ACCEPTED
14-14-00687-CR
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
1/23/2015 11:05:17 AM
CHRISTOPHER PRINE
CLERK
No. 14-14-00687-CR
IN THE FILED IN
14th COURT OF APPEALS
FOURTENTH COURT OF APPEALS HOUSTON, TEXAS
1/23/2015 11:05:17 AM
STATE OF TEXAS CHRISTOPHER A. PRINE
Clerk
____________________
GERALD GERROD DARBY, Appellant
v.
THE STATE OF TEXAS, Appellee
____________________
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause Number 1384358
____________________
APPELLANT’S BRIEF
____________________
Joe David Wells
State Bar No. 90001904
PO Box 2064
Houston, Texas 77252
Tel (281) 410-8778
Fax (832) 201-0467
ATTORNEY FOR APPELLANT
Oral Argument Requested
NOTICE OF ALL INTERESETED PARTIES
Pursuant to TEX. R. APP. P. 38.1(a), the following persons are interested parties:
Appellant
Gerald Gerrod Darby
Attorneys for Appellant
Mr. Joe David Wells (on appeal)
P.O. Box 2064
Houston, Texas 77252
(281) 410-8778
Mr. Craig Bundick (at trial)
8123 BoJack Drive
Houston, Texas 77040
(713) 553-1544
Trial Judge
The Honorable Brad Hart
230th District Court
1201 Franklin
Houston, Texas 77002
Attorneys for State
Ms. Danielle Nettles (at trial)
Ms. Lauren Bard (at trial)
Ms. Kristina Daily (at trial)
Mr. Alan Curry (on appeal)
Harris County District Attorney‟s Office
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5800
2
TABLE OF CONTENTS
Page
Notice of All Interested Parties . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Point of Error Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
TRAP 9.4(i)(3) Certificate of Compliance . . . . . . . . . . . . . . . . . 16
3
TABLE OF AUTHORITES
page
Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) 12
Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App. 1987) 10
Fisher v. State, 887 S.W.2d 49 (Tex.Crim.App.1994) 13
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) 12,13
Johnson v. State, 364 S.W.3d 292 (Tex.Crim.App. 2012) 13
Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977). 10
Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375 (1972) 10
Simmons v. U. S., 390 U.S. 377, 88 S.Ct. 967 (1968) 10
4
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant Gerald Gerrod Darby was charged by indictment with the felony
offense of Burglary of a Habitation with Intent to Commit Theft in the 230th
District Court of Harris County, Texas, the Honorable Brad Hart presiding. (CR
p.11). Appellant‟s charge was enhanced with two prior felony convictions, an
Assault On A Public Servant out of the 336th District Court in Grayson County
from 2009 and a Burglary Of A Habitation out of the 232nd District Court in Harris
County from 2011. (Id). Appellant‟s first trial by jury ended in a mistrial on
February 12, 2014. (CR p.104). On August 13, 2014, appellant was convicted
following a second trial by a jury. (CR p.168). The jury assessed punishment at 62
years confinement in the institutional division of the Texas Department of Criminal
Justice. (Id). Appellant timely filed a notice of appeal. (CR p.171). This Court has
jurisdiction pursuant to Tex. R. App. P. 26.2. Appellant requests oral argument in
this case.
5
POINTS OF ERROR PRESENTED
I. Appellant was denied due process by a suggestive identification.
II. There was insufficient evidence for the jury to find beyond a reasonable
doubt that appellant committed the offense of burglary of a habitation with
intent to commit theft.
III. There was insufficient evidence for the jury to find beyond a reasonable
doubt that the enhancement paragraph in the indictment alleging a previous
felony conviction in Grayson County, Texas is true.
6
STATEMENT OF FACTS
On the morning of April 15, 2013, complaining witness, Alejandro Panjoj-
Moralez, was asleep in his apartment when he was awakened by a loud noise in his
living room. (RR IV p.21-22). When he entered his living room, he saw that two
men had broken into his apartment. (Id). One of the men was wearing a red t-shirt
with a cap on sideways and was standing in front of Mr. Moralez‟s laptop
computer. (RR IV p.23). Mr. Moralez was only able to see the backside of this
man‟s face. (RR IV p.35). His view of this man was brief, lasting only 4 to 7
seconds. (RR IV p.35-36). He was not able to see the other man‟s face because he
was crouching. (RR II p.10). Mr. Moralez then went back into his bedroom and
tried to wake up his brother who was staying with him. (RR IV p.24). When he
returned to his living room, he noticed that the two men were gone, that his front
door was broken and his laptop computer was gone. (Id).
Deyanira Socorro was babysitting at her apartment across from Mr. Moralez
on the morning of April 15, 2013. (RR V p.9). A man knocked on her apartment
door asking for a person who did not live at that apartment. (RR V p.9-10). Ms.
