Jim Jack Thompson, III v. State

ACCEPTED
03-14-00371-CR
4908209
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/15/2015 11:41:03 PM
JEFFREY D. KYLE
CLERK

IN THE COURT OF APPEALS
THIRD DISTRICT OF TEXAS FILED IN
AUSTIN, TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
4/15/2015 11:41:03 PM
JEFFREY D. KYLE
Clerk
______________________________

NO. 03-14-00371-CR
______________________________

JIM JACK THOMPSON, Appellant

v.

THE STATE OF TEXAS, Appellee

______________________________

ON APPEAL FROM THE 26TH JUDICIAL DISTRICT COURT
OF WILLIAMSON COUNTY, TEXAS
CAUSE NUMBER 13-0520-K26
______________________________

BRIEF FOR APPELLANT
______________________________

ORAL ARGUMENT IS REQUESTED

RAY BASS, ATTORNEY
SBN 01884000

120 W. 8th Street
Georgetown, Texas 78626
Tel: 512-863-8788
Fax: 512-869-5090
Email:ray@raybass.com

ATTORNEY FOR APPELLANT
 IDENTITY OF PARTIES AND COUNSEL

PARTIES TO THE TRIAL COURT’S JUDGMENT:
JIM JACK THOMPSON, III, Defendant
THE STATE OF TEXAS

TRIAL COUNSEL:
MS. LAUREN McLEOD SBN 24029584
MS. LYTZA ROJAS SBN 24046750
ASSISTANT DISTRICT ATTORNEYS
405 MARTIN LUTHER KING STREET
GEORGETOWN, TEXAS 78626
TEL. 512-943-1234
FAX: 512-943-1255
ATTORNEYS FOR THE STATE OF TEXAS

MR. WILLIAM HINES, III SBN 0969930
MR. R MARC RANC SBN 01786187
HINES, RANC,, & HOLUB, LLP
1112 ROCK STREET
GEORGETOWN, TEXAS 78626
TEL. 512-930-7500
FAX: 512-930-7537
ATTORNEYS FOR DEFENDANT

APPELLATE COUNSEL:

MR. RAY BASS, Attorney
SBN 01884000
120 W. 8TH STREET
GEORGETOWN, TEXAS 78626
TEL. 512-863-8788
FAX: 512-869-5090
ATTORNEY FOR DEFENDANT

MR. JOHN C. PREZAS, ASSISTANT DA
SBN 24041722
405 MARTIN LUTHER KING STREET
GEORGETOWN, TEXAS 78626
TEL. 512-943-1248
FAX: 512-943-1255
ATTORNEY FOR THE STATE OF TEXAS
 TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES i

STATEMENT OF THE CASE 1

STATEMENT OF FACTS 1

POINT OF ERROR 13

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT
APPELLANT’S CONVICTION FOR BURGLARY OF A
HABITATION (ROBBERY) AS ALLEGED IN PARAGRAPH
TWO OF THE INDICTMENT.

CONCLUSION AND PRAYER 23

CERTIFICATE OF COMPLIANCE 24

CERTIFICATE OF SERVICE 25
 INDEX OF AUTHORITIES

PAGE

Case Law

Byars v. State, # 14-07-00824 23
(Tex. App. – Houston [14th Dist.] 2008)
(not designated for publication)

Chadwick v. State, 277 S.W.3d 99 13
(Tex. App. - Austin 2009)

Cooper v. State, 373 S.W.3d 821 19
(Tex. App.-Austin 2012)

Davis v. State, 757 S.W.2d 386 22
(Tex. App. – Dallas 1988)

DeVaughn v. State, 749 S.W.2d 62 14
(Tex. Crim. App. 1988)

Garfias v. State, 424 S.W.3d 54 19
(Tex. Crim. App. 2014)

Gumpert v. State, 49 S.W. 3d 450 23
(Tex. App. –Texarkana 2001)

Hooper v. State, 214 S.W.3d 9 13
(Tex. Crim. App. 2007)

In Re The Matter Of E.U.M. 108 S.W..3d 368 22
(Tex. App. – Beaumont 2003)

Jackson v. Virginia, 443 U.S. 307(1979) 13

Martinez v. State, 269 S.W.3d 777 14
(Tex. App.-Austin 2008)

Mendez v. State, 575 S.W.2d 550 21
(Tex. Crim. App. 1979)

McCrary v. State, 327 S.W.3d 165 19
(Tex.App.-Texarkana 2010).

