrick Stewart v. State—Brief for Appellant                                                      Page 8
                              1.               Common law “presumptions” concerning burglary offenses
                                               simply are permissive inferences.

               A number of cases have held that an entry into a building, when made without

consent in the nighttime, is “presumed” to have been made with intent to commit

theft.45 This is the legal equivalent of an old wives tale, and is not supportable under

current law.

               A true presumption is a rule of law laid down by the courts which attaches to

facts certain procedural consequences, such as the shift in the burden of evidence

production: when fact A is established, the fact finder must find fact B, unless the

opponent introduces evidence from which the fact finder could reasonably find that

B did not exist.46 Distantly related is the term “permissible inference” which is a

deduction from the facts which the fact finder may draw from the circumstances of

the case without the aid of any rule of law, but is not obligated to do so.47

               To find that burglary has been committed there must be evidence not only

showing burglarious entry, but also that the party at the time he entered had specific




               45
              See, e.g., Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982); Solis v.
State, 589 S.W.2d 444, 446 (Tex. Crim. App. 1979); Moss v. State, 574 S.W.2d 542, 544 (Tex.
Crim. App. 1978); Clark v. State, 543 S.W.2d 125, 128 (Tex. Crim. App. 1970).
               46
                              Hardesty v. State, 656 S.W.2d 73, 76 (Tex. Crim. App. 1983) (en banc).
               47
                              Id.
Patrick Stewart v. State—Brief for Appellant                                                           Page 9
intent to commit theft as alleged in the indictment.48 Nothing in the burglary statutes

indicates that a presumption from the evidence arises with regard to proof of intent

as an essential element of burglary.49 In fact, the evidentiary “presumption” or

permissive inference was never intended to relieve the prosecution of proving every

element of a crime beyond a reasonable doubt or to be used in a jury charge for that

purpose.50

               Furthermore, to use the theory of entry at night to presume the intent to steal

would be contrary to pronouncements from the United State Supreme Court. The

Court has explicitly held unconstitutional a mandatory rebuttable presumption that

shifted to the defendant a burden of persuasion on the question of intent,51 as are

instructions that might reasonably have been understood by the jury as creating a

mandatory rebuttable presumption were unconstitutional.52 Along these same lines,

in Hardesty, the Court of Criminal Appeals labeled “recent unexplained possession




               48
                               Greer v. State, 437 S.W.2d 558, 560 (Tex. Crim. App. 1969).
               49
                              LaPoint v. State, 750 S.W.2d 180, 182 (Tex. Crim. App. 1986) (en banc).
               50
                              Francis v. Franklin, 471 U.S. 307, 314 (1985).
               51
                              Mullaney v. Wilbur, 421 U.S., 684, 698S701 (1975).
               52
                              Sandstrom v. Montana, 442 U.S. 510, 524 (1979).
Patrick Stewart v. State—Brief for Appellant                                                            Page 10
of stolen goods” as a permissible inference “merely a circumstance of guilt and [is]

not conclusive.”53

               Rather, as a matter of constitutional necessity, where there is no other evidence

to bolster a permissible inference, the facts proven for purposes of the inference must

establish the element to which the inference is relevant beyond a reasonable doubt.54

To hold otherwise would permit the State to establish an essential element of a crime

by evidence that, standing alone, does not fairly support an inference of intent.55

Thus, this Court must properly use the inference of entry at night in a lawful manner.

               Here, the evidence shows that the defendant was found in the building at

night.56 However, a fact finder is not forced to convict the defendant, the burden of

proof is not shifted, and the State must still prove each element of the crime beyond

a reasonable doubt.57 Moreover, a deduction of guilt drawn from a defendant’s from

this inference acts merely a circumstance of guilt and is not conclusive.58 Once the


               53
                              Id. at 77.
               54
                              J.N.C.B. v. Juvenile Officer, 403 S.W.3d 120, 128, 4644 (Mo. Ct. App. 2013).
               55
               Bailey v. State, 722 S.W.2d 202, 204 (Tex. App.—San Antonio 1986, no pet.).
(holding that non-consensual nighttime entry is simply a circumstance from which the trier of fact
may or may not infer an intent to commit theft).
               56
                              See Appellant’s Br. at 2.
               57
                              Hardesty, 656 S.W.2d at 77.
               58
                              Id.
Patrick Stewart v. State—Brief for Appellant                                                                 Page 11
permissible inference arises, the sufficiency of the evidence must still be examined

according to applicable standards of appellate review.59 As such, the remainder of the

record must demonstrate that the Appellant had the intent to commit theft upon entry

into the building.

