Tracy Larance Gordon v. State ( 2015 )


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  •                                                                    ACCEPTED
    03-15-00239-CR
    7913693
    THIRD COURT OF APPEALS
    AUSTIN, TEXAS
    11/19/2015 4:28:41 PM
    JEFFREY D. KYLE
    CLERK
    FILED IN
    3rd COURT OF APPEALS
    AUSTIN, TEXAS
    COURT OF APPEALS NUMBER 03-15-00239-CR
    11/19/2015 4:28:41 PM
    (District Court Number 71,325) JEFFREY     D. KYLE
    Clerk
    **********
    IN THE COURT OF APPEALS FOR THE STATE OF TEXAS
    (Third Supreme Judicial District)
    **********
    TRACY LARANCE GORDON Appellant
    vs.
    THE STATE OF TEXAS
    **********
    Appealed from the 264th Judicial District
    Court of Bell County, Texas
    **********
    APPELLANT'S BRIEF
    **********
    Respectfully Submitted,
    TROY C. HURLEY
    Attorney for Appellant
    P.O. Box 767
    312 East Central Avenue
    Belton, Texas 76513
    Telephone :(254) 939-9341
    FAX: (254) 939-2870
    SBA No. 10312000
    LIST OF PARTIES
    TRACY LARANCE GORDON
    TDCJ No. O1990081
    Polunsky Unit
    3872 FM 350 South
    Livingston, Texas 77351
    MICHAEL F. WHITE, Attorney at Trial
    100 Kasberg Drive, Suite A
    Temple, Texas 76502
    Troy C. Hurley, Attorney on Appeals
    P.O. Box 767
    Belton, Texas 76513
    Bob D. Odom, Attorney for State
    P.O. Box 540
    Belton, Texas 76513
    i
    TABLE OF CONTENTS
    ITEMS                                            PAGES
    LIST OF PARTIES................................... i
    INDEX OF AUTHORITIES ............................. ii
    STATEMENT OF THE CASE............................. 1
    APPELLANT'S ISSUE PRESENTED ...................... 3
    FIRST ISSUE PRESENTED (Restated).................. 3
    SUMMARY OF THE ARGUMENT........................... 6
    ARGUMENT AND AUTHORITIES ......................... 7
    CONCLUSION AND PRAYER ............................ 9
    CERTIFICATE OF SERVICE UPON STATE ................. 10
    CERTIFICATE OF SERVICE UPON APPELLANT ............. 12
    LETTER OF TRANSMITTAL TO APPELLANT ..............13-14
    CERTIFICATE OF COMPLIANCE...........................15
    ii
    INDEX OF AUTHORITIES
    CASES                                                PAGES
    Blankenship v. State, 
    780 S.W.2d 198
                          (Tx.Cr.App. 1989)...........     9
    Chandler v. State; 
    790 S.W.2d 635
                         (Tx.Cr.App. 1990)............      
    9 Jones v
    . State, 
    532 S.W.2d 596
                         (Tex.Cr.App. 1976)............     9
    overruled on other grounds.
    Moss v. State, 
    574 S.W.2d 542
                         (Tx.Cr.App. 1978).............     9
    overruled on other grounds.
    OTHERS
    Texas Penal Code
    Article 32.01 . . . . . . . . . . . . . . . . . .7
    Article 32.02 . . . . . . . . . . . . . . . . . .7
    iii
    No. 03-15-00239-CR
    (District Court Number 64,040)
    TRACY LARANCE GORDON        )          IN THE 264th JUDICIAL
    Appellant                   )
    )
    VS.                         )          DISTRICT COURT OF
    )
    THE STATE OF TEXAS          )          BELL COUNTY, TEXAS
    APPELLANT'S BRIEF
    TO THE HONORABLE JUDGES OF THE TEXAS COURT OF APPEALS:
    STATEMENT OF THE CASE
    Appellant was charged with the felony offense of
    Burglary of a Habitation.       The indictment alleges that on
    or about March 12, 2013, the Appellant did then and there
    intentionally or knowingly enter a habitation, without
    the effective consent of Norma and Jerrick Bourgeois, the
    owner thereof, and attempted to commit and committed
    theft of property, to-wit; a refrigerator.