Williams v. State, 235 S.W.. 3d 742 21
(Tex. Crim. App. 2007)
Yates v. State, 624 S.W.2d 816 22
(Tex. Ap. – Houston [14th Dist.] 1981, no pet)

Statutes

Tex. Penal Code Ann. § 1.07(8) 19

Tex. Penal Code Ann. § 6.03(c) 21

Tex. Penal Code Ann. § 6.03(d) 21

Tex. Penal Code Ann. § 29.01(1) 17

Tex. Penal Code Ann. § 29.02(a)(1) 14

Tex. Penal Code Ann. § 30.02(a)(3) 14

Tex. Penal Code Ann. § 31.01(2)(A) 18

Tex. Penal Code Ann. § 31.01(4)(B) 18

Tex. Penal Code Ann. § 31.03(a) 17

Tex. Penal Code Ann. § 31.03(b) 18
 STATEMENT OF THE CASE

Appellant was convicted by a jury of burglary
of a habitation, a felony of the first degree. The
jury subsequently found that appellant had
previously been convicted of the felony offense of
burglary of a habitation and assessed his
punishment at 60 years confinement. By this appeal
appellant presents one point of error contending
that the evidence is insufficient to support
appellant’s conviction for burglary of a habitation
(Robbery) as alleged in paragraph two of the
indictment.

STATEMENT OF FACTS

The Indictment

The one count indictment alleged, in paragraph
II, that on or about March 15, 2013, the defendant,
“without the effective consent of Shannon Francis,
the owner, intentionally or knowingly entered a
habitation and committed or attempted to commit the
felony offense of robbery1”.

1
Paragraph I of the indictment alleged that appellant, “without the
effective consent of Shannon Francis, the owner, entered a habitation
with intent to commit the offense of robbery”. After both sides rested
the state waived paragraph I (RR, Vol. 11, p. 119).

1
The State’s Case

On March 15, 2013, Melinda Cortez, assistant
manager at the Payless Shoe Store on Palm Valley
street in Round Rock, noticed appellant walk into
the store (RR. Vol. 9, p. 38). He was wearing a
black T-Shirt with the word “Staff” written on the
back (RR. Vol. 9, p. 53). Cortez was waiting on a
customer at the cash register when, shortly after
appellant entered the store, she heard the uniquely
distinct shutting sound of the door that opens to
the office store room and employees area at the
back of the store (RR. Vol. 9, p. 54). She excused
herself and walked to the middle aisle of the store
from which she could see the door leading to the
office area (RR. Vol. 9, p. 55). She saw
appellant walking up the aisle and asked if he had
just left the back room (RR. Vol. 9, p. 55). He
first said “no” but ultimately admitted he had
walked back into that area to look for a bathroom
(RR. Vol. 9, p. 56). Cortez walked to the back of
the store, opened the door, and saw her purse and
the contents thereof scattered on the floor (RR.
Vol. 9, p. 56). She ran back to the front cash
register and asked the customer waiting there if
she knew where appellant had gone (RR. Vol. 9, p.

2
57). The customer said that appellant had just
jumped into a truck parked right in front of the
store (RR. Vol. 9, p. 56). Cortez ran outside where
she saw appellant in the passenger seat of the
truck and an elderly woman at the wheel starting to
back out of the handicap parking slot (RR. Vol. 9,
p. 58). Cortez hollered “don’t give him a ride, he
just robbed us” (RR. Vol. 9, p. 58). Appellant then
jumped out of the cab of the truck, jumped into the
truck bed and sat down with his back to the cab
(RR. Vol. 9, p. 59). He then jumped out of the bed
of the truck and started running down the sidewalk
past Cortez (RR. Vol. 9, p. 60). As appellant ran
by, Cortez told him that she is “on the phone
giving the police a description” (RR. Vol. 9, p.
61). Cortez watched as appellant ran into a nearby
subdivision (RR. Vol. 9, p. 62). She later
determined that her wallet had been taken from her
purse (RR. Vol. 9, p. 56).

