ACCEPTED
06-14-00147-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
3/19/2015 2:18:58 PM
DEBBIE AUTREY
CLERK
ORAL ARGUMENT WAIVED
FILED IN
6th COURT OF APPEALS
CAUSE NO. 06-14-00147-CR TEXARKANA, TEXAS
3/19/2015 2:18:58 PM
IN THE DEBBIE AUTREY
Clerk
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________
AZIM SHAKUR RAHIM, Appellant
V.
THE STATE OF TEXAS, Appellee
____________________________________________________________
ON APPEAL FROM THE COUNTY COURT AT LAW
LAMAR COUNTY, TEXAS
TRIAL COURT NO. 61685; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________
APPELLEE’S (STATE’S) BRIEF
____________________________________________________________
Gary D. Young, County and District Attorney
Lamar County and District Attorney’s Office
Lamar County Courthouse
119 North Main
Paris, Texas 75460
(903) 737-2470
(903) 737-2455 (fax)
ATTORNEYS FOR THE STATE OF TEXAS
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and
counsel is not required to supplement or correct the appellant’s list.
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TABLE OF CONTENTS
PAGE NO.:
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . vii
STATEMENT REGARDING ORAL ARGUMENT. . . . . . viii
ISSUE PRESENTED IN REPLY. . . . . . . . . . . . . . . . . . . . . ix
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . 15
ARGUMENT AND AUTHORITIES
ISSUE PRESENTED IN REPLY NO. 1: JURY
CHARGE ERROR DID NOT EXIST; OR IN THE
ALTERNATIVE, THE APPELLANT, RAHIM, COULD
NOT PROVE EGREGIOUS HARM. . . . . . . . . . . 16
ISSUE PRESENTED IN REPLY NO. 2: THIS
COURT SHOULD ORDER THE SUPPLEMENTATION
OF THE CLERK’S RECORD TO INCLUDE A
CERTIFIED BILL OF COSTS. . . . . . . . . . . . . . . . 21
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
-ii-
PAGE NO.:
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 26
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . 26
-iii-
INDEX OF AUTHORITIES
CASES: PAGE:
Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim.
App. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Armstrong v. State, 340 S.W.3d 759, 766-67 (Tex. Crim.
App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22
Armstrong v. State, 850 S.W.2d 230, 236 (Tex. App.--
Texarkana 1993), aff’d, 897 S.W.2d 361 (Tex.
Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18,19
Ballinger v. State, 405 S.W.3d 346,348, 349 (Tex. App.--Tyler
2013, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,24
Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim.
App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim.
App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Graves v. State, 176 S.W.3d 422, 433 (Tex. App.--Houston
[1st Dist.] 2004, pet. dism’d) . . . . . . . . . . . . . . . . . . . . 20
Halliburton v. State, 528 S.W.2d 216, 219 (Tex.
Crim. App. 1975) (op. on reh’g) . . . . . . . . . . . . . . . . 17
Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim.
App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Johnson v. State, 423 S.W.3d 385, 392 (Tex. Crim. App.
2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-iv-
Johnson v. State, 963 S.W.2d 140, 144 (Tex. App.--
Texarkana 1998, pet. ref’d) . . . . . . . . . . . . . . . . . . . . 17-18,19
Jones v. State, 241 S.W.3d 666, 669 (Tex. App.--Texarkana
2007, no pet.) (Lamar County) . . . . . . . . . . . . . . . . . . 17,19
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim.
App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Randyael Dontrell Tyson v. The State of Texas, No.
06-14-00114-CR, 2015 Tex. App. LEXIS 2506,
at * 13-15 (Tex. App.--Texarkana March 18,
2015, n.p.h.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,24
Robinson v. State, 844 S.W.2d 925, 929 (Tex. App.--
Houston [1st Dist.] 1992, no pet.) . . . . . . . . . . . . . . . . 17,19
Shipp v. State, 331 S.W.3d 433, 443 (Tex. Crim.
App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,19
Tate v. State, 981 S.W.2d 189, 193 n. 5 (Tex. Crim.
App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Taylor v. State, 332 S.W.3d 483, 489, 490 (Tex.
Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,20,21
Whatley v. State, No. 06-12-00117-CR, 2014 WL 7399130,
at * 1, 2014 Tex. App. LEXIS 13839, at * 2, *3 (Tex.
App.--Texarkana December 30, 2014, no pet.) (mem.
op., not designated for publication) . . . . . . . . . . . . . . 22,24
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STATUTES: PAGE:
TEX. CODE CRIM. PROC. ANN. ART. 103.006
(WEST 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
TEX. CODE CRIM. PROC. ANN. ART. 103.001
(West 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
TEX R. APP. P. 34.5(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 23,24
TEX. R. APP. P. 38.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . i
TEX. R. EVID. 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
-vi-
STATEMENT OF THE CASE
This is a criminal appeal from the trial court’s final judgment of
conviction. See CR, pgs. 62-64.
After a jury trial, a jury in Lamar County found the appellant, Rahim,
guilty of the misdemeanor offense of assault causing bodily injury (RR, Vol.