                              2.               The record is void of any other evidence that can be used to
                                               show Mr. Stewart’s intent upon entry into the building.

                A defendant’s burglarious entry and his intent to commit theft may be inferred

from circumstantial evidence.60 Mr. Stewart will attempt to gather some of the facts

used to satisfy this element.

               Circumstances used to infer guilt in burglary cases include cases where there

are signs of forced entry (with the tools used to enter) which were found near the

entry location supporting intent.61 There is no indication of forced entry into the

building to support this inference.62 In addition, flight from the crime scene,

combined with an unlawful entry has been found to be sufficient to circumstantially




               59
                              Id.
               60
                              Stearn v. State, 571 S.W.2d 177, 177-78 (Tex. Crim. App. [Panel Op.] 1978)
               61
                              See Macias v. State, 704 S.W.2d 484, 485–86 (Tex. App.—Houston [14th Dist.]
1986, no pet.)
               62
                              (2 R.R. at 124).
Patrick Stewart v. State—Brief for Appellant                                                               Page 12
prove intent.63 However, it has been observed that the lack of flight “under certain

designated circumstances” indicates “one is not guilty and thus there is no fear of

arrest or conviction.”64 Mr. Stewart being at gunpoint may explain his lack of flight.65

However, it does not explain the use of his own cell phone to summon authorities.66

               Furthermore, the transferring court has used direct statements from the

defendant to support an inference of theft. Where a defendant and the purported

victim discussed whether the defendant would have been able to “clean [her] house

out” if she had not been there, the transfer court found, inter alia, sufficient evidence

to establish intent to steal.67 Mr. Stewart made no such confession to the offense in

question.




               63
                 Draper v. State, 681 S.W.2d 175, 177 (Tex. App.—Houston [14th Dist.] 1984, pet.
ref’d); see also Durham, 623 N.E.2d at 1014 (“[The defendant] may have taken advantage of the
opportunity to commit larceny, but his presence in the store is as consistent with his innocence as
with his guilt of the criminal intent at the time of his entry.”).
               64
                United States v. Banks, 979 F.2d 1534, *6 (5th Cir. 1992) (not designated for
publication in the Federal Reporter).
               65
                (2 R.R. at 94); see also McMillian v. State, 873 S.W.2d 62, 64 (Tex. App.—Tyler
1993, pet. ref’d) (holding that circumstantial evidence of entry included defendant’s hasty retreat in
car from burglary scene).
               66
                              (2 R.R. at 94).
               67
               Branch v. State, No. 10–08–00118–CR, 2009 WL 400091, at *2 (Tex. App.—Waco
Feb. 18, 2009, no pet) (mem. op., not designated for publication).
Patrick Stewart v. State—Brief for Appellant                                                     Page 13
               Gathering these inferences, the Texas Court of Criminal Appeals, upholding

the defendant’s conviction, was swayed by several applicable inferences.68 First the

Court of Criminal Appeals found the defendant was “interrupted as he was attempting

to enter the complainant’s home immediately after he had broken the complainant’s

window, at which time he ran.”69 The Court further considered “the additional

evidence of appellant’s joblessness, his lack of transportation and funds, his

‘implausible’ and inconsistent explanations for his conduct, and his flight upon being

interrupted by the complainant” relevant to determining intent.70

               The facts in this case diverge from those in Gear. As pointed out previously,

there was no forced entry in this matter.71 Secondly, the lack of transportation in this

matter was due to a broken down car located in the area of the purported offense.72