On March 15, 2013, Shannon Francis left her job
as an Assistant Williamson County Attorney to have
lunch at her home at 1475 Rainbow Parke, in Round
Rock (RR. Vol. 9, pp, 106, 108). Holding her Louie
Vitton purse on the “crook” of her left arm she
entered her home through the garage and immediately
noticed appellant, who was wearing shorts but no

3
shirt, sleeping face up on the floor of her bedroom
(RR. Vol. 9, pp. 111, 117, 118, 147). When Francis
first walked into the bedroom appellant did not
respond to her (RR. Vol. 9, p. 118), but when she
said “Hello” and “Who are you” appellant turned his
face towards her and started mumbling the names of
some people who said he could “crash” in the house
during South By Southwest (RR. Vol. 9, p. 119).
Francis noticed that one of her other purses was
lying on the bed and that the contents of that
purse had been “dumped out” (RR. Vol. 9, p. 119).
At this point she realized that she was confined
inside her home with a “criminal” (RR. Vol. 9, p.
120). She started stepping backwards toward the
garage, hit the button to open the garage door, and
began reaching for her cell phone (RR. Vol. 9, p.
120). Appellant, who was now following Francis,
asked if he could borrow her phone (RR. Vol. 9,
p.151). She said “no” and called 911 (RR. Vol. 9,
p. 122), telling the man who answered that she
needed the police (RR. Vol. 9, p. 123). Appellant
entered the garage and asked Francis for her keys.
When she refused appellant grabbed her left arm2
and attempted to take her purse (RR. Vol. 9, p.
123). In a brief struggle, Francis and her purse
quickly ended up on the garage floor (RR. Vol. 9,
2
Francis testified that where appellant grabbed her left arm she “felt
it for several days”. (RR, Vol. 9, p. 125).

4
p. 123), causing “some very minor scraping” to her
knee “that became bruises later” (RR. Vol. 9, p.
140). When asked how she ended up on the floor,
Francis responded “just through the force of the
struggle” (RR. Vol. 9, p. 123). Appellant got the
purse and dumped the contents onto the floor of the
garage. He found the car keys, ran into the
driveway, and entered Francis’ vehicle (RR. Vol. 9,
p. 126), but ran back into the garage screaming at
Francis to start the car and to give him the keys
(RR. Vol. 9, p. 127). Francis hollered “You have
the keys”, but appellant got down on the ground and
started going through her purse again (RR. Vol. 9,
p. 128). He found her house key and ran back to the
car, apparently trying to start it but he could not
(RR. Vol. 9, p. 128). He ran back to the garage
again screaming at Francis to start the car or give
him the keys (RR. Vol. 9, p. 129). Francis,
frightened by appellant’s escalating behavior, told
him to push the button on the key housing to pop
the key out (RR. Vol. 9, p. 129). Appellant ran
back to the car and Francis ran into the drive way
screaming “help me” (RR. Vol. 9, p. 130).

Just as Francis ran into the driveway, Round
Rock Police Officer Jerry Hallford was slowly
driving his patrol car towards Francis’ house (RR.

5
Vol. 9, p. 166). He was patrolling the area in
search of the suspect in the recent theft at the
nearby Payless Shoe Store (RR. Vol. 9, p. 163). He
saw Francis in her driveway using both hands
frantically trying to waive him down (RR. Vol. 9,
p. 170). He stopped in front of the house, stepped
out of his vehicle, and started walking toward the
driveway (RR. Vol. 9, p. 171). He asked Francis:
“does he belong here”, and when she said “no”,
appellant started walking away. (RR. Vol. 9, p.
173-174). Hallford commanded appellant to stop but
he started running down the street. As the officer
gave chase on foot, appellant crossed the street
and ran between two houses into a fenced back yard
(RR. Vol. 9, pp. 174-176). When Hallford approached
appellant turned toward him and was taser dropped
to the ground (RR. Vol. 9, pp. 177-179). Appellant
attempted to pull the taser prongs out of his body
and was tasered a second time (RR. Vol. 9, p. 180),
but he removed the taser prongs and took off
running again, charging through a fence gate (RR.
Vol. 9, p. 181) and breaking through fences in two
additional backyards (RR. Vol. 9, p. 182). Unable
to knock down the fence in a third backyard
appellant again turned toward officer Hallford who
unsuccessfully attempted to tase him a third
time(RR. Vol. 9, p. 182). Appellant jumped the

