ACCEPTED
06-14-00090-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/23/2014 12:40:42 AM
DEBBIE AUTREY
CLERK
NO. 06-14-00090-CR
___________________________________________________________
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE COURT OF APPEALS SIXTH DISTRICT
12/30/2014 1:55:00 PM
DEBBIE AUTREY
AT TEXARKANA, TEXAS Clerk
____________________________________________________________
SAMUEL DELEON GARZA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
____________________________________________________________
APPEAL IN CAUSE NUMBER 28,998
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 committed Burglary of a Habitation.
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)......................................... 10
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) ...................... 12
Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001) .................. 12
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. § 1.07(a)(8) (Casemaker 2014) ............................. 11
Tex. Penal Code Ann. § 6.03(a)&(b) (Casemaker 2014) ........................... 11
Tex. Penal Code Ann. § 22.01(a)(1) (Casemaker 2014) ........................... 11
Tex. Penal Code Ann. § 30.01(a)(3) (Casemaker 2014) ........................... 10
Tex. Penal Code Ann. § 30.01(c)(2) (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 Burglary of a Habitation 28,998. Appellant was assessed a
sentence of 73 years 28,998
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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
The victim Maria Ulloa testified at trial that Appellant assaulted her on
February 2, 2013. In that episode Ulloa stated that Appellant by striking
her in the mouth and it caused her pain. (RR Vol. 4 p. 102-4) Ulloa then
stated that two days later, on February 4, 2014 Appellant assaulted her
again on two separate occasions. (RR Vol. 4 p 108). In the first instance
of February 4, 2013, Ulna stated that the Appellant kicked her in the leg
which caused pain and bruising. (RR Vol. 4 p.108-114). Then in the
second episode of February 4, 2013, Appellant, according to Ulloa, arrived
on her door step to apologize. (RR Vol. 4 p. 124). But when Ulloa refused
to speak to Appellant, he apparently pushed her, yanked her hair, and
stuck her till she was laying on the ground in pain. (RR Vol. 4. p. 123-128).
Ulloa called 911 and made a police report. (RR Vol. 4 p. 128). Ulloa
testified that After the police left and on the early morning of February 5,
2014 she barricade her bedroom door with a chair. (RR Vol. 4 p. 130).
Ulloa further stated that Appellant broke through her barricade and hit her
with his fists. (RR Vol. 4 p. 130).
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SUMMARY OF THE ARGUMENT
Issue One: The evidence is legally insufficient to prove beyond
reasonable doubt, that Appellant committed Assault .
The evidence presented at trial could not have led a rational jury to
find that Appellant committed assault in the course of an unlawful entry.
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
An appellant may raise legal sufficiency for the first time on appeal in
a criminal case. Washington v. State 127 S.W. 3d 197 (Tex. App. Houston
[1st Dist.] 2003, pet. dism’d). 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, when reviewing legal sufficiency of the
evidence,. 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 Burglary of a Habitation. (CR Vol.
1 p. 10). Under the Texas Penal Code, " [a] person commits an offense [of
burglary] if without the effective consent of the owner, enters a building or a
habitation commits or attempts to commit an assault" Tex. Penal Code
Ann. § 30.01(a)(3) (Casemaker 2014).
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Burglary becomes a felony in the second degree if at trial it is shown
that the offense is committed in a habitation. Tex. Penal Code Ann.
§30.01(c)(2) (Casemaker 2014).
By statute and by its indictment the State must also prove Appellant
committed Assault. 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).
‘Bodily injury’ means physical pain, illness, or any impairment of
physical condition.” Id. at § 1.07(a)(8).
The state must prove that Defendant acted with a conscious objective
or desire to cause the result, or that he was aware that his conduct was
reasonably certain to cause the result. Tex. Penal Code Ann. § 6.03(a)&(b)
(Casemaker 2014).
Here, Ulloa did testify that Appellant broke through the door of her
bedroom. But there is no evidence that this entry caused bodily injury. It is
true that the State introduced photographic evidence of the state of Ulloa
after the break in, but no affirmative link that the depiction or bodily injury
was the result of the February 5, 2013 break in and not the prior alleged
assaults. Ulloa does not affirmatively testify that during this criminal
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episode she experienced physical pain, illness, or any impairment of
physical condition as a result of the Appellant’s entry into her room and
striking her on February 5, 2014.
A person is criminally responsible if the result would not have
occurred but for his conduct, operating either alone concurrently with
another cause, unless the concurrent cause was clearly sufficient to
produce the result and the conduct of the actor clearly insufficient. Tex.
Penal Code Ann. § 6.04(a) (Casemaker 2014).
In this case the State specifically limited its indictment to include only
the language that Appellant committed assault with no mention of attempt.
The hypothetically correct jury charge cannot completely rewrite the
indictment, but such a charge need not “track exactly all of the allegations
in the indictment.” Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App.
2001). The “‘law’ as ‘authorized by the indictment’ must be the statutory
elements” of the offense charged “as modified by the charging instrument.”
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000), overruled in
part on other grounds by Gollihar, 46 S.W.3d 243. Thus, if the essential
elements of the offense are modified by the indictment, the modification
must be included. Gollihar, 46 S.W.3d at 254. However, the hypothetically
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correct charge “need not incorporate allegations that give rise to immaterial
variances.” Id. at 256.
Here, any variance is in the allegations made between the indictment
and the charge are material. The State alleged that the offensive conduct
of committing assault in the course of an unlawful entry. At trial the state
did not prove beyond a reasonable doubt that Ulloa suffered bodily injury.
The only evidence relating to her injuries were linked to the prior assaults
on February 4, 2013.
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).
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"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).
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
theorizing or guessing about the possible meaning of the facts and
evidence presented Id. at 16.
Other witnesses, witnesses do not add evidence that caused bodily
injury by the February 5, 2013 entry to Ullna’s room. It would only be
theorizing or guessing about the possible meaning of the facts and
evidence presented to conclude that Appellant caused the injury in this
separate offense.
14
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 is
guilty of this specific offense. 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.
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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 1,378 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
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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