    The indictment further alleges that the Appellant,
    before the commission of this alleged offense, on the 11th
    day of September, 2003, in the 264th District Court of
    Bell County, Texas in Cause Number 53,893, was convicted
    of the felony offense of Possession of a Controlled
    Substance (Repeat Offender).
    -1-
    The indictment was returned by the Grand Jury for
    the 426th Judicial District Court of Bell County,
    Texas, on May 22, 2013. (CR-I-4).
    Michael F. White, of Temple, Texas, represented the
    Appellant at trial (CR-I-11; RR-V-2).    A trial before
    the Court was held before the Honorable Martha J. White,
    Judge for the 264th Judicial District Court of Bell
    County, Texas, on January 12th, February 3, and March 19,
    of 2015.   Appellant was found guilty by the Court on
    February 3, 2015 (CR-I-50 through 52; RR-VI-71).      The
    Appellant had elected to have punishment set by the
    Court by virtue of is waiver of a jury trial (CR-I-35
    and 36).
    On March 19, 2015, the punishment phase of the trial
    was held (CR-I-50 through 52; RR-VII-4 through 43).     The
    court assessed punishment at Life in the Texas Department
    of Criminal Justice, Institutional Division (CR-I-50
    through 52; RR-VII-41).
    Appellant gave written Notice of Appeal on March
    24, 2015, (CR-I-43; RR-VII-42 and 43).    Counsel was
    appointed to represent Appellant on appeal on March 31,
    -2-
    2015.
    References to the record in the brief are based on
    the following chart:
    Clerk's Record--CR-I
    Reporter's Record
    RR-I--Master Index
    RR-II—-Writ of Habeas Corpus Hearing held May 3,
    2013
    RR-III—-Pre-trial Hearing held January 8, 2015
    RR-IV--Pre-trial Hearing held January 12, 2015
    RR-V—Non-jury Trial held January 12, 2015
    RR-VI--Sentencing Hearing held on February 3,
    2015
    RR-VII--Sentencing Hearing held on March 19,
    2015
    RR-VIII—-Exhibit Volume
    -3-
    ISSUE PRESENTED
    The State of Texas’ evidence does not support the
    Trial Court’s finding of Guilty of the offense of
    Burglary of a Habitation.
    STATEMENT OF FACTS FOR ISSUE PRESENTED
    On March 12, 2013, officers of the Killeen, Texas,
    Police Department were sent to a location in the city
    limits of Killeen.   That location was 3306 Thunder
    Creek Road, Killeen, Texas. (RR-VI-8)
    The officers who responded were Officers James
    Plank and Christopher Williams. (RR-VI-8 and 9)    Upon
    arrival, the officers made contact with Appellant,
    Tracy Larance Gordon, (RR-VI-9) and another person by
    the name of Keith Simms. (RR-VI-10)    They were walking
    out of the garage of a vacant house at that address.
    When Officer Plank asked Appellant what they were
    doing there, he reported that his wife had purchased
    the vacant house and they were there to clean the house
    up (RR-VI-11).   Plank indicated that this was plausible
    because there was a “For Sale” sign in the front yard.
    In order to check their story, Plank made contact
    with the person who had called the police and lived
    across the street from 3306 Thunder Creek Road. (RR-VI-
    -4-
    12)   He then returned to the vacant house to speak
    further with the Appellant.    He noticed that there was
    a garden hose connected to the water heater. Appellant
    explained that the water and other utilities were not
    turned on, so they were going to use the water in the
    water heater to clean the house. (RR-VI-13).
    Plank stated that he saw refrigerator doors and
    shelves inside the garage on the floor (RR-VI-13). When
    he entered the house, he noticed that there were pieces
    of a refrigerator there also and that the back door to
    the house had been kicked in. (RR-VI-16 and 17).