6
fence and started running toward Red Bud street.
Hallford jumped the fence and continued to pursue
appellant into a Wal Mart parking lot (RR. Vol. 9,
p. 183). Appellant jumped into the passenger side
of a van in the parking lot, and when the driver
stepped out appellant drove off in the van at a
high rate of speed almost hitting a patrol car that
had just entered the parking lot (RR. Vol. 9, p.
188-189). He jumped a median into a grassy area,
hit a tree, jumped a curb and headed south on Red
Bud street (RR. Vol. 9, p. 190-193). Two police
vehicles gave chase (RR. Vol. 9, pp. 188 – 200).

Round Rock police officer Logan Harper-Hill had
been dispatched to the theft at the Payless Shoe
Store and was patrolling a nearby neighborhood
looking for the suspect when he heard officer
Hallford’s call for help in apprehending someone in
the Wal Mart parking lot (RR. Vol. 9, p. 224). He
activated his overhead lights and headed to Wal
Mart (RR. Vol. 9, p. 225). As he entered the
parking lot he saw a maroon van that was headed
towards him, but the van hit a tree then headed
south on Red Bud Street (RR. Vol. 9, p. 226). The
officer followed as appellant ran through a red
light, made a sharp left turn onto Woodlawn Street,
drove across several yards, and drove into a ditch

7
(RR. Vol. 9, p. 227). Appellant jumped out of the
van and started running until he jumped a chain
link fence and encountered two big dogs in the yard
(RR. Vol. 9, p. 227-228), at which point he was
apprehended by officer Harper-Hill and handcuffed
by officer Brandes (RR. Vol. 9, p. 229). After
being apprehended appellant said he “made a
mistake” and knew he was “going to pay for it” (RR.
Vol. 9, p. 230).

On March 22, 2013, Round Rock Detective Bernie
Villegas obtained from Shannon Francis a black T-
Shirt she had found on the floor of her closet.
Printed on the front of the T-Shirt were the words
“Hard Rock” and on the back the word “Staff” (RR.
Vol. 10, p. 56).

A latent fingerprint lifted by officer Kerie
Cress from a locker in the Payless Shoe Store
employee room on March 15, 2013 (RR. Vol. 10, p.
33), was identified by DPS latent print examiner,
Meghan Blackburn, as being matched to a known
fingerprint of appellant (RR. Vol. 10, p. 47).

The Defense

Jeremy Charske is the project manager and

8
estimator for All American Electrical, a company
owned by appellant’s father (RR. Vol.10, p.67). The
business is located at the father’s home on
Evergreen Street, just off of Red Bud in Round Rock
(RR. Vol.10, pp. 68 & 78). At approximately 9:30 AM
on March 15, 2013, Charske saw appellant, who at
the time was living in the house on Evergreen (RR.
Vol.10, p.79), on the back porch of the house (RR.
Vol.10, p.70). Appellant was rapidly pacing back
and forth like a “caged animal”, rubbing his hands
then rubbing his head (RR. Vol.10, p.70). Sensing
that something was obviously wrong, Charske opened
the back door and asked appellant if everything was
all right (RR. Vol.10, p.71). Appellant did not
answer but simply looked at Charske “with a blank
stare” (RR. Vol.10, p.71). Charske called
appellant’s father and told him that something was
“seriously wrong” with appellant (RR. Vol.10,
p.71). By the time appellant’s father arrived
appellant was gone and no one knew where he had
gone (RR. Vol.10, p.72).