3, pg. 272; CR, pg. 57), as charged in the information. See CR, pg. 5. The
jury assessed punishment at confinement for 365 days in the Lamar County
jail and assessed a fine of none. See RR, Vol. 3, pg. 296; CR, pg. 61.
After pronouncing sentence (RR, Vol. 3, pgs. 298-299), the trial court
signed its final judgment of conviction. See CR, pgs. 62-64. Rahim timely
filed his notice of appeal. See CR, pg. 65. By this appeal, Rahim raised two
(2) issues/points of error.
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STATEMENT REGARDING ORAL ARGUMENT
The State will waive oral argument. See Tex. R. App. P. 38.2.
-viii-
ISSUES PRESENTED IN REPLY
ISSUE PRESENTED IN REPLY NO. 1: JURY CHARGE ERROR
DID NOT EXIST; OR IN THE ALTERNATIVE, THE APPELLANT,
RAHIM, COULD NOT PROVE EGREGIOUS HARM.
ISSUE PRESENTED IN REPLY NO. 2: THIS COURT SHOULD
ORDER THE SUPPLEMENTATION OF THE CLERK’S RECORD
TO INCLUDE A CERTIFIED BILL OF COSTS.
-ix-
CAUSE NO. 06-14-00147-CR
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________
AZIM SHAKUR RAHIM, Appellant
V.
THE STATE OF TEXAS, Appellee
____________________________________________________________
ON APPEAL FROM THE COUNTY COURT AT LAW
LAMAR COUNTY, TEXAS
TRIAL COURT NO. 61685; HONORABLE BILL HARRIS, JUDGE
____________________________________________________________
APPELLEE’S (STATE’S) BRIEF
____________________________________________________________
TO THE HONORABLE SIXTH COURT OF APPEALS AT
TEXARKANA:
COMES NOW, the State of Texas, by and through the elected County
and District Attorney of Lamar County, Gary D. Young, and the Lamar
County and District Attorney’s Office, respectfully submits its Appellee’s
(State’s) Brief under Rule 38.2 of the Texas Rules of Appellate Procedure.
Unless otherwise indicated, Azim Shakur Rahim will be referred to as
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“the appellant” or “Rahim” and the State of Texas as “the State.”
STATEMENT OF FACTS
Factual Background.
On November 20, 2013 (RR, Vol. 3, pgs. 30, 58, 157, 174, 177),
Robert Milton, a licensed peace officer for twenty-three years and six
months and a patrol officer with the City of Paris Police Department,
(Officer Milton) responded to an incident a Quick Stop or a Speedy Stop at
2205 Clarksville in Lamar County, Texas. See RR, Vol. 3, pgs. 28-30, 60,
70-74, 157. See also State’s Exhibits 9-16. It was daylight; Officer Milton
was on the day shift. See RR, Vol. 3, pg. 30.
On November 20th, Tapfuma Omega Thomas (Thomas) was the cook
(RR, Vol. 3, pg. 92) at the Speedy Stop and was cooking burgers at the time.
See RR, Vol. 3, pgs. 110-111. According to Thomas, he was taking an order
for a hamburger that day from Larry Solomon (Mr. Solomon). See RR, Vol.
3, pgs. 113, 115. Mr. Solomon, who called the cook “Tot” (RR, Vol. 3, pg.
179), was placing his order, and Rahim came around to the counter. See RR,
Vol. 3, pg. 115. Mr. Solomon heard somebody say, “hey, Brother Larry.”
See RR, Vol. 3, pg. 179. See also RR, Vol. 3, pg. 194. Mr. Soloman turned
around and it was Rahim, who said, “let me talk to you for a minute.” See
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RR, Vol. 3, pg. 179. See also RR, Vol. 4, pg. 194-197.
Rahim told Mr. Solomon, “could you please talk to me out here, we
need to have a conversation.” See RR, Vol. 3, pg. 115. Rahim was
“[t]alking calm, no raised voices, cuss word”s, nothing.” See RR, Vol. 3, pg.
115. “They went ahead and went outside.” See RR, Vol. 3, pg. 116.
About that time, Devin Washington (Washington) pulled up to the gas
station to get something to eat, when he saw Rahim and Mr. Solomon come
out of the store. See RR, Vol. 3, pgs. 136-138. Washington saw them
talking “normally.” See RR, Vol. 3, pg. 139. Bobby Woyn Harrison
(Harrison) was also going into the store. See RR, Vol. 3, pg. 170. As
Harrison entered the store, a conversation was going on. See RR, Vol. 3, pg.
170. That’s when Harrison saw them exit the store. See RR, Vol. 3, pg.
170.
Right before Washington got out, he saw Rahim throw a punch. See
RR, Vol. 3, pgs. 137-139. According to Washington, “[i]t was more like
caught him off guard, like a jab to his face.” See RR, Vol. 3, pg. 139.
According to Mr. Solomon said, “[h]e sucker punched me out of nowhere.”
See RR, Vol. 3, pg. 180; State’s Exhibit 8.