Socorro looked through the peep hole in her door and told him he was mistaken.
(Id). When she turned around, Ms. Socorro heard a loud noise in the hallway
outside her apartment. (RR V p.10). Ms. Socorro looked through the peep hole
again and saw a different man than the one who knocked on her door running
7
down the hall. (RR V p.10). She did not notice what this man was wearing, only
that he was darker complected than the one who had knocked on her door earlier.
(RR V p.10-11). Ms. Socorro then contacted the apartment management. (RR V
p.11). Ms. Socorro did not see the faces of either man she saw outside her door.
(RR V p.17). She was only able to describe them by skin tone. (RR V p.15).
The management from the apartment complex arrived and called the police.
(RR IV p.30). It took the police 20 minutes to arrive. (RR IV p.31). Forty to sixty
minutes after telling the police what happened, they returned to Mr. Moralez‟s
apartment with appellant in the backseat of their patrol car. (Id). The police asked
Mr. Moralez to identify the man in the back of the patrol car. (Id). Mr. Moralez
identified the appellant as the man he saw in his apartment. (Id).
Mr. Moralez testified that appellant was the only person in the patrol car and
the only person shown to him for identification. (RR IV p.32 & 37). Mr. Moralez
did not recall any admonishments being read to him prior to the identification. (RR
II p.7). He was never shown a photo spread with the appellant. (RR II p.13).
According to Mr. Moralez, the police did not tell him he was not obligated to
identify anyone or that the person who burglarized his apartment may or may not
be in the patrol car. (Id).
8
SUMMARY OF THE ARGUMENT
First, appellant was identified through a suggestive show up that denied him
of due process. Second, this suggestive show up identification is the only evidence
supporting appellant‟s conviction. This identification alone is insufficient to
support a conviction for Burglary of a Habitation. Third, the State failed to prove
the correct county for one of the prior convictions listed in the first enhancement
paragraph of the indictment. The State‟s failure to prove the enhancement
paragraph as pled is a material variance between the indictment and the proof that
entitles appellant to a new trial as to punishment.
9
ARGUMENT
I. Appellant was denied due process by a suggestive identification.
A court will invalidate an in court identification when it follows a pretrial
procedure which was “so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification”. Simmons v. United States,
390 U.S. 377, 384, 88 S.Ct. 967, 971 (1968). It is the likelihood of a
misidentification from a suggestive identification that may violate due process.
Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 382 (1972). Unnecessary
suggestiveness alone, however, does not automatically require the exclusion of the
out of court identification procedure. Id. The central question is whether, “under
the totality of the circumstances”, the identification was reliable even though the
confrontation procedure was suggestive. Id; see also Manson v. Brathwaite, 432
U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
“Among the considerations we examine in viewing the totality of the
circumstances and the likelihood of misidentification are the five
factors set out in Neil v. Biggers, supra and reaffirmed in Manson v.
Brathwaite, supra: (1) opportunity of the witness to view the criminal
at the time of the crime; (2) the witness' degree of attention; (3) the
accuracy of the witness' prior description of the criminal; (4) the level
of certainty demonstrated by the witness at the confrontation; (5) and
the length of time between the crime and the confrontation.”
Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App. 1987).
10
The totality of the circumstances surrounding appellant‟s identification make
it unreliable. First, the show up identification of appellant was impermissibly
suggestive. He was presented by himself in the back of a patrol car for
identification by the police. (RR IV p.32 & 37). Appellant was the only person
shown to Mr. Moralez for identification. (Id). He was never shown any photo
arrays from which to pick appellant. (RR II p.13). Mr. Moralez recalls no
admonishments being read to him prior to his identification of appellant. (RR II
p.7).
Second, the facts surrounding appellant‟s show up do not support a reliable
identification. Mr. Moralez‟s view of the intruders in his apartment was very
limited. He only saw the backside of one intruder‟s face, the man he claims is the
appellant, for 4 to 7 seconds. (RR IV p.35-36). His attention during this 4 to 7
seconds was affected by his efforts to avoid detection by the intruders in his
apartment. This is reflected in the poor detail given in his description of the
intruders. (RR IV p.23).
Given these facts surrounding appellant‟s identification and the suggestive
nature of the show up, appellant was denied due process. The admission of the
show up and the in court identification that followed denied appellant of a fair trial.
11
II. There was insufficient evidence for the jury to find beyond a reasonable
doubt that appellant committed the offense of burglary of a habitation
with intent to commit theft.
The standard for sufficiency of the evidence in criminal cases was
established by the United States Supreme Court in Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Texas Court of Criminal Appeals
has characterized the Jackson v. Virginia standard as follows: “Considering all of
the evidence in the light most favorable to the verdict, was a jury rationally
justified in finding guilt beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d
893, 899 (Tex.Crim.App. 2010), citing Jackson v. Virginia, 443 U.S. at 319. The
standard set forth in Jackson v. Virginia, “is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.” Brooks at 912.