Sage Thompson is appellant’s sister. On March
15, 2013, she was also living at her father’s house
on Evergreen (RR. Vol.10, p.78). That morning she
was supposed to take appellant to Bluebonnet, a
mental health facility in Round Rock, to get his

9
anti-depressant medication (RR. Vol.10, p.79). When
asked why he takes the anti-depressants Sage said
that when he is not taking the medication “he cries
about everything” (RR. Vol.10, p.80). At some point
that morning appellant walked into the bathroom
while Sage was brushing her teeth. She asked if he
was ready to go and he said yes and walked out of
the bathroom (RR. Vol.10, p.80). Sage heard the
front door open and when she came out of the
bathroom appellant was gone and she never saw him
again that day (RR. Vol.10, p.81).

Robert Cantu is a medical doctor specializing
in psychiatry. He is board certified in both
general and forensic psychiatry (RR. Vol.11, p.
45). He first evaluated appellant, at the request
of appellant’s family, in October 2012 (RR. Vol.11,
p. 46). Dr. Cantu determined that appellant had
been on Effexor, an anti-depressant medication, for
approximately six years but had run out of the
medication and was doing badly (RR. Vol.11, p. 46).
After evaluating appellant Dr. Cantu continued him
on the medication (RR. Vol.11, p. 46). About a
month later Cantu received a telephone call
informing him that because of the expense appellant
had decided to continue his treatment with MH-MR in
Round Rock (RR. Vol.11, p. 46).

10
 In February 2014, appellant’s family again
contacted Dr. Cantu to do a psychiatric evaluation
and assess his mental condition at the time of the
alleged offense on March 15, 2013 (RR. Vol.11, pp.
68 & 70). After reviewing appellant’s medical and
psychiatric records spanning a number of years,
interviewing appellant and members of his family,
and after reviewing the police reports of the
March 15, 2013 incident, Dr. Cantu formed the
opinion that appellant was suffering from a
psychosis that was triggered by withdrawal from
Effexor (RR. Vol.11, pp. 50-52). Specifically, the
withdrawal triggered “a kind of hypomanic or
agitated state with a lot of disorganization” and
“persecutory delusions that someone was out to get
him; that people or an entity, evil, were trying to
kill him” (RR. Vol.11, p. 54). Dr. Cantu explained
that appellant’s odd behaviors on March 15, 2013,
as described by witnesses, i.e: laying on the floor
taking off his shirt, being unable to figure out
how to start an automobile, jumping into the cab of
a truck and then jumping into the bed of the truck
and laying down as if he was then invisible, were
consistent with the delusions and disorganization
that accompany Effexor withdrawal (RR. Vol.11, p.
59, 62). At the conclusion of the direct

11
examination of Dr. Cantu, the following exchange
occurred (RR. Vol.11, p. 62-63):

Q. (By defense counsel): And based on
your review of all the materials, did it
seem like it was his intent or purpose to
get away but not to cause anyone
particular harm?

A: I think getting away was it. I
mean, it was all about getting away.

Q: Okay. You talk at the end of your
report, about that the cognitive initial
capacity as a result of mental illness was
impaired. Can you explain a little bit
more just about exactly what that meant?

A; It’s a fancy way of saying he
wasn’t thinking right and, because he
wasn’t thinking right, he likely wasn’t
able to make decisions or conform behavior
in a way that we would normally think,
that anybody would normally think that he
would normally think because of – because
of that sort of – that thought
disorganization.

12
 Dr. Cantu also testified that in his opinion
appellant did not intentionally, knowingly, or
recklessly cause bodily injury to Shannon Francis
(RR. Vol.11, pp. 98 & 102).

POINT OF ERROR

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT
APPELLANT’S CONVICTION FOR BURGLARY OF A HABITATION
(ROBBERY) AS ALLEGED IN PARAGRAPH TWO OF THE
INDICTMENT.

Argument & Authorities

The standard of review for determining
whether evidence presented at a criminal trial is
legally sufficient to prove the offense charged is
whether, considering all of the evidence in the
light most favorable to the finding of guilt, a
rationale fact finder could have found that every
element of the offense was proven beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S.
307(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007); Chadwick v. State, 277 S.W.3d 99
(Tex. App. - Austin 2009).