After that, Washington didn’t see more because a car had blocked his
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view. See RR, Vol. 3, pgs. 140-141, 145. Washington opened his door to
go to investigate and see what was going on. See RR, Vol. 3, pg. 141. “I
seen them both on the ground.” See RR, Vol. 3, pg. 141. Washington heard
the word, “gun” but he didn’t see it. See RR, Vol. 3, pg. 141. “They said it
fell out.” See RR, Vol. 3, pg. 141. “A good five or six people” were around.
See RR, Vol. 3, pg. 142.
It wasn’t two minutes later when another patron came in the store and
said to Thomas, “they’re fighting, they’re fighting, go help.” See RR, Vol.
3, pg. 116. Thomas came out that front door of the store. See RR, Vol. 3,
pgs. 117, 185. They were already on the ground. See RR, Vol. 3, pg. 117.
Washington saw Thomas come out, and “[h]e was trying to break up
the fight.” See RR, Vol. 3, pg. 142. See also RR, Vol. 3, pgs. 164, 171, 183.
They were on the ground for “a few good minutes.” See RR, Vol. 3, pg.
142. See also RR, Vol. 3, pg. 166.
Mr. Solomon said, “Tot, just get the gun, I ain’t going to shoot
nobody.” See RR, Vol. 3, pg. 185. That’s when Tot come over and took the
gun out of Mr. Solomon’s hand. See RR, Vol. 3, pg. 185.
Rahim had his knee in his back and was still punching him in the back
of the head. See RR, Vol. 3, pgs. 117, 121, 124. Rahim had one hand on the
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pistol and Mr. Solomon had both hands on it. See RR, Vol. 3, pgs. 117, 134,
163. They were both fighting over the gun. See RR, Vol. 3, pgs. 184-185.
After they were separated, Washington didn’t see Thomas with the
weapon, and he didn’t witness who took the weapon away. See RR, Vol. 3,
pgs. 153-154.
Thomas could see that Mr. Solomon was bleeding. See RR, Vol. 3,
pg. 118. Thomas grabbed Rahim, and was asking him to let him go. See
RR, Vol. 3, pg. 118. See also RR, Vol. 3, pg. 187. Thomas got him off of
Mr. Solomon. See RR, Vol. 3, pg. 187. Thomas made sure the police were
called. See RR, Vol. 3, pg. 122.
Both relinquished the pistol to Thomas, who passed it to another
witness, Harrison. See RR, Vol. 3, pgs. 119, 121, 128, 155, 164-165.
Harrison had the gun, when the police came. See RR, Vol. 3, pg. 164.
Arrival of Law Enforcement.
Dispatch advised there was disturbance at the Speedy Stop involving a
gun. See RR, Vol. 3, pgs. 31, 40, 58. Officer Milton answered the call,
along with Officer Bigler and Sergeant Brandenburg, who was the first
officer on the scene. See RR, Vol. 3, pg. 31.
Sergeant Thomas Brandenburg, a certified peace officer and field
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supervisor, (Sergeant Brandenburg) had primarily supervisory duties for the
past five years in the Paris Police Department. See RR, Vol. 3, pgs. 55-56.
Sergeant Brandenburg was the direct supervisor of Officer Milton. See RR,
Vol. 3, pg. 79.
Sergeant Brandenburg secured the gun from a gentleman named
Harrison. See RR, Vol. 3, pg. 59. After securing the gun, Sergeant
Brandenburg initially made contact with Rahim, who was “somewhat
aggressive” and shouting at the victim, Larry Solomon (Mr. Solomon). See
RR, Vol. 3, pg. 60. Sergeant Brandenburg tried to separate the parties that
were involved, and he took Rahim to Mr. Bigler’s patrol car. See RR, Vol.
3, pgs. 60-61, 67. Rahim was still “very agitated.” See RR, Vol. 3, pg. 68.
See also RR, Vol. 3, pg. 75.
In the patrol car, Rahim told Sergeant Brandenburg that “he had
indeed struck first but he claimed that Mr. Solomon had came at him in what
he describe[d] as an aggressive manner.” See RR, Vol. 3, pg. 62. See also
RR, Vol. 3, pg. 93. Rahim claimed the gun was never pointed at him. See
RR, Vol. 3, pgs. 62, 65. The gun wasn’t pulled while they were standing up.
See RR, Vol. 3, pg. 65. The gun got pulled out when they were on the
ground. See RR, Vol. 3, pgs. 65-66.
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When Officer Milton arrived, there was several people standing
around, and Sergeant Brandenburg was talking to a gentlemen that was later
identified as Asim Rahim. See RR, Vol. 3, pg. 31. Officer Milton
recognized Mr. Bobby Harrison, “Paulia” Harrison and Thomas. See RR,
Vol. 3, pgs. 31-32, 158. Officer Milton spoke with Mr. Solomon, the victim,
to get his side of the story of what happened. See RR, Vol. 3, pgs. 32, 36.
