State v. Fowler
| Decision Date | 06 July 2018 |
| Docket Number | No. 06-16-00032-CR,06-16-00032-CR |
| Citation | 555 S.W.3d 592 |
| Parties | The STATE of Texas, Appellant v. Jamel McLelland FOWLER, Appellee |
| Court | Texas Court of Appeals |
Jessica Edwards, Attorney at Law, Greenville, TX, for Appellant.
G. Calvin Grogan, Assistant District Attorney, Noble D. Walker, Hunt County District Attorney, Greenville, TX, for Appellee.
Before Morriss, C.J., Moseley and Burgess, JJ.
The State returned three indictments against Jamel McLelland Fowler arising out of a series of burglaries and thefts in and around the Royse City, Texas, area.1 The State tried all three cases together. The first case involved the theft of an all-terrain vehicle belonging to Paul Blassingame (the ATV case), and the second case involved the theft of a trailer (the theft of trailer case). The present case arose out of two burglaries that occurred at a building on William Martin’s property.2 Additionally, the State introduced extraneous evidence of other burglaries and thefts that occurred during the same time period in the surrounding counties.
According to Martin, during the first burglary, a significant amount of his property was stolen from the building (the first Martin burglary). After the first Martin burglary, Martin installed two game cameras inside the building. Sometime after the first Martin burglary, Martin’s building was burglarized again, and the game cameras were stolen (the second Martin burglary). When viewing his property after the second Martin burglary, Martin found a cell phone near a section of fence that had recently been cut which was approximately twenty-five feet from the building. The Hunt County Sheriff’s Office determined that the cell phone was registered to a "Mr. Fowler." However, the owner’s first name was not determined.
The jury found Fowler guilty of burglarizing Martin’s property "on or about December 14, 2014."3 With the State’s consent, Fowler withdrew his request that the jury decide punishment. After a punishment hearing, the trial court sentenced Fowler to serve six months' incarceration in the Texas Department of Criminal Justice. The trial court also ordered Fowler to pay court costs in the amount of $266.25. However, after pronouncing sentence, the trial court granted Fowler’s motion for new trial on the basis that the evidence was insufficient to support the jury’s verdict and then entered a judgment of acquittal based on double jeopardy grounds. The State appealed the trial court’s ruling to this Court.
In its Brief on Direct Appeal, the State argued that all of the events described by Martin occurred on December 11, 2014:
Mr. Martin had not been out to his property for about a week, and on December 11th, according to Dep. Robinson[,] he reported lots of property stolen from his airport hangar building. RR. Vol. 8, p. 268, Vol. 9, p. 176. Mr. Martin ultimately determined that only two game cameras were stolen from inside the building on this occasion. RR. Vol. 8, p. 287.
State’s Brief on Direct Appeal, p. 13. The State then argued that the same circumstantial evidence that linked Fowler to the other charged and extraneous offenses also "Linked Appellee to the Burglary of Mr. Martin’s Building on or Before December 12, 2014." State’s Brief on Direct Appeal, p. 20.
In reviewing the record, we observed that Martin testified (1) that this property had been burglarized twice, (2) that a lot of his property was stolen during the first burglary, (3) that he gave a statement to the deputy sheriff on the day he investigated the first burglary, (4) that his statement was dated December 11, 2014, and (5) that the second burglary—where only the game cameras were stolen and the cell phone was found—occurred five to six weeks after the first burglary.4 Because the State argued that the evidence was sufficient to support Fowler’s guilt for the burglary that occurred on December 11, 2014, we addressed the sufficiency of the evidence to support Fowler’s conviction for the first Martin burglary that Martin testified had occurred on December 11, 2014. Because Martin testified that the cell phone was not found until five to six weeks after that date, we held that the cell phone was unrelated to the first Martin burglary. Accordingly, we affirmed the trial court’s ruling. State v. Fowler , 532 S.W.3d 456 (Tex. App.—Texarkana 2017), judgment vacated , 523 S.W.3d 681 (Tex. Crim. App. 2017) (per curiam).
The State then filed a petition for discretionary review (PDR) with the Court of Criminal Appeals. In its PDR, the State argued that the events described by Martin occurred on different dates. It then argued, State’s PDR, p. 4. It also argued, for the first time, that due to the "on or about" language in the indictment, the evidence is sufficient if it proves either of the two burglaries occurred at Martin’s property.
The Court of Criminal Appeals granted the State’s PDR and vacated our prior opinion without briefing from the parties. State v. Fowler , 523 S.W.3d at 681. In its opinion, the Court of Criminal Appeals agreed with the State’s position in its PDR—i.e., that the events described by Martin occurred on separate dates and that we considered the wrong offense—and it directed us to consider the sufficiency of the evidence applicable to the "second burglary." Id.
Accordingly, we must now evaluate the sufficiency of the evidence based on the second Martin burglary. Yet, a question remains regarding the dates that the two Martin burglaries occurred.
As noted above, the State introduced evidence of several thefts and burglaries—some of them as extraneous offenses—that occurred in the Royse City area in November and December 2014. The State argued at trial that all of the charged and extraneous thefts and burglaries were related and that the cumulative evidence from those offenses established Fowler’s guilt for the Martin burglary beyond a reasonable doubt. Yet, if—as Martin testified on direct examination—the first Martin burglary occurred on December 11, 2014, and the second Martin burglary occurred five to six weeks later, then the second Martin burglary occurred almost two months after the last of the other timeline events. On the other hand, if—as the State urged in its PDR—the second Martin burglary occurred on December 11, 2014, and the first Martin burglary occurred in November 2014, then the two Martin burglaries fall neatly within the November/December timeline covering all of the Royse City burglaries. Therefore, in order to evaluate the sufficiency of the evidence based on the second Martin burglary, we must first resolve the question of when—according to the record—the two Martin burglaries occurred.5
Clearly, if the jury had seen this affidavit, there would be enough evidence for it to have determined that the State’s current timeline is correct. Nevertheless, State’s Exhibit 20 was never offered or admitted into evidence, either as a trial exhibit or for appellate purposes.
In Harden v. State , the Court of Criminal Appeals ruled that a photograph which was marked as an exhibit, but never formally offered or admitted into evidence, could still be considered for purposes of evaluating the sufficiency of the evidence because it had been displayed to the jury and the defendant failed to object. Harden v. State , 417 S.W.2d 170, 174 (Tex. Crim. App. 1967) (op. on reh'g). Yet, in order for this rule to apply, the proponent must establish that the exhibit’s contents were displayed before the jury, "treated by the court and the parties as if it had been admitted," or were the subject of "counsel’s argument and the court’s instructions," and the opposing party failed to object. Vargas v. State , 838 S.W.2d 552, 559 (Tex. Crim. App. 1992) (Baird, J., concurring in part, dissenting in part). Beyond Martin’s simple acknowledgement of his signature and the date of the affidavit, however, the parties did not discuss the contents of State’s Exhibit 20, it was not displayed to the jury, neither counsel discussed the exhibit in their arguments to the jury, and the trial court did not instruct the jury on that issue. Thus, because we are constrained to look only at the evidence that was introduced at trial and presented to the jury, State’s Exhibit 20 cannot be considered as evidence by us in reviewing the sufficiency of the evidence.6
Additionally, the State’s PDR position that the first Martin burglary happened in November and the second Martin burglary happened in December...
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