ACCEPTED
06-14-00088-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/22/2014 11:47:48 PM
DEBBIE AUTREY
CLERK
NOS. 06-14-00088-CR, 06-14-00089-CR,
06-14-00091-CR, 06-14-00092-CR FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
___________________________________________________________
12/30/2014 1:59:00 PM
DEBBIE AUTREY
IN THE COURT OF APPEALS SIXTH DISTRICT Clerk
AT TEXARKANA, TEXAS
____________________________________________________________
SAMUEL DELEON GARZA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
____________________________________________________________
APPEAL IN CAUSE NUMBERs 28,996, 28,997, 28,999,
AND 29,016
IN THE 196TH JUDICIAL DISTRICT COURT
OF HUNT COUNTY, TEXAS
____________________________________________________________
BRIEF FOR APPELLANT
____________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now the Appellant and submits this brief pursuant to the
provisions of the Texas Rules of Appellate Procedure in support of his
request for the judgment of convictions to be overturned.
Appellant Requests Oral Argument
IDENTITY OF PARTIES AND COUNSEL
Appellant’s Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403-0011
Appellant’s Trial Attorney:
Chris Castanon
P.O. Box 851266
Mesquite, Texas 75149
Appellee:
The State of Texas by and through
Noble Walker
Hunt County District Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401
Appellee’s Trial Counsel:
G. Calvin Grogen, V
Hunt County District Attorney’s Office
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401
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TABLE OF CONTENTS
Identity of the Parties and Counsel ............................................................. 2
Table of Contents ....................................................................................... 3
Index of Authorities ..................................................................................... 4
Statement of the Case ................................................................................ 6
Issues Presented ........................................................................................ 7
Statement of the Facts ................................................................................ 8
Summary of the Argument .......................................................................... 9
Argument and Authorities ......................................................................... 10
Issue Number One ......................................................................... 10
The evidence is legally insufficient to prove beyond reasonable
doubt, that Appellant and the victim were in a ‘dating
relationship” in these cases.
Prayer for relief ........................................................................................ 16
Certificate of compliance of typeface and Word Count ............................. 17
Certificate of Service ................................................................................. 18
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INDEX OF AUTHORITIES
FEDERAL CASES:
Jackson v. Virginia, 443 U.S. 307. ............................................................ 10
STATE CASES:
Ates v. State, 644 S.W.2d 843 (Tex.App.1982)......................................... 14
Gross v. State, 380 S.W.3d 181 (Tex.Crim.App.2012).. ............................ 14
Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App.2007) .......................... 14
Laster v. State, 275 S.W. 3d 512 (Tex. Crim. App. 2009) ......................... 10
Johnson v. State 673 SW. 2d 190 (Tex. Crim. App. 1984) ........................ 14
Louis v. State, 159S.W.3d 236(Tex. App.—Beaumont 2005, pet.ref'd) ..... 13
Navarro v.State, 810 S.W.2d 432 (Tex. App.—San Antonio 1991, pet.
refd) .......................................................................................................... 13
Reedy v. State, 214 S.W. 3d 567 (Tex. App.—Austin 2006) ..................... 13
Shelton v. State, 795 S.W.2d 162, 167 (Tex.Crim.App.1989). .................. 13
Urbano v. State, 837 S.W.2d 114, 116 (Tex.Crim.App. 1992). .................. 13
Washington v. State 127 S.W. 3d 197 (Tex. App. Houston [1st Dist.] 2003,
pet. dism’d). .............................................................................................. 10
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STATE STATUTES:
Tex. Penal Code Ann. § 22.01(a)(1) (Casemaker 2014) ........................... 10
Tex. Fam. Code Ann. § 71.0021(b)&(c) (Casemaker 2014) ...................... 11
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STATEMENT OF THE CASE
This is an appeal of the judgments and sentences in a criminal case
for the 196th Judicial District, in Hunt County, Texas. Appellant was
convicted of Assault Family/Household Member W/ Prev Conv 28,996,
Assault Family/Household Member W/ Prev Conv 28,997, Assault
Family/Household Member W/ Prev Conv in 28,999, Assault
Family/Household Member W/ Prev Conv in 29,016.
Appellant was assessed a sentence of 40 years 28,996, 52 years in
28,997, 45 years in 29,016, 80 in 29,017.
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ISSUES PRESENTED
Issue One: The evidence is legally insufficient to prove beyond
reasonable doubt, that Appellant and the Victim have a dating
relationship.
