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Fowler v. State

Court of Appeals of Texas, Sixth District, Texarkana

June 15, 2018

JAMEL MCLELLAND FOWLER, Appellant
v.
THE STATE OF TEXAS, Appellee

          Date Submitted: May 16, 2018

          On Appeal from the 196th District Court Hunt County, Texas Trial Court No. 30456

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

          OPINION ON REMAND

          BAILEY C. MOSELEY JUSTICE.

         Jamel McLelland Fowler was convicted by a Hunt County jury of theft of a Kawasaki mule all-terrain vehicle (the ATV) valued at $1, 500.00 or more, but less than $20, 000.00, and was sentenced to two years' incarceration. On appeal, [1] Fowler originally raised three points of error. He challenged the sufficiency of the evidence supporting his conviction, asserted error in the admission of extraneous-offense evidence, and claimed reversible error in the trial court's admission of an unauthenticated video-recorded exhibit into evidence.

         This Court found that there was sufficient evidence to support Fowler's conviction, but agreed that the trial court erred when it admitted the video exhibit, and determined that his conviction should be reversed. The Texas Court of Criminal Appeals reversed our ruling and remanded the matter to us with instructions that we were to address Fowler's second issue.[2] In his second issue, Fowler asserts that the trial court erred by admitting evidence of extraneous offenses from Collin County, which he claims were not linked to him, were not relevant, were unfairly prejudicial, and misled the jury.

         I. Background

         The State returned three indictments in Hunt County against Fowler arising out of a series of burglaries and thefts in and around the Royse City area.[3] The State tried all three cases together. The indictment in this case charged Fowler with stealing the ATV from Paul Blassingame. In our prior opinion in this case, we set forth the evidence relevant to this appeal:

Blassingame testified that the ATV had been located on property he owned in Hunt County, which he visited often. In November 2014, he went to that property, where he discovered that the ATV was missing, a fact that he duly reported to the Hunt County Sheriff's Office as a theft. Law enforcement officers in Royse City of neighboring Rockwall County found the ATV on December 6, 2014, while investigating a burglary at a concrete supply business. The ATV was identified by its vehicle identification number and returned to Blassingame.
The ATV was found hidden in a wooded area beyond a field on property owned by Lattimore Materials, 5 a ready-mix concrete business that had suffered a series of burglaries over the months preceding the discovery of the ATV. While investigating one of the burglaries that occurred at Lattimore Materials in December 2014, Royse City policemen noticed tire tracks (which they believed were made by an ATV) which led from the building that had been burglarized to a tree line; just beyond the tree line was the copse of trees in which the ATV was hidden. There was trash scattered on the ground around the ATV, among which was a receipt from a Family Dollar store that included the time and date of its issuance. Further, within fifteen feet or so of the ATV, the policemen found packaging in which a box cutter had been located, and a box cutter was one of the items listed on the Family Dollar store receipt. Royse City Police Officer Jaime Torrez took the receipt to the store that had issued it and was able to view the store's surveillance video recording showing what appeared to be the purchase memorialized by the receipt. The store was unable to duplicate the recording or render it to a format Torrez could take with him, so he and an officer he was training used Torrez' department-issued camera to record the surveillance footage as it played on the store's video monitor. The footage's date and time information corresponded generally to the date on the receipt. Particularly of note to the State's case, the recording showed a man entering the store then completing a purchase, and it was the State's theory at trial that that man was Fowler.
In addition to those circumstances, in the weeks leading up to the December discovery of Blassingame's ATV, officers had found a blue Nissan Xterra vehicle in the area under suspicious circumstances. On November 3, 2014, at about 1:45 a.m., Royse City Police Sergeant Ryan Curtis and Rockwall County Deputy Brad Dick found the truck parked on a dirt road behind some industrial businesses in a poorly lit area.6 Virginia Cox (eventually named as a co-defendant with Fowler in one or more of his indictments) was sitting in the Xterra. Cox's explanation to the law enforcement officers of her whereabouts was that she and her boyfriend had run out of gasoline and that he had gone back to a gas station for fuel. Because one of the businesses (Four Brothers, a mower and tractor dealer) behind which Cox's vehicle was parked had been the victim of multiple burglaries in the past, Curtis was suspicious of Cox. Curtis saw several sets of bolt cutters in the Xterra7 and got another police officer to go to the nearest gas station. That officer encountered no one purporting to be in search of gasoline for a stalled vehicle. When Curtis asked Cox to attempt to start the vehicle, it started with no problem (thereby casting doubt on Cox's story that it had no fuel).
At about 6:00 a.m. that same day, Royse City Police Officers William Potter and Tim West observed the same blue Xterra in another part of Royse City parked on the side of a local county road. As previously, the vehicle was occupied only by Cox, and when she was questioned by the policemen, she made reference once again to a male companion. Later that morning, Potter and West again encountered the Xterra, this time containing both Cox and Fowler. Between these two encounters, Potter had responded to a call regarding an alleged theft at the Four Brothers mower and tractor dealership. The dealership representatives called Potter's attention to three mowers, each of which had their gasoline caps removed and none of which held any gasoline in their tanks.8
After that, Potter returned to the Xterra and questioned Fowler about involvement in any theft of gasoline, which Fowler denied. From our reading of the record, Potter took no further action with respect to Fowler after that point.9 There was another encounter between West and Potter, on the one hand, and Fowler and Cox, on the other, on either November 3 or 10 wherein Fowler allowed the officers to look inside the Xterra. At that time, the officers noticed that there were three bolt cutters, binoculars, and a pry bar inside the vehicle.[4] When questioned about those items, Fowler attempted to explain the presence of the tools in his vehicle by saying he was an electrician. That explanation failed to quell West's suspicions of Fowler because (as West explained) he ran a construction company and was aware of the tools and equipment used by electricians, and those items would not ordinarily be used by electricians.10 This encounter occurred near Lattimore Materials, which had suffered multiple recent burglaries.
Testimony about the burglaries at Lattimore Materials revealed that a part of the method of operation of the burglars was to sever cables or heavy wires and remove them from the site. In addition, the burglars had cut padlocks on the gates of the premises more than once. While investigating one of the burglaries, Torrez found three sets of bolt cutters near some of the cut cables, and he suspected that the bolt cutters had been used to cut the cables.[5]
5 At the time of the burglaries, the Lattimore Materials facility located on the subject property was non-operational. Duane Wetteland, the area manager for Lattimore Materials, described other facilities owned by the company and explained that business needs determined whether the facility on the property at issue was operational or not. Wetteland testified that he periodically checked on the facility when it was non-operational.
6 Curtis described the area where the Xterra was parked as "a dirt road that you really can't even travel through." He continued, "I mean, I'm unaware of any vehicles being able to travel through it for years."
7 The issue of consent to the search of the vehicle was not challenged by Fowler at trial or in ...

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