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State v. Fowler

Court of Appeals of Texas, Sixth District, Texarkana

March 14, 2017


          Date Submitted: November 7, 2016

         On Appeal from the 196th District Court Hunt County, Texas Trial Court No. 30, 511

          Before Morriss, C.J., Moseley and Burgess, JJ.


          Ralph K. Burgess Justice.

         After Jamel McLelland Fowler was found guilty of burglary of a building by a Hunt County jury, the trial court granted Fowler's motion for new trial, then entered a judgment of acquittal.[1]The State has appealed. Finding no abuse of discretion by the trial court, we affirm the judgment of acquittal.

         I. Procedural History

         The State charged Fowler with three offenses: (1) burglary of a building owned by William Martin (the Martin burglary case); (2) a state jail felony offense of theft alleging Fowler stole an all-terrain vehicle belonging to Paul Blassingame (the ATV case); and (3) an alleged burglary of a building alleging Fowler stole a trailer (the theft of trailer case). Each alleged crime occurred on different dates and involved different victims. The State moved to try all three cases together, alleging they "constitute[d] the same criminal episode because they are the repeated commission of similar acts." Fowler did not oppose the consolidation.[2]

         After three days of trial, the State dismissed the theft of a trailer case. The trial court granted Fowler's motion for new trial and entered a judgment of acquittal in the Martin burglary case, and the jury convicted Fowler of theft in the ATV case. Fowler's appeal of the theft conviction in the ATV case is still pending in this Court. In this case, we address the State's appeal of the trial court's order granting new trial and judgment of acquittal in the Martin burglary case.

         II. Factual Background

         Martin owned real property in Hunt County which contained a home, a woodshop, and an aircraft hangar. The property was enclosed with a fence and a gate. Although Martin did not reside on the property, he traveled there every two or three days to inspect it. On December 14, 2014, he noticed that the aircraft hangar had been burglarized. Martin observed that some equipment and aircraft parts were missing, including "some carburetors, some aircraft equipment panel meters, [and] some ignition systems" that were "[v]ery expensive" and could be easily sold. Martin reported the burglary to the Hunt County Sheriff's Department.

         Hunt County Sheriff's Deputy Joshua Robinson met with Martin at his property. Robinson investigated the scene and gave Martin paperwork to list missing or stolen items. Robinson observed that an office in one of Martin's buildings was in disarray and appeared as if it had been rummaged through. Robinson found a fingerprint on a filing cabinet and made a copy of it for his investigation. On direct examination, Robinson testified that it was a complete fingerprint, but on cross-examination, he acknowledged that his report said it was a partial fingerprint.

         Martin also observed ATV tracks along the back fence inside his property, and he showed them to Robinson, who took photographs of them. Martin described the tracks as "just imprints in the grass." Robinson testified that he did not investigate the cut fence because it was very muddy that day. The State's theory at trial was that the tracks observed by Martin were made by the ATV taken in the ATV case.

         In response to the burglary, Martin installed two game cameras in the aircraft hangar. About five to six weeks afterward, however, Martin observed the property had been burglarized a second time and that the game cameras had been stolen. Martin knew that this was a separate burglary, and not merely damage related to the first burglary, because a new section of fencing had been cut and a previously secured dead-bolted door had been forced open. Martin observed that the burglar had gained entrance to his property each time by cutting holes in his fence. The first time, the burglar cut two holes in the fence, and the second time he cut a third hole. Each of the holes was approximately six feet wide.

         After the second burglary, Martin found an Alcatel cell phone near the location where the third section of fence had been cut. The telephone was about three feet from the newly cut fence section, which was approximately twenty-five feet from the hangar. Martin testified that he put the cell phone in a plastic bag, taking care not to touch it, and then took it to the Sheriff's Department where he gave it to an investigator. While Martin was there, the investigator was able to turn it on and operate it.[3]

         Nathan Erhart was the operations captain for the Hunt County Sheriff's Department. Erhart testified that Investigator Phillips gave him a cell phone number to research using a data service called CLEAR. Erhart testified that CLEAR was a paid service used by law enforcement agencies for ...

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