13
Elements: Burglary of a Habitation (Robbery)

The offense of Burglary of a Habitation
(Robbery) is committed when the actor intentionally
or knowingly enters a habitation without the
effective consent of the owner and commits or
attempts to commit the offense of robbery. See,
Tex. Penal Code Ann. § 30.02(a)(3); DeVaughn v.
State, 749 S.W.2d 62 (Tex.Crim.App. 1988); Martinez
v. State, 269 S.W.3d 777 (Tex.App.-Austin 2008).

A person commits robbery if, in the course of
committing theft as defined in Chapter 31 of the
penal code, and with intent to obtain or maintain
control of the property, the person intentionally,
knowingly, or recklessly causes bodily injury to
another. Tex. Penal Code Ann. § 29.02(a)(1).

Thus, to find the evidence legally sufficient
to support the appellant’s conviction for Burglary
of a Habitation (Robbery), this Court, after
considering all of the evidence in the light most
favorable to the verdict, must conclude that a
rationale jury could have found beyond a reasonable
doubt that appellant (1) intentionally or knowingly
made a non-consensual entry into the home of
Shannon Francis, and (2) thereafter while in the

14
course of committing theft (3) intentionally,
knowingly, or recklessly caused bodily injury to
Shannon Francis, (4) with intent to obtain or
maintain control of the property.

No Rationale Jury Could Have Found Beyond A
Reasonable Doubt That Appellant Intentionally Or
Knowingly Made a Non-Consensual Entry Into The Home
Of Shannon Francis.

The issue here is not whether appellant had
permission to enter Shannon Francis’ home. Clearly,
she gave no such permission, and no rational person
would believe that anyone else gave appellant
permission to enter the home. The issue is whether,
considering all the evidence in thie case,
including the uncontradicted testimony of Dr.
Robert Cantu, a rational jury could have found,
beyond a reasonable doubt, that appellant knew he
did not have permission to enter the home.

Dr. Robert Cantu, a board certified
psychiatrist, had treated appellant in the past and
was intimately familiar with appellant’s medical
and psychiatric history. He testified that
appellant had been on Effexor, an anti-depressant
medication, for at least 6 years. After reviewing
the police reports, appellant’s extensive medical

15
and psychiatric history, and after interviewing
appellant and members of his family, Dr Cantu
opined that on March 15, 2013, appellant was
suffering from a psychosis triggered by withdrawal
from Effexor. According to Dr. Cantu, appellant’s
odd behaviors, as characterized by witnesses to the
incidents of March 15, and as outline in the
statement of facts above, were consistent with the
delusions and disorganization that accompany
Effexor withdrawal. The state presented no expert
testimony to contradict Dr. Cantu’s
characterization of appellant’s mental condition on
March 15, 2013.

Appellant told Francis that someone had
allowed him to “crash” in the house during South By
Southwest. Although no rational person would
believe that anyone gave appellant permission to
enter in the house, it is not unreasonable to
believe that appellant who, according to the
uncontradicted testimony of Dr. Cantu, was
suffering a psychosis characterized by delusions
and disorganization, believed he had permission to
enter the home. No one testified about the
circumstances surrounding appellant’s entry into
Ms. Francis’ home. And, it is important that there
was no testimony or evidence of a forced entry by

16
appellant, which would tend to suggest that he
would have known he did not have permission to
enter the house. Appellant was laying on the floor
of Ms. Francis’ bedroom, asleep, when she first saw
him, and, he did not act as she would have expected
a guilty person to act (RR, Vol. 9, p. 149).

In light of all the facts and circumstances
shown by the evidence in this case, no rationale
jury could have found beyond a reasonable doubt
that appellant knew he did not have permission to
enter the habitation owned by Shannon Francis.

No Rational Jury Could Have Found Beyond A
Reasonable Doubt That Shannon Francis Was Injured
While Appellant Was In The Course Of Committing
Theft.

"In the course of committing theft" means
conduct that occurs in an attempt to commit theft,
or during the commission of a theft, or in
immediate flight after the commission of or attempt
to commit theft. Tex. Penal Code Ann. § 29.01(1).