Mr. Solomon was “about 5’ 8” (RR, Vol. 3, pgs. 68, 120) or “5’ 6” because
he was “the smallest one growing up in Booker T when he was growing up
back in the day.” See RR, Vol. 3, pg. 187.
Mr. Solomon said he walked in the store, and Rahim said to him, “we
need to talk.” See RR, Vol. 3, pg. 32. Rahim admitted that he confronted
the victim. See RR, Vol. 3, pg. 68. So, they went outside. See RR, Vol. 3,
pgs. 32, 38, 44, 66. Mr. Solomon said that Rahim started accusing him of
having an affair with his wife. See RR, Vol. 3, pg. 32. See also RR, Vol. 3,
pg. 77 (Rahim was upset and felt like Mr. Solomon was seeing his wife).
Mr. Solomon said that Bobby Bostic, Jr. (Bostic), a friend of theirs, had been
spreading those rumors. See RR, Vol. 3, pg. 32. Mr. Solomon met Rahim
through Bostic, a veteran friend. See RR, Vol. 3, pg. 176. Mr. Solomon
denied an affair (RR, Vol. 3, pg. 32) by saying, “No, I did not.” See RR,
-7-
Vol. 3, pg. 175. See also RR, Vol. 3. Pg. 186.
At that time, Mr. Solomon said that Rahim started punching him and
picked him up to slam him on the concrete. See RR, Vol. 3, pgs. 32, 44-45.
“That’s when he picked me up and he slammed me down on the concrete.”
See RR, Vol. 3, pg. 181. Harrison witnessed “him up in the air” (RR, Vol.
3, pgs. 159, 161), and “he dropped down . . . on the side of the concrete.”
See RR, Vol. 3, pg. 159. See also RR, Vol. 3, pgs. 168, 181-182, 191;
State’s Exhibit 10.
It appeared to Officer Milton that the defendant, Rahim, was a large
and strong enough individual to have picked up and thrown down Mr.
Solomon. See RR, Vol. 3, pg. 46. Officer Milton also talked to Rahim. See
RR, Vol. 3, pgs. 37, 41-42. See also State’s Exhibit 18. Officer Milton
talked to Rahim in the “right backseat” of Officer Bigler’s patrol car. See
RR, Vol. 3, pg. 42.
During that conversation, Rahim said that he struck Mr. Solomon.
See RR, Vol. 3, pg. 38. “There was gun mentioned but [Rahim] said that
Mr. Solomon did not pull the gun on him.” See RR, Vol. 3, pg. 38.
Mr. Solomon “was bent over holding his side.” See RR, Vol. 3, pg.
44. See also RR, Vol. 3, pgs. 122, 188. Mr. Solomon “was wincing in pain
-8-
and appeared to be in a great deal of pain.” See RR, Vol. 3, pg. 45. See also
RR, Vol. 3, pg. 64 (“could tell by his facial expressions he was wincing in
pain; he was holding his side.”), pg. 167. According to Mr. Solomon, he
was feeling “a lot of pain” (RR, Vol. 3, pg. 186), and he “could barely
breathe.” See RR, Vol. 3, pg. 189.
On two or three times, Officer Milton asked if Mr. Solomon need an
ambulance. See RR, Vol. 3, pg. 45. “Each time he said no.” See RR, Vol.
3, pg. 45. See also RR, Vol. 3, pg. 189.
Later, Mr. Solomon did get in the ambulance and go to the hospital.
See RR, Vol. 3, pgs. 41, 44-45, 58, 132, 167, 189. Mr. Solomon went to
Paris Regional Medical Center emergency room, where he was in the ICU at
the hospital for at least four (4) days from November 20th to November 23,
2013. See RR, Vol. 3, pg. 94; State’s Exhibit 17 (medical records). See also
RR, Vol. 3, pgs. 94-99, 190.
Officer Milton went to see Mr. Solomon in the hospital to check his
injuries. See RR, Vol. 3, pg. 45. Other than being upset, Officer Milton did
notice some spots of blood and a cut on one hand. See RR, Vol. 3, pg. 45.
See also RR, Vol. 3, pgs. 47-50; State’s Exhibits 1-8. Officer Milton spoke
with Mr. Solomon’s doctor, who said he had fractured ribs and a collapsed
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lung and would need to see a surgeon. See RR, Vol. 3, pg. 50. See also RR,
Vol. 3, pg. 169.
After Mr. Solomon left the hospital, he was still in pain. See RR, Vol.
3, pg. 191. Mr. Solomon carried a cane for at least five months. See RR,
Vol. 3, pg. 191.
Sergeant Brandenburg did not arrest the defendant, Rahim, that day.
See RR, Vol. 3, pg. 57. Sergeant Brandenburg sent the case off to the
Criminal Investigation Division (or “CID”) because there were more
witnesses that needed to be interviewed by CID. See RR, Vol. 3, pgs. 57,
75.
Further Investigation by CID.
James Mazy was a lieutenant and peace officer in the criminal
investigation division with the City of Paris Police Department (Lieutenant
Mazy). See RR, Vol. 3, pgs. 84-85. Lieutenant Mazy had a chance to
investigate an incident that happened on November 20, 2013. See RR, Vol.