There is no implausible or inconsistent explanation for the conduct; in fact it is

perfectly consistent with attempting to seek help with his stranded vehicle.73




               68
                              See generally Gear, 340 S.W.3d at 747–48.
               69
                              Id. at 747.
               70
                              Id. at 748.
               71
                              (2 R.R. at 124).
               72
                              (2 R.R. at 159).
               73
                              (2 R.R. at 159).
Patrick Stewart v. State—Brief for Appellant                                            Page 14
               This is an unusual case in which there is no evidence that allows any inference

about what Appellant intended to do within the building. As applicable here, this is

a “don’cha know” standard – Appellant was found inside this building, therefore

“don’cha know” he intended to commit theft.74 The actor’s behavior was “sufficiently

inexplicable that reasonable doubt remains as to what his specific criminal intentions

actually were.75

               To be sure, by a process of elimination, a rational trier of fact could conclude

that Appellant’s intentions were not honorable. While the fact finder’s prerogative

to choose among plausible and rational readings of the evidence is beyond appellate

review, there must still be some evidence to prove the essential elements of the

offense and a verdict must be supported by a reasonable inference.76 As such, the

evidence sufficient in quality, character, or weight under the rigorous standards of

review set forth by the Court of Criminal Appeals simply does not exist here. In other

words, “the concept of reasonable doubt is inconsistent with a procedure that permits

an otherwise unassisted leap from aggregate likelihood to a conclusion of guilt.”77


               74
                              Gear, 340 S.W.3d at 749 (Cochran, J., dissenting).
               75
                              Solis, 589 S.W.2d at 446–47.
               76
                              Gear, 340 S.W.3d at 749 (Cochran, J., dissenting).
               77
              Charles R. Nesson, Reasonable Doubt and Permissible Inferences: The Value of
Complexity, 92 HARV. L. REV. 1187, 1208 (1979).
Patrick Stewart v. State—Brief for Appellant                                               Page 15
               C.             Reversal is necessary.

               When the evidence is not legally sufficient to support a defendant’s conviction

this Court must reverse the case, vacate the trial court’s judgment of conviction, and

remand the case to the trial court for the entry of a judgment of acquittal.78




               78
               Benavidez v. State, No. 13-07-00670-CR, 2010 WL 5256355, *4 (Tex. App.—Corpus
Christi Dec. 16, 2010, no pet.) (mem. op., not designated for publication).
Patrick Stewart v. State—Brief for Appellant                                              Page 16
                                                 PRAYER FOR RELIEF

               For the reasons alleged above, Appellant was denied a fair trial. Thus, this

Honorable Court must remand this matter to the trial court with orders to enter a

judgment of acquittal.

                                                       Respectfully submitted,

                                                       LAW OFFICE OF STAN SCHWIEGER


                                                       /s/ Stan Schwieger
                                                       Stan Schwieger
                                                       600 Austin Avenue, Suite 12
                                                       P.O. Box 975
                                                       Waco, Texas 76703-0975
                                                       (254) 752-5678
                                                       (254) 752-7792—Facsimile
                                                       E-mail: wacocrimatty@yahoo.com
                                                       State Bar No. 17880500
                                                       ATTORNEY FOR APPELLANT

                                               CERTIFICATE OF SERVICE

               On October 9, 2015, a copy of this brief has been delivered by Appellant’s
electronic filing service to the Christopher Martin, Freestone County District
Attorney’s Office, Fairfield, Texas, attorney of record for the State of Texas at
christopher.martin@co.freestone.tx.us .

                                                       /s/ Stan Schwieger
                                                       Stan Schwieger


Patrick Stewart v. State—Brief for Appellant                                            Page 17
     CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
       Certificate of Compliance with Type-Volume Limitation,
        Typeface Requirements, and Type Style Requirements

1.   This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i)
     exempted by TEX. R. APP. P. 9.4(i)(1), as it contains 3314 words.

2.   This brief complies with the typeface requirements and the type style
     requirements of TEX. R. APP. P. 9.4(e) because this brief has been produced on
     a computer in conventional typeface using WordPerfect X6 in Times New
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3.   This electronically filed brief is free from any computer viruses, malware or
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                                     /s/ Stan Schwieger
                                     Stan Schwieger