The offense of theft is committed when a
person unlawfully appropriates property with intent
to deprive the owner of the property. Tex. Penal
Code Ann. § 31.03(a). “Appropriate" means to

17
acquire or otherwise exercise control over property
other than real property. Tex. Penal Code Ann. §
31.01(4)(B). Appropriation of property is unlawful
if it is without the owner's effective consent.
Tex. Penal Code Ann. § 31.03(b). "Deprive" means to
withhold property from the owner permanently or for
so extended a period of time that a major portion
of the value or enjoyment of the property is lost
to the owner. Tex. Penal Code Ann. § 31.01(2)(A).

Bodily injury to Shannon Francis occurred
while appellant was apparently attempting to
exercise non consensual control over her purse. But
no theft occurred unless it was appellant’s intent
to withhold the purse from Francis permanently or
for long enough to significantly destroy the value
or Francis’ enjoyment of the property. The evidence
simply will not justify a finding of such an intent
beyond a reasonable doubt. Indeed, appellant left
the purse on the garage floor next to Francis.

No Rational Jury Could Have Found Beyond A
Reasonable Doubt That Appellant Intentionally,
Knowingly, or Recklessly Caused Bodily Injury to
Shannon Francis

"Bodily injury" means physical pain, illness,
or any impairment of physical condition. Tex. Penal

18
Code Ann. § 1.07(8). Bodily injury robbery is a
result oriented offense. Garfias v. State, 424
S.W.3d 54 (Tex. Crim. App. 2014); Cooper v. State,
373 S.W.3d 821 (Tex. App.-Austin 2012); McCrary v.
State, 327 S.W.3d 165 (Tex.App.-Texarkana 2010).
The culpable mental state focuses on the result of,
and not the nature of the defendant’s conduct.
Thus, to find that appellant intentionally,
knowingly, or recklessly caused bodily injury to
Shannon Francis, the jury had to find beyond a
reasonable doubt that it was his conscious
objective or desire to cause physical pain to
Francis, or that he knew his conduct was reasonably
certain to cause physical pain to Shannon Francis,
or that he was aware of but consciously disregarded
a substantial and unjustifiable risk that his
conduct would cause physical pain to Shannon
Francis.

Bodily injury to Shannon Francis occurred
while appellant was attempting to exercise control
over her purse. After appellant grabbed her left
arm and attempted to grab the purse, a brief
struggle ensued and Francis ended up on the garage
floor with “some very minor scraping” to her knee.
She testified that she also had some pain to her
left arm. There is no evidence that it was

19
appellant’s conscious objective or desire to cause
physical pain to Francis, or that he knew his
spontaneous action was reasonably certain to cause
her physical pain. Appellant made no verbal threats
and no admissions of having such a culpable mental
state. Merely grabbing Francis’ arm and reaching
for her purse is not conduct that is likely to
cause bodily injury. Although a struggle ensued,
Francis offered no testimony or demonstration of
the details of the struggle, which almost instantly
resulted in Francis and her purse being on the
garage floor.

The issue is whether or not the evidence
supports a finding that appellant recklessly caused
physical pain to Francis. In this regard it is
important to understand the difference between
criminal recklessness and criminal negligence.

A person acts recklessly, or is reckless with
respect to the result of his conduct when he is
aware of but consciously disregards a substantial
and unjustifiable risk that the result will occur.
The risk must be of such a nature and degree that
its disregard constitutes a gross deviation from
the standard of care that an ordinary person would
exercise under all the circumstances as viewed from

20
the actor's standpoint. Tex. Penal Code Ann. §
6.03(c). A person acts with criminal negligence, or
is criminally negligent, with respect to the result
of his conduct when he ought to be aware of a
substantial and unjustifiable risk that the result
will occur. The risk must be of such a nature and
degree that the failure to perceive it constitutes
a gross deviation from the standard of care that an
ordinary person would exercise under all the
circumstances as viewed from the actor's standpoint
Tex. Penal Code Ann. § 6.03(d).