3, pg. 86.
Before Lieutenant Mazy could actually contact anyone, Rahim came
to the police department. See RR, Vol. 3, pgs. 86-87; State’s Exhibit 19.
Rahim was not in custody, and he contacted Lieutenant Mazy voluntarily.
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See RR, Vol. 3, pgs. 88-89.
On November 26, 2013, Lieutenant Mazy interviewed Rahim. See
RR, Vol. 3, pg. 99. Lieutenant Mazy also interviewed Mr. Harrison and his
wife at the same time. See RR, Vol. 3, pg. 103. Upon the conclusion of his
investigation, Lieutenant Mazy concluded that Mr. Solomon was assaulted
by Rahim. See RR, Vol. 3, pg. 99.
Jury Trial.
On August 5, 2014, the trial court presided over the voir dire
proceedings. See RR, Vol. 2, pgs. 1-66. After challenges for cause and
peremptory strikes, the trial court impaneled a petit jury of six regular jurors
and one alternate. See RR, Vol. 2, pg. 69.
On August 13, 2014, the trial court proceeded with the jury trial in
cause number 61685 by pre-admitting State’s Exhibits 1-8, which were
pictures, along with State’s Exhibit 17, the medical records. See RR, Vol. 3,
pgs. 7-8. The trial court then administered the oath to the jurors. See RR,
Vol. 3, pg. 10.
After the trial court gave additional instructions to the jury (RR, Vol.
3, pgs. 10-16) and to the witnesses after the Rule was invoked, the State
presented the charging instrument. See RR, Vol. 3, pgs. 18-19. Rahim
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entered a plea of “not guilty.” See RR, Vol. 3, pg. 19.
Following opening statements (RR, Vol. 3, pgs. 20-27), the State
called Officer Milton as its first witness. See RR, Vol. 3, pg. 28. During his
testimony, Officer Milton identified Rahim as the defendant in open court.
See RR, Vol. 3, pg. 37. As its next witness, the State called Sergeant
Brandenburg, who also identified Rahim as the defendant in open court. See
RR, Vol. 3, pg. 63. The State’s third witness, Lieutenant Mazy, also
identified Rahim as the defendant in open court. See RR, Vol. 3, pg. 90.
The State called several additional witnesses and concluded with Mr.
Solomon as its last witness. See RR, Vol. 3, pg. 199. Upon the conclusion
of Mr. Solomon’s testimony, the State rested. See RR, Vol. 3, pgs. 200-201.
As Rahim began his case-in-chief, defense counsel called Kameel
McWilliams (McWilliams). See RR, Vol. 3, pg. 201. Following the
testimony of McWilliams (RR, Vol. 3, pgs. 201-212), Rahim testified on his
own behalf. See RR, Vol. 3, pg. 212-248. At the conclusion of his
testimony, Rahim rested. See RR, Vol. 3, pg. 249. Subsequently, both
parties rested and closed. See RR, Vol. 3, pg. 254.
Following a charge conference, the trial court inquired, “any
objections, concerns, comments on the jury charge?” See RR, Vol. 3, pg.
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255. The State voiced “[n]o objections or concerns regarding the jury
charge, Your Honor.” See RR, Vol. 3, pg. 255. Through defense counsel,
Rahim voiced, “No objections, no concerns, Your Honor.” See RR, Vol. 3,
pg. 256. The trial court then read the court’s charge to the jury. See RR,
Vol. 3, pg. 257; CR, pgs. 54-56.
After closing arguments (RR, Vol. 3, pgs. 258-270), the jury retired to
begin its deliberations. See RR, Vol. 3, pg. 270. Upon the conclusion of its
deliberations, the jury reached a verdict. See RR, Vol. 3, pgs. 271-272. By
its verdict, the jury found Rahim guilty of the offense of assault causing
bodily injury, as charged in the information. See RR, Vol. 3, pg. 272; CR,
pg. 57.
The trial court then proceeded with the punishment phase of the jury
trial. See RR, Vol. 3, pg. 274. Upon the conclusion of the punishment
phase, the State rested. See RR, Vol. 3, pg. 287. Rahim elected not to take
the stand, and the defense rested. See RR, Vol. 3, pg. 287. Both sides rested
and closed. See RR, Vol. 3, pg. 288.
The trial court then read its punishment charge to the jury. See RR,
Vol. 3, pg. 289; CR, pgs. 58-60. After closing arguments (RR, Vol. 3, pgs.
290-293), the jury retired to begin its deliberations. See RR, Vol. 3, pg. 293-
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294. Upon the conclusion of its deliberations, the jury reached a verdict.
See RR, Vol. 3, pgs. 295-296. By its verdict, the jury assessed punishment
at confinement for 365 days in the Lamar County jail and assessed a fine of
none. See RR, Vol. 3, pg. 296; CR, pg. 61. Later, the trial court set an
appeal bond and pronounced sentence. See RR, Vol. 3, pgs. 298-299.