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STATEMENT OF THE FACTS
Maria Ulloa stated that she first met appellant in December of 2012.
(RR Vol. 4 p. 94). Appellant got to know Ulloa because he had requested
to see a truck she was selling. Ulloa testified that she was married to a
man, other than the Appellant named Felipe Arreola, who was the father of
her son. (RR Vol. 4. P. 95). Another man, Juan Arzola was the father of
her other two children. (RR Vol. 4 p.95-96). Ulloa stated that Appellant
would use her vehicle because he did not have his own, but would also use
other people’s as well. (RR Vol. 4 p.107). Ulloa, testified that Appellant
assaulted her on February 2nd and 4th of 2013. (RR Vol. 4 p. 102), (RR Vol.
4 p. 108- 114).
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SUMMARY OF THE ARGUMENT
Issue One: The evidence is legally insufficient to prove beyond
reasonable doubt, that Appellant committed Injury.
The evidence presented at trial could not have led a rational jury to
find that Appellant and the victim were in a dating relationship a defined by
the Texas Family Code. Concluding so, based on the evidence presented
at trial, would have been speculation or suspicion by the factfinder. Thus,
the evidence is legally insufficient to convict Appellant in this case.
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ARGUMENT
Issue One: The evidence is legally insufficient to support
the conviction of Appellant
In a criminal case, an appellant may raise legal sufficiency for the first
time on appeal. Washington v. State 127 S.W. 3d 197 (Tex. App. Houston
[1st Dist.] 2003, pet. dism’d). When reviewing legal sufficiency of the
evidence, a court must look at all of the evidence in the light most favorable
to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense were proven beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319; Vodochodsky v.
State, 158 S.W. 3d 502, (Tex. Crim. App. 2005). While giving the proper
deference to the factfinder’s role this court must safeguard against the rare
occurrence when a factfinder does not act rationally. Laster v. State, 275
S.W. 3d 512 (Tex. Crim. App. 2009).
In this case Appellant was charged Assault, Family Violence in each
cause. (CR Vol. 1 p. 11). Under the Texas Penal Code, " [a] person
commits an offense [of assault] if the person ... intentionally, knowingly, or
recklessly, causes bodily injury to another...." Tex. Penal Code Ann. §
22.01(a)(1) (Casemaker 2014).
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An assault becomes a felony in the third degree if at trial it is shown
that the offence is committed against a person whose relationship to or
association with the defendant is described in Section 71.0021(b). Tex.
Penal Code Ann. § 22.01(b) (Casemaker 2014).
A dating relationship means a relationship between individuals who
have or have had a continuing relationship of romantic or intimate nature.
The existence of such a relationship; shall be determined based on
consideration of:
(1) The length of the relationship;
(2) The nature of the relationship; and
(3) The frequency and type of interaction between the persons
involved in the relationship.
(4)
Tex. Fam. Code Ann. § 71.0021(b) (Casemaker 2014).
A casual acquaintanceship or ordinary fraternization in a business or
social context does not constitute a “dating relationship” under Subsection
(b). Tex. Fam. Code Ann. § 71.0021(c) (Casemaker 2014).
Based on the evidence at trial the Appellant and Ulloa had no more
than ordinary fraternization or acquaintanceship.
The length of the relationship
Here Ulloa testified that she first got to know the Appellant in
December and after the incident on February 5, 2013 she did not see him
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again until April 7, 2013. The length of their acquaintance lasted no more
than a mere month and a half to two months.
The nature of the relationship
Ulloa described her interactions with appellant to be not much more
visits at her house. Appellant’s interactions amounted to little more than
that he would visit her home and eat dinner that she had cooked. (RR Vol.
4 p. 152). It is true that she testified he stayed the evening, but it was
never more than a few days and Appellant never had a key to her home.
(RR Vol. 4 p. 98). In fact ,at the time Appellant and Ulloa knew each other,
Appellant did not have a job. (RR Vol. 4 p. 97). There is never a clear
indication that Appellant had his own place to stay and he relied on others
for transportation. (RR Vol. 4 p. 107)
Ulloa does not testify clearly that she had an intimate relationship with
Appellant. At best the evidence showed that Appellant stayed with Ulloa
because he was homeless, and did not have means to support himself.