Mr. Moralez was the only witness able to identify the appellant. Mr.
Moralez identification of appellant is tainted by the suggestive nature of the out of
court identification. According to Mr. Moralez, he was shown only the appellant
for identification. (RR IV p.32 &37). Mr. Moralez does not recall any
admonishments from the police prior to his viewing of appellant in the back of the
12
patrol car. (RR II p.7). Appellant was sitting by himself in the back of a patrol car
when he was “picked out”. (RR IV p.32 & 37).
There is no evidence supporting appellant‟s conviction other than Mr.
Moralez identification. The laptop stolen from Mr. Moralez apartment was not in
the possession of appellant when he was detained and was never recovered. (RR V
p.73). The other man that Mr. Moralez saw in his apartment was never arrested or
identified. The State produced no finger prints, DNA or other forensic evidence
incriminating appellant at trial.
The only evidence supporting appellant‟s conviction is a suggestive
identification. This evidence alone is insufficient to support a conviction for
burglary of a habitation beyond a reasonable doubt.
III. There was insufficient evidence for the jury to find beyond a reasonable
doubt that the enhancement paragraph in the indictment alleging a
previous felony conviction in Grayson County, Texas is true.
The Jackson v. Virginia standard “must be applied to the evidence and to a
correct charge that corresponds to the indictment allegations.” Fisher v. State, 887
S.W.2d 49, 53 (Tex.Crim.App.1994). The verdict comes from the jury‟s
determination of the evidence in light of the instructions and law given in the
charge. Id. The indictment is directed to the defendant for notice and jurisdiction
13
requirements. Id. It is the charge that convicts. Id. The sufficiency of the evidence
is measured by the charge that was given. Id.
Variances between the allegations pled in the charging instrument and the
proof at trial can be classified into three categories. Johnson v. State, 364 S.W.3d
292, 298 (Tex. Crim.App 2012). “First, a variance involving statutory language
that defines the offense always renders the evidence legally insufficient to support
the conviction (i.e. such variances are always material).” Id. “Second, a variance
involving a non-statutory allegation that describes an “allowable unit of
prosecution” element of the offense may or may not render evidence legally
insufficient, depending upon whether the variance is material (i.e. such variances
are sometimes material).” Id. “Finally, other types of variances involving
immaterial non-statutory allegations do not render the evidence legally
insufficient.” Id, 299.
For non-statutory allegations, some variance between pleading and proof is
tolerated. Id, 295. “We will tolerate little mistakes that do not prejudice the
defendant‟s substantial rights but we will not tolerate a variance that really
amounts to a failure to prove the offense alleged”. Id. The Court of Criminal
Appeals gave the following example to illustrate the type of non-statutory variance
that would not be tolerated:
14
“For example, in a murder prosecution, the victim‟s name need not be
proved with exactness, but the State must prove that the victim alleged
in the indictment is the same person as the victim proved at trial. If
the State has alleged the murder of „Dangerous Dan‟ but has proved,
instead, the murder of „Little Neill‟, then the State has proved a
different murder than it has alleged, and an acquittal is required. Id.
The State attempted to prove the enhancement allegations by introducing
certified copies of the judgments from appellant‟s prior convictions. (RR VI p.13-
14 and RR VII Ex. 10). The State‟s proof shows a conviction for assault on a
public servant in the 336th District Court in Fannin County, not Grayson County as
alleged in the indictment. (Id). Proof of the correct jurisdiction where an
enhancement offense occurred is a material element. Failure to prove the correct
county for an enhancement paragraph is a material variance between the
indictment and the proof at trial. This material variance renders the evidence of
appellant‟s first enhancement paragraph in the indictment insufficient. As a result,
appellant is entitled to a new trial as to punishment.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court
reverse the judgment and sentence in this case and enter an order of acquittal in his
favor or, in the alternative, a remand to the trial court for a new trial.
Respectfully submitted,
/s/ Joe David Wells
Joe David Wells
State Bar No. 90001904
P.O. Box 2064
Houston, Texas 77252
Tel (281) 410-8778
Fax (832) 201-0467
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I, Joe David Wells, do certify that a true and correct copy of this Appellant‟s
Brief was delivered to the Harris County District Attorney‟s Office by leaving a
copy with the Clerk of this Court for deposit in the Harris County District
Attorney‟s box.
/s/ Joe David Wells
Joe David Wells
TRAP 9.4(i)(3) CERTIFICATE OF COMPLIANCE
I, Joe David Wells, do certify that this document complies with Texas Rule
of Appellate Procedure 9.4(i)(3) and has a word count of 3,006 words.
/s/ Joe David Wells
Joe David Wells
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