On August 13, 2014, the trial court signed its final judgment of
conviction. See CR, pgs. 62-64. Rahim timely filed his notice of appeal.
See CR, pg. 65.
Proceedings in this Court.
On or about August 18th, Rahim filed his notice of appeal in this
Court. The County Clerk of Lamar County filed the Clerk’s Record on or
about September 18, 2014. The official court reporter filed the Reporter’s
Record on or about December 1, 2014.
The appellant, Rahim, filed the first (of two) motions for extension of
time to file his brief, which this Court granted initially until January 21,
2015. After this deadline, Rahim filed his brief on or about January 25,
2015 along with a second motion for extension of time, which this Court
granted on January 27, 2015.
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The State filed a motion for extension of time, which this Court
granted on March 3, 2015. The State filed its brief on March 19, 2015.
SUMMARY OF THE ARGUMENT
By this appeal, Rahim brings two (2) issues/points of error. This
Court should overrule each of these issues/points of error for these reasons:
(1) Jury charge error did not exist in the present case because the
extraneous-offense-evidence was admissible to rebut Rahim’s defensive
theory of self-defense and/or to show Rahim’s intent. Because jury charge
error did not exist, the present case should not involve an analysis for
egregious harm; but even it did, Rahim could not prove egregious harm.
(2) This Court should order the trial court clerk (i.e. the County
Clerk of Lamar County, Texas) to supplement this appellate record with a
certified bill of costs. Once this Court has ordered and received this
supplemental bill of costs, the evidence will be legally-sufficient to support
the trial court’s final judgment of conviction, which required the appellant
(Rahim) to pay court costs.
In summary, this Court should overrule the appellant’s, Rahim’s, two
(2) issues/points of error on appeal, and affirm the trial court’s final
judgment of conviction in all respects.
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ARGUMENT AND AUTHORITIES
ISSUE PRESENTED IN REPLY NO. 1: JURY CHARGE ERROR
DID NOT EXIST; OR IN THE ALTERNATIVE, THE APPELLANT,
RAHIM, COULD NOT PROVE EGREGIOUS HARM.
A. Standard of Review: Egregious Harm.
“[A]n affirmative denial of objection, as in this case, shall be deemed
equivalent to a failure to object.” See Bluitt v. State, 137 S.W.3d 51, 53
(Tex. Crim. App. 2004). “An appellant may raise such unobjected-to charge
error on appeal, but may not obtain a reversal for such error unless it resulted
in egregious harm.” See id.
In the present case, as in Bluitt, Rahim stated through his counsel, “No
objections, no concerns, Your Honor.” See RR, Vol. 3, pg. 256. Such an
affirmative denial of objection should be deemed equivalent to a failure to
object. See Bluitt, 137 S.W.3d at 53. Under Bluitt, Rahim may raise such
unobjected-to charge error on appeal, but may not obtain a reversal for such
error unless it resulted in egregious harm. See id.
B. Jury Charge Error Did Not Exist: The Trial Court Did Not
Abuse its Discretion in Instructing the Jury That It Could Consider
Evidence of the 2007 Assault.
With his first issue/point of error, Rahim contended that the trial court
erred when it instructed the jury in its charge that it could consider evidence
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of the appellant’s prior bad acts as evidence of his character because
character was not an essential element of a charge or defense. See
Appellant’s Brief, pgs. 10, 14 (citing Tate v. State, 981 S.W.2d 189, 193 n. 5
(Tex. Crim. App. 1998)). In assessing jury charge errors, however, this
Court must first determine whether error exists. See Shipp v. State, 331
S.W.3d 433, 443 (Tex. Crim. App. 2011).
In the present case, jury charge error did not exist because an
extraneous offense may be used to rebut a defensive theory, such as self-
defense, even though the purpose is not mentioned in Tex. R. Evid. 404(b).
See, e.g., Robinson v. State, 844 S.W.2d 925, 929 (Tex. App.--Houston [1st
Dist.] 1992, no pet.) (citing Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim.
App. 1988); Halliburton v. State, 528 S.W.2d 216, 219 (Tex. Crim. App.
1975) (op. on reh’g); Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim.
App. 1972)). Citing Halliburton, it is well settled, according to this Court,
that when an accused claims self-defense, the State, in order to show the
accused’s intent, may introduce rebuttal evidence of prior violent acts by the
accused in order to show the intent of the person claiming self-defense. See
Jones v. State, 241 S.W.3d 666, 669 (Tex. App.--Texarkana 2007, no pet.)
(Lamar County); Johnson v. State, 963 S.W.2d 140, 144 (Tex. App.--
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Texarkana 1998, pet. ref’d); Armstrong v. State, 850 S.W.2d 230, 236 (Tex.
App.--Texarkana 1993), aff’d, 897 S.W.2d 361 (Tex. Crim. App. 1995).
As applied here, the trial judge initially recalled the testimony from a
defense witness, who testified during Rahim’s case-in-chief, along with the
testimony from Rahim himself, and then ruled the following:
I also recall that the young man who testified -- he was
wearing the black shorts and the green shirt with the black
glasses. He was, I think, the first Defense witness. I can’t think
of his name.