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The frequency and type of interaction between the persons
involved in the relationship
Again, Ulloa testified that Appellant stayed at her home no more than
three times a week and even kept belongings at her house. (RR Vol. 4 p.
97). The evidence does not support more than Ulloa and Appellant staying
and eating occasionally for a few months.
Proof that amounts to only a strong suspicion of guilt or a mere
probability of guilt is insufficient to sustain a conviction. Urbano v. State,
837 S.W.2d 114, 116 (Tex.Crim.App. 1992); Navarro v.State, 810 S.W.2d
432, 435 (Tex. App.—San Antonio 1991, pet. refd).
If circumstantial evidence provides no more than a suspicion, the jury
is not permitted to reach a speculative conclusion. Louis v. State,
159S.W.3d 236, 246 (Tex. App.—Beaumont 2005, pet.ref'd). It is the
function of appellate courts to ensure that no one is convicted of a crime
except upon proof beyond a reasonable doubt. Shelton v. State, 795
S.W.2d 162, 167 (Tex.Crim.App.1989). Due process requires no less.
Reedy v. State, 214 S.W. 3d 567 (Tex. App.—Austin 2006).
In this case the State did not prove beyond a reasonable doubt that
Defendant and the victim were in a “dating relationship.” At most the
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evidence shows that Appellant and the victim had a casual
acquaintanceship, either in social context or even charity.
"It is a well-recognized principle of law in this State that, to sustain a
conviction, it should appear not only that an offense as charged has been
committed but there should also be proof to a degree of certainty greater
than a mere probability of strong suspicion tending to establish that the
party charged was the person who committed or was a participant in its
commission. There must be legal and competent evidence pertinently
identifying the defendant with the transaction constituting the offense
charged against him." Ates v. State, 644 S.W.2d 843 (Tex.App.1982);
Johnson v. State 673 SW. 2d 190 Tex. Crim. App. 1984).
Again, even if the fact finder accepts that the Appellant saw each
other on a regular basis for a short time, based on the testimony of Ulloa
there is simply no evidence that she and the Appellant were in a “dating
relationship” defined under the code.
Juries are permitted to draw reasonable inferences from the
evidence, but they are not permitted to draw conclusions based on
speculation. Gross v. State, 380 S.W.3d 181 (Tex.Crim.App.2012); Hooper
v. State, 214 S.W.3d 9, 15 (Tex.Crim.App.2007). Speculation is the mere
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theorizing or guessing about the possible meaning of the facts and
evidence presented Id. at 16.
Other witnesses, witnesses do not add evidence that Appellant was a
party beyond a reasonable doubt. It would only be theorizing or guessing
about the possible meaning of the facts and evidence presented to
conclude that Appellant and Ulloa were in a dating relationship.
In this case, there was no testimony or evidence brought at trial that a
rational jury could have found beyond a reasonable doubt that Appellant
and Ulloa were in a dating relationship. Concluding so, based on the
evidence presented at trial, would have been speculation or suspicion by
the factfinder. Thus, the evidence is legally insufficient as indicted and with
the evidence presented at trial. At most, Appellant should have been
charged with Class A misdemeanors in these causes.
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PRAYER FOR RELIEF
Wherefore, premises considered, Appellant respectfully prays that his
conviction in the above entitled and numbered cause be reversed and
acquit him. Appellant further prays for all other lawful relief to which he
may be entitled, at law or in equity.
Respectfully submitted,
_____/s/ Jason A. Duff____
Jason A. Duff
State Bar No. 24059696
2615 Lee Street
P.O. Box 11
Greenville, TX 75403-0011
Attorney for the Appellant
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CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
In accordance with Texas Rules of Appellate Procedure 9.4 (e) and
(i), the undersigned attorney or record certifies that Appellants Brief
contains 14-point typeface of the body of the brief, 12-point typeface for
footnotes in the brief and contains 1,362 words, excluding those words
identified as not being counted in appellate rule of procedure 9.4(i)(1), and
was prepared on Microsoft Word 2010.
_____/s/ Jason A. Duff____
Jason A. Duff
Attorney for the Appellant
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and
foregoing instrument was forwarded to Hunt County District Attorney Noble
Walker, P.O. Box, 1097, Greenville, Texas 75403, and the Court of
Appeals on this the 22nd day of December 2014, by Electronic Filing
Service.
_____/s/ Jason A. Duff____
Jason A. Duff
Attorney for the Appellant
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