ACCEPTED
04-14-00256-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/4/2015 4:11:45 PM
KEITH HOTTLE
CLERK
NO.
04-‐14-‐00256-‐CR
IN
THE
COURT
OF
APPEALS
FILED IN
4th COURT OF APPEALS
FOURTH
COURT
OF
APPEALS
DISTRICT
SAN ANTONIO, TEXAS
SAN
ANTONIO,
TEXAS
3/4/2015 4:11:45 PM
KEITH E. HOTTLE
Clerk
JEFFREY
LEE,
Appellant
V.
THE
STATE
OF
TEXAS
Appellee
ON
APPEAL
FROM
THE
187th
DISTRICT
COURT
OF
BEXAR
COUNTY
TEXAS
CAUSE
NUMBER
2012-‐CR-‐6806
BRIEF
FOR
THE
APPELLANT
EDWARD
F.
SHAUGHNESSY
206
E.
Locust
Street
San
Antonio,
Texas
78212
(210)
212-‐6700
(210)
212-‐2178
(FAX)
Shaughnessy727@gmail.com
SBN
18134500
ORAL
ARGUMENT
WAIVED
ATTORNEY
FOR
APPELLANT
PARTIES
AND
COUNSEL
TRIAL
COUNSEL
FOR
THE
STATE:
DAVID
LUNAN
&
DARYL
HARRIS
Assistant
Criminal
District
Attorneys
101
W.
Nueva
San
Antonio,
Texas
78205
TRIAL
