                                                                                 ACCEPTED
                                                                             12-15-00017-CR
                                                                TWELFTH COURT OF APPEALS
                                                                              TYLER, TEXAS
                                                                        12/4/2015 4:00:03 PM
                                                                                   Pam Estes
                                                                                      CLERK

ORAL ARGUMENT NOT REQUESTED

                  CAUSE NO. NO. 12-15-00017-CR               FILED IN
                                                      12th COURT OF APPEALS
                                                           TYLER, TEXAS
                           IN THE                     12/4/2015 4:00:03 PM
                     COURT OF APPEALS                        PAM ESTES
                  TWELFTH DISTRICT OF TEXAS                    Clerk
                        TYLER, TEXAS

__________________________________________________________________

                   ARTHUR JAMES WILLIAMS,
                                Appellant

                               VS.

                      THE STATE OF TEXAS,
                                    Appellee
__________________________________________________________________

                      Appeal in Cause No. 31592
            On Appeal from the Third Judicial District Court
                      of Anderson County, Texas
__________________________________________________________________

                        BRIEF FOR STATE
__________________________________________________________________


                                     Eric S.A. Houghton
                                     Asst. Criminal District Attorney
                                     Anderson County, Texas
                                     Anderson County Courthouse
                                     Palestine, Texas 75801
                                     Texas Bar No. #24012855
                                     903/723-7400



                                 i
            IDENTITY OF PARTIES AND COUNSEL

JUDGE PRESIDING:

    THE HONORABLE PAMELA FOSTER FLETCHER

DEFENDANT/APPELLANT:

    ARTHUR JAMES WILLIAMS

FOR THE DEFENDANT:

    APPELLATE ATTORNEY
    COLIN MCFALL
    513 N CHURCH ST
    PALESTINE, TX 75801

    TRIAL COUNSEL
    COLIN MCFALL
    513 N CHURCH ST
    PALESTINE, TX 75801


FOR THE STATE:

    TRIAL COUNSELS
    STANLEY SOKOLOSKI

    ON APPEAL
    ERIC S.A. HOUGHTON
    ASSISTANT CRIMINAL DISTRICT ATTORNEY
    ANDERSON COUNTY COURTHOUSE
    500 N. CHURCH STREET, RM. 38
    PALESTINE, TX 75801
    (903) 723-7400




                            ii
                             TABLE OF CONTENTS

                                                                  PAGE

Identity of Parties and Counsel .   .         .   .   .   .   .   ii

Table of Contents .      .      .   .         .   .   .   .   .   iii

Index of Authorities     .      .   .         .   .   .   .   .   iv

Statement of the Case    .      .   .         .   .   .   .   .   1

Issues Presented   .     .      .   .         .   .   .   .   .   1

Statement of Facts .     .      .   .         .   .   .   .   .   1

Summary of Argument      .      .   .         .   .   .   .   .   2

Argument     .     .     .      .   .         .   .   .   .   .   2-5

Prayer       .     .     .      .   .         .   .   .   .   .   6

Certificate of Service   .      .   .         .   .   .   .   .   7

Certificate of Word Count       .   .         .   .   .   .   .   7




                                        iii
                         INDEX OF AUTHORITIES

Cases                                                               Page

Acosta v. State, 429 S.W.3d 621 (Tex.Crim.App.2014)   .     .   .   2

Brown v. State, 270 S.W.3d 564 (Tex.Crim.App.2009)    .     .   .   2

Chambers v. State, 805 S.W.2d 459 (Tex. Crim. App. 1991)    .   .   3

Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App.2007) .      .   .   2,3

Dewberry v. State, 4 S.W.3d 735 (Tex.Crim.App.1999)   .     .   .   3

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

Jackson v. Virginia, 443 U.S. 307 (1979)    .   .     .     .   .   2,3




Statutes

Tex. Code Crim. Proc. Ann. Art. 38.04 (Vernon Supp. 2009)   .   .   3

Tex. Penal Code Ann. § 30.02 (Vernon Supp. 2009)      .     .   .   4




                                       iv
                      STATEMENT OF THE CASE


      The Statement of the case is as stated in appellant’s brief page 7, with

the correction that the defendant was found guilty of the offense of Burglary

of a Habitation (V3, P140-141), not Forgery as inadvertently stated in

Appellant’s statement of facts. The Reporter’s Record will be referred to as

“V1, V2, etc.” unless otherwise noted. The Clerk’s Record will be referred

to as “CR1” or “CR2.” Appellant’s Brief will be referred to as “AB” unless

otherwise noted. Appellee is referred to as “State”.



                           ISSUES PRESENTED

      Appellant contends the evidence is legally insufficient to support a

conviction for burglary of a habitation.



                        STATEMENT OF FACTS

      Are as stated in Appellant’s brief.




                                     -1-
                       SUMMARY OF ARGUMENT

      Appellant contends the evidence is legally insufficient to support

conviction a conviction for burglary of a habitation.