Unlike criminal negligence, criminal
recklessness requires the defendant to actually
foresee the risk involved and to consciously decide
to ignore it. Mere lack of foresight,
irresponsibility, thoughtlessness, stupidity, or
ordinary carelessness, however serious the
consequences may happen to be, does not rise to the
level of criminal recklessness. Williams v. State,
235 S.W.. 3d 742 (Tex. Crim. App. 2007).

Cases involving the discharge of a firearm
provide, perhaps, the best example of what is
required to prove a criminally reckless state of
mind. See, Mendez v. State, 575 S.W.2d 550 (Tex.
Crim. App. 1979)(shooting randomly at houses in one

21
of which an occupant was killed); Yates v. State,
624 S.W.2d 816 (Tex. Ap. – Houston [14th Dist.]
1981, no pet) (pointing a loaded gun at another who
was killed when the gun accidentally discharged);
In Re The Matter Of E.U.M. 108 S.W..3d 368 (Tex.
App. – Beaumont 2003)(E.U.M. a juvenile, for
amusement only and without intent to kill, pointed
a sawed off shotgun at her friend and, forgetting
that it was loaded, pulled the trigger, shooting
and killing her friend); Davis v. State, 757 S.W.2d
386 (Tex. App. – Dallas 1988)(defendant picked up a
pistol that he kept in his truck, and while he and
his girlfriend were sitting in the truck he started
playing with the pistol by spinning it on his index
finger. The pistol discharged and killed his
girlfriend). In these kinds of cases “It defies
reason to question that any person would not be
cognizant of a substantial and unjustifiable risk
of harm in such a situation.” In Re The Matter Of
E.U.M., supra at 371.

Because Shannon Francis received minor
injuries as a result of a very brief “struggle”
precipitated by appellant’s attempt to take her
purse, It might be argued that this case is
analogous to cases where injuries to a police
officer resulted from a struggle with a person

22
resisting arrest. See, Byars v. State, # 14-07-
00824 (Tex. App. – Houston [14th Dist.] 2008)(not
designated for publication); Gumpert v. State, 49
S.W. 3d 450 (Tex. App. –Texarkana 2001). But, in
those cases the defendants’ conduct amounted to
more than precipitating the struggle. During the
course of the struggle the defendant, while
resisting police efforts to detain or arrest him,
started intentionally “flailing his arms” around,
or kicking, in a manner that unquestionably created
a substantial and unjustifiable risk of causing
bodily injury, and in circumstances that any
person would be cognizant of such a risk.

Although the evidence is sufficient to prove
that appellant negligently caused bodily injury to
Shannon Francis, it is legally insufficient to
prove that he intentionally, knowingly, or
recklessly caused bodily injury to Shannon Francis.

CONCLUSION AND PRAYER

Because the evidence is legally insufficient to
prove that appellant intentionally or knowingly
entered a habitation owned by Shannon Francis and
committed or attempted to commit the felony offense

23
of robbery, appellant prays that his conviction for
that offense be set aside and the case remanded to
the trial court with instructions to enter a
judgment of acquittal for that offense.

RESPECTFULLY SUBMITTED

/S/ Ray Bass
________________________
RAY BASS, ATTORNEY
SBN 01884000

120 WEST 8TH STREET
GEORGETOWN, TEXAS 78626
TEL: 512-863-8788
FAX: 512-869-5090

Email: ray@raybass.com

CERTIFICATE OF COMPLIANCE

Pursuant to RULE 9.4(i)(3), TEXAS RULES OF APPELLATE
PROCEDURE, the undersigned attorney of record for appellant
certifies that Appellant’s Brief, with the exception of
those parts excluded by RULE 9.4(i)(1), contains LESS THAN
15,000 words.

/S/ Ray Bass
_____________________
RAY BASS, ATTORNEY

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 CERTIFICATE OF SERVICE

I hereby certify that a copy of Appellant’s Brief was
delivered to JOHN C. PREZAS, ASSISTANT DISTRICT ATTORNEY
for Williamson County, Texas, 404 S. Martin Luther King
Street, Georgetown, Texas, 78626, by email to
jprezas@wilco.org on April 15, 2015, and by also depositing
a copy of same in the United States Mail.

/S/ Ray Bass
_____________________
RAY BASS, ATTORNEY

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