MS. HAIRSTON: The little boy, Devon
Washington?
THE COURT: No. No.
MR. BRANNAN: Kameel McWilliams.
THE COURT: I believe that he testified that the
Defendant was -- and I’m paraphrasing his words -- a peaceful,
law-abiding citizen. I think that was the impression he left with
the jury, that Defendant would not be the aggressor in this kind
of a situation. So, I think we have had evidence -- and I believe
the Defendant himself when he testified a while ago -- again,
testified that he was a peaceful and law-abiding citizen. And
I’m paraphrasing the testimony.
So, I believe the Defendant’ character for being a
peaceful and law-abiding citizen is in issue and considering the
self-defense claim, the State offering this evidence under 404
and 405, I believe that it is in fact relevant.
See RR, Vol. 3, pgs. 242-243.
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As set forth above, the trial court did not abuse its discretion in
“allow[ing] the State to ask questions regarding the 2007 assault” (RR, Vol.
3, pg. 243) because (1) the extraneous offense could be used to rebut
Rahim’s defensive theory of self-defense, see Robinson, 844 S.W.2d at 929;
and/or (2) the State, in order to show Rahim’s intent, could introduce
rebuttal evidence of prior violent acts by the accused (Rahim) in order to
show the intent of the person claiming self-defense. See Jones, 241 S.W.3d
at 669; Johnson, 963 S.W.2d at 144; Armstrong, 850 S.W.2d at 236. For
these reasons, the extraneous-offense-evidence was admissible, and the trial
court did not err in instructing the jury that it could consider evidence of the
2007 assault. See id. Thus, jury charge error did not exist. See Shipp, 331
S.W.3d at 443. In conclusion, Rahim’s first issue/point of error should be
overruled, and this Court should not address his claim of egregious harm.
See Appellant’s Brief, pgs. 15-16.
C. Alternatively, Rahim Could Not Prove Egregious Harm.
“[E]gregious harm is a difficult standard to prove and such a
determination must be done on a case-by-case basis.” See Taylor v. State,
332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (citing Hutch v. State, 922
S.W.2d 166, 172 (Tex. Crim. App. 1996)). “[T]he actual degree of harm
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must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the
argument of counsel and any other relevant information revealed by the
record of the trial as a whole.” See Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1985). This Court should examine any “part of the record
as a whole which may illuminate the actual, not just theoretical, harm to the
accused.” See Taylor, 332 S.W.3d at 490. “Errors which result in egregious
harm are those that affect the very basis of the case, deprive the defendant of
a valuable right, vitally affect the defensive theory, or make a case for
conviction clearly and significantly more persuasive.” See id.
In applying the law to this appellate record as a whole, Rahim could
still not prove egregious harm because first, the entire jury charge correctly
included a limiting instruction. See CR, pg. 55; Graves v. State, 176 S.W.3d
422, 433 (Tex. App.--Houston [1st Dist.] 2004, pet. dism’d) (extraneous
offenses thus get a limiting instruction under article 38.37 during the guilt
innocence phase). Second, the state of the evidence, including the contested
issues and weight of probative evidence, was still strong even without the
extraneous evidence of the 2007 assault because a number of eyewitnesses
(Thomas, Washington, Harrison) still testified against Rahim and his version
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of the November 20th events. Third and finally, the argument of counsel for
the State did not even mention the 2007 assault during the opening argument
(RR, Vol. 3, pgs. 258-262), and the final closing argument had only a brief
reference. See RR, Vol. 3, pg. 268 (“You heard he had assaultive behavior
in the past.”).
Viewing this record as a whole, Rahim could not establish any actual
harm. See Taylor, 332 S.W.3d at 490. Accordingly, the appellant’s,
Rahim’s, first issue/point of error should be overruled.
ISSUE PRESENTED IN REPLY NO. 2: THIS COURT SHOULD
ORDER THE SUPPLEMENTATION OF THE CLERK’S RECORD
TO INCLUDE A CERTIFIED BILL OF COSTS.
A. Introduction.
With his final issue, Rahim contended that the record did not contain a
certified bill of costs; therefore, the appellant cannot be made to pay costs of
court. See Appellant’s Brief, pg. 17. In this regard, Rahim argued that since
the record did not contain a certified bill of costs, a judgment against him for
costs cannot be supported. See Appellant’s Brief, pg. 17.
B. Standard of Review: Sufficiency of Evidence for Costs
Assessment.
An appellant in a criminal case may challenge the sufficiency of the
evidence supporting court costs on direct appeal. See Armstrong v. State,
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340 S.W.3d 759, 766-67 (Tex. Crim. App. 2011). To measure the
sufficiency of the evanesce supporting an award of court costs, this Court
must view the record in the light most favorable to the award. See Whatley
v. State, No. 06-12-00117-CR, 2014 WL 7399130, at * 1, 2014 Tex. App.
LEXIS 13839, at * 2 (Tex. App.--Texarkana December 30, 2014, no pet.)