                                 ARGUMENT

      The evidence presented at trial is legally sufficient to support a

conviction for burglary of a habitation.

      In reviewing the sufficiency of the evidence to support a conviction,

appellate courts view all of the evidence in the light most favorable to the

prosecution in order to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, (1979); Clayton v. State, 235 S.W.3d

772, 778 (Tex.Crim.App.2007); Acosta 429 S.W.3d at 624-5. This standard

gives full play to the responsibility of the trier of fact to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235

S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility

of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 2013);

Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App.2008), cert. denied,

556 U.S. 1211 (2009), vacated on other grounds by Ex parte Brown, 2014


                                       -2-
Tex. Crim. App. Unpub. LEXIS 984 (2014). Thus, reviewing courts may not

re-evaluate the weight and credibility of the evidence and substitute their

judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740

(Tex.Crim.App.1999), cert. denied, 529 U.S. 1131 (2000). Instead, appellate

courts “determine whether the necessary inferences are reasonable based

upon the combined and cumulative force of all the evidence when viewed in

the light most favorable to the verdict.” Hooper v. State, 214 S.W.3d 9, 16-

17 (Tex.Crim.App.2007). Reviewing courts must presume that the fact

finder resolved any conflicting inferences in favor of the prosecution and

defer to that resolution. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at

778.

       It is well established that the fact finder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the

testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

       Appellant raises on appeal that the evidence is insufficient to support

his conviction for one count of burglary of a habitation.

       A person commits the offense of Burglary of a Habitation if, without

the effective consent of the owner, the person enters a habitation or a


                                     -3-
building (or any portion of a building) not then open to the public, with

intent to commit theft or enters a building or habitation and commits or

attempts to commit theft. Tex. Penal Code Ann. § 30.02 (Vernon Supp.

2009)

        Appellant argues “the only evidence presented at trial that arguably

addressed Appellant’s intent to commit theft, as he entered the habitation of

Phillip Morris, on the 28th night of June 2013, is conflicting testimony

regarding the scratches or ‘pry marks.’” (AB P15-16)

        During trial, Detective Heavner testified that at 10 pm on the night of

the offense he responded to an alarm at the complainant’s residence,

approached the garage door, and saw Appellant inside the garage with tools

in his hands. (V3, P41-43) Detective Heavner further testified that when he

pushed the garage door open, Appellant pushed back, at which time

Detective Heavner kicked the door causing the Appellant and tools to fall to

the ground. (V3, P41-43)

        Furthermore, Ms. Morris, the homeowner, testified that the morning

after the offense she and her husband found her garden cart had been moved

to the other side of their hedge, and the usual items she had left in the cart

“were piled out and …. there were tools in there that belonged to Phillip [her


                                      -4-
husband].”     She further testified that these tools were electrical and

woodworking tools that had been taken from of the garage and placed in the

cart. (V3, P24-25) Ms. Morris also stated their house and garage had an

alarm system which had been activated that evening, and the garage door

was locked. (V3, P26-27)         Finally, Ms. Morris testified no one had

permission to enter her garage and take her husband’s tools. (V3 P32-33)

       The jury, as finder of fact, could choose to believe her testimony in its

entirety.    Her testimony alone provides ample evidence to support a

conviction for burglary of a habitation. Furthermore, the Appellant was

discovered by Detective Heavner inside the complaint’s garage with the

complainant’s tools in his arms at ten o’clock at night. The complainant had

set the alarm system earlier that evening and locked the garage door.

Finally, additional tools were discovered by the complainant the next

morning which had been taken from the garage and placed in a garden cart

in order to assist the Appellant in the commission of the offense. The

Appellant’s actions go well beyond “mere preparation,” and as such, there is

legally sufficient evidence to support Appellant’s conviction for burglary of

a habitation and his appeal should be denied.




                                      -5-
                                  PRAYER

      WHEREFORE the Appellee prays that the Court upon consideration

hereof affirm the decision of the Trial Court.



                                       Respectfully submitted by,


                                       ____________________
                                       ERIC S.A. HOUGHTON
                                       Asst. Criminal District Attorney
                                       Anderson County, Texas
                                       Anderson County Courthouse
                                       500 N. Church Street, RM 38
                                       Palestine, Texas 75801
                                       Texas Bar No. #24012855
                                       (903)723-7400




                                     -6-
                       CERTIFICATE OF SERVICE


      I hereby certify that a true copy of the foregoing Brief for the State

has been delivered via email to: COLIN MCFALL on this the 4th day of

December, 2015, in accordance with the provisions of the Texas Rules of

Criminal and Appellate Procedure.



                           ___________________________________
                           ERIC S.A. HOUGHTON
                           ASST. CRIMINAL DISTRICT ATTORNEY



                   CERTIFICATE OF WORD COUNT


I also certify that the entire word count of the State’s reply brief is 1,470
words.

                           ___________________________________
                           ERIC S.A. HOUGHTON
                           ASST. CRIMINAL DISTRICT ATTORNEY




                                       -7-