    They returned to the garage, a car pulled up, man
    got out and approached them.      This man told them that
    he was the realtor who had the contract to sell the
    house and his name was Franklin Adams.      Plank told
    Adams what the Appellant had told him about buying the
    house and Adams said this was not true and he believed
    Appellant and Simms were probably there to steal
    household appliances ((RR-VI-18).      The Appellant was
    placed under arrest at this time.
    When questioned by Appellant’s counsel, Plank made
    the statement that the only things in the house were
    appliances; no other types of furniture were present in
    the house (RR-VI-19).   There were no furnishings in the
    living room or the bedrooms. He said that when he was
    dispatched to the address, he was told that the house
    -5-
    was supposed to be vacant and had been for quite some
    time (RR-VI-20).
    Franklin Adams testified on examination by the
    State that the electricity and water service to the
    house had been totally disconnected and it would
    require work by the utility companies    to re-establish
    service (RR-VI-29).
    On cross-examination, Mr. Adams restated that on
    the day of Appellant’s arrest, there was no electricity
    in the house that he was arrested in. (RR-VI-36)    He
    also testified that there was no running water
    available in the house on that date.    He agreed with
    the Appellant’s counsel that the house had been vacant
    for seven (7) or more months and there had been no
    furnishings or utilities there during that time (RR-VI-
    37).
    -6-
    SUMMARY OF THE ARGUMENT
    Article 32.02, Texas Penal Code, states that a
    person commits an offense if, without the effective
    consent of the owner, they enter a habitation or
    building, not open to the public, with the intent to
    commit or commits a felony, theft, or an assault.    The
    statute further states the offense is a state jail
    felony if the building is not a habitation; a felony of
    the second degree if the building is a habitation; and
    the crime intended was a theft.
    Article 32.01, Texas Penal Code, entitled
    “Definitions” states that a habitation means a
    structure adapted for overnight accommodation of
    persons.
    The structure involved in the case before the Court
    does not meet the qualifications required by law to be
    considered to be a “habitation”.
    By wrongfully classifying the structure involved in
    the offense a habitation, the Trial Court subjected
    Appellant to maximum sentence of twenty (20) years the
    the prison.   If the structure had been correctly
    classified as a building, the maximum sentence
    -7-
    Appellant faced would have been two (2) years in a
    State Jail.
    Further, because the Trial Court made a finding
    that Appellant had been previously found guilty of a
    prior felony conviction, Appellant was subjected to and
    received a Life Sentence in prison.
    ARGUMENT AND AUTHORITIES
    Texas law has long held that for a building to
    qualify for the designation “habitation” it must be
    adapted for the overnight accommodation of persons.
    That includes having working utilities, such as,
    electricity, water, and natural gas that are connected
    to the house and actually functional.
    It also contemplates there be furnishings in the
    house that make it livable.    This would contemplate
    things such as bedroom furniture, living room chairs
    and/or couches.    It would also include working kitchen
    appliances and bathroom accommodations.      These items
    would meet the requirement only if they were capable of
    carrying out their designed use.
    A house built and designed to be a place for
    -8-
    persons to reside would not qualify as “habitation” if
    it did not meet this criteria.   If the structure has
    been abandoned or vacant for a long period of time,
    this would add to the argument that it did not qualify
    as a “habitation”. Jones v. State, 
    532 S.W.2d 596
    (Tex.Cr.App. 1976) overruled on other grounds; Moss v.
    State, 
    574 S.W.2d 542
    (Tx.Cr.App. 1978) overruled on
    other grounds; Blankenship v. State, 
    780 S.W.2d 198
    (Tx.Cr.App. 1989); and Chandler v. State; 
    790 S.W.2d 635
    (Tx.Cr.App. 1990).
    By finding Appellant guilty of a Burglary of a
    Habitation, as opposed to Burglary of a Building,
    Appellant was found guilty of a Second Degree Felony
    with a maximum possible punishment of twenty (20)
    years.   If he had been found guilty of the proper
    charge, the maximum punishment would have been two (2)
    years for a State Jail Felony.   Since the Trial Court
    also made a finding that Appellant had a prior felony
    conviction, he was sentenced to Life in prison.   This
    shows an unconscionable disparity of the punishment
    received by Appellant. Because of this error, the
    conviction should be reversed.