(mem. op., not designated for publication) (citing Mayer v. State, 309
S.W.3d 552, 557 (Tex. Crim. App. 2010)). If a criminal action is appealed,
the Texas Code of Criminal Procedure required that “an officer of the court
shall certify and sign a bill of costs stating the costs that have accrued and
send the bill of costs to the court to which the action or proceeding is
transferred or appealed.” See Tex. Code Crim. Proc. Ann. art. 103.006
(West 2006). Further, “[a] cost is not payable by the person charged with
the cost until a written bill is produced or is ready to be produced, containing
the items of cost, signed by the officer who charged the cost or the officer
who is entitled to receive payment for the cost.” See Tex. Code Crim. Proc.
Ann. art. 103.001 (West 2006); Ballinger v. State, 405 S.W.3d 346, 348
(Tex. App.--Tyler 2013, no pet.). In addition, there is no requirement that a
certified bill of costs be filed, either at the time the judgment is signed or
before the case is appealed. See Whatley, 2014 WL 7399130, at * 1, 2014
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Tex. App. LEXIS 13839, at * 2-3 (citing Ballinger, 405 S.W.3d at 348).
When a cost assessment is challenged on appeal, and the bill of costs
has been omitted from the appellate record, then the clerk’s record may be
supplemented with the bill of costs. See Tex. R. App. P. 34.5(c)(1); Johnson
v. State, 423 S.W.3d 385, 392 (Tex. Crim. App. 2014); Whatley, 2014 WL
7399130, at * 1, 2014 Tex. App. LEXIS 13839, at * 3; Ballinger, 405
S.W.3d at 348. In this situation, “supplementing the record to include the
bill of costs is appropriate and does not violate due process.” See Ballinger,
405 S.W.3d at 349.
C. Application of Law to the Present Case.
In Randyael Dontrell Tyson v. The State of Texas, No. 06-14-00114-
CR, 2015 Tex. App. LEXIS 2506, at * 13-15 (Tex. App.--Texarkana March
18, 2015, n.p.h.), a recent appeal from Lamar County which raised a similar
complaint to the one in the present case, this Court asked the County Clerk
of Lamar County to prepare and file an itemized bill of costs. See id, 2015
Tex. App. LEXIS 2506, at * 15. In response, this Court received a
supplemental clerk’s record containing a certified bill of costs. See id. In
Tyson, the itemized bill of costs showed that, excluding the fine that was
also included as court costs, the total amount of court costs was $302.00.
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See id. Because the supplemental record contained a bill of costs supporting
the amount of court costs assessed, this Court in Tyson found that there was
sufficient evidence to support the trial court’s judgment for costs. See id.
As in Tyson, the same outcome and/or result should occur here. If not
already requested, this Court should, again, ask the County Clerk of Lamar
County, Kathy Marlowe, to prepare and file an itemized bill of costs. See id;
Tex. R. App. P. 34.5(c)(1); Johnson v. State, 423 S.W.3d 385, 392 (Tex.
Crim. App. 2014); Whatley, 2014 WL 7399130, at * 1, 2014 Tex. App.
LEXIS 13839, at * 3; Ballinger, 405 S.W.3d at 348. In this situation,
“supplementing the record to include the bill of costs is appropriate and does
not violate due process.” See Ballinger, 405 S.W.3d at 349. The State prays
for such relief.
Once the supplemental record containing a bill of costs is received
from the County Clerk of Lamar County, there should be sufficient evidence
to support the trial court’s judgment for costs in the amount of $302.00. See
Tyson, 2015 Tex. App. LEXIS 2506, at * 15. Accordingly, the appellant’s,
Rahim’s, second issue/point of error should be overruled.
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PRAYER
WHEREFORE PREMISES CONSIDERED, the State of Texas prays
that upon final submission without oral argument, this Court order the trial
court clerk to supplement the appellate record to include a certified bill of
costs; and then affirm the trial court’s final judgment of conviction, adjudge
court costs against the appellant, and for such other and further relief, both at
law and in equity, to which it may be justly and legally entitled.
Respectfully submitted,
Gary D. Young
Lamar County & District Attorney
Lamar County Courthouse
119 North Main
Paris, Texas 75460
(903) 737-2470
(903) 737-2455 (fax)
By:________________________________
Gary D. Young, County Attorney
SBN# 00785298
ATTORNEYS FOR STATE OF TEXAS
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CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
the “Appellee’s (State’s) Brief” was a computer-generated document and
contained 6275 words--not including the Appendix, if any. The undersigned
attorney certified that he relied on the word count of the computer program,
which was used to prepare this document.
______________________________
GARY D. YOUNG
gyoung@co.lamar.tx.us
CERTIFICATE OF SERVICE
This is to certify that in accordance with Tex. R. App. P. 9.5, a true
copy of the “Appellee’s (State’s) Brief” has been served on the 19TH day of
March, 2015 upon the following:
Don Biard
McLaughlin Hutchison & Biard LLP
38 First Northwest
Paris, TX 75460
______________________________
GARY D. YOUNG
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