    -9-
    CONCLUSION AND PRAYER
    WHEREFORE, PREMISES CONSIDERED, the Appellant
    requests the Court to reverse the conviction of the
    Appellant on the basis of the errors stated and remand
    the case for a new trial.
    Respectfully Submitted,
    /s/ Troy C. Hurley
    TROY C. HURLEY
    Attorney for Appellant
    P.O. Box 767
    312 East Central Avenue
    Belton, Texas 76513
    (254) 939-9341
    FAX (254) 939-2870
    SBA No. 10312000
    -10-
    CERTIFICATE OF SERVICE UPON STATE
    This is to certify that a true and correct copy
    hereof was served upon Bob D. Odom, counsel for the
    State of Texas, at the Bell County District Attorney's
    Office in Belton, Texas, on this the 19th day of
    November, 2015.
    /s/ Troy C. Hurley
    TROY C. HURLEY
    Attorney at Law
    -11-
    CERTIFICATE OF SERVICE UPON APPELLANT
    I, the undersigned court-appointed counsel for
    Appellant, hereby certify that a true and correct copy
    hereof has been served upon the Appellant by depositing
    same, properly addressed to him:
    TRACY LARANCE GORDON
    Inmate No. 01990081
    Polunsky Unit
    1872 FM 350 South
    Livingston, Texas 77351
    in the United States Mail.   I further certify that a
    letter to Appellant, which is attached hereto,
    accompanied the copy of the brief and advised him of
    his right to add to or delete from this brief.
    Appellant was also advised of his right to a copy of
    the record of the proceedings against him.
    SIGNED this 19th day of November, 2015.
    /s/ Troy C. Hurley
    TROY C. HURLEY
    Attorney at Law
    -12-
    TROY C. HURLEY
    Attorney at Law
    P.O. Box 767
    312 East Central Avenue
    Belton, Texas 76513
    (254) 939-9341 FAX (254) 939-2870
    November 19, 2015
    TRACY LARANCE GORDON
    Inmate No. 01990081
    Polunsky Unit
    1872 FM 350 South
    Livingston, Texas 77351
    Re: Tracy Larance Gordon v. State
    Cause No. 03-15-00239-CR
    (Dist. Ct. No. 71,325)
    Dear Mr. Gordon:
    Enclosed you will find a copy of the brief which we
    are filing in your behalf in the Texas Court of Appeals
    in Austin, Texas.    You are hereby advised that you have
    a right to add to or delete from this brief should you
    desire to do so.    We would further advise you that, as
    an indigent, you may request a record in your case by
    contacting the District Clerk at the Bell County
    Courthouse in Belton, Texas.
    -13-
    We will continue to keep you informed of the
    progress of your appeal.
    Sincerely,
    /s/ Troy C. Hurley
    Troy C. Hurley
    Attorney at Law
    TCH/lt
    Enclosure
    -14-
    CERTIFICATE OF COMPLIANCE
    I hereby certify that this brief complies with the
    length limitations of Texas Rule of Appellate Procedure
    9.4(i)(3) as this brief contains one thousand four
    hundred seventy-seven (1,477) words, excluding the parts
    of the brief exempted by Texas Rule of Appellate
    Procedure 9.4(i)(1); a number which is less than the
    15,000 words allowed under Rule 9.4(i)(2)(B).
    I also certify that this brief complies with the
    typeface requirements of Texas Rule of Appellate
    Procedure 9.4(e) because this has been written with a
    conventional typeface using a 14-point font (with
    footnotes no smaller than 12-points) using Microsoft
    Office Word 2010 (version 14), in Courier New font.
    /s/ Troy C. Hurley
    Troy C. Hurley
    -15-
    

Document Info

Docket Number: 03-15-00239-CR

Filed Date: 11/19/2015

Precedential Status: Precedential

Modified Date: 9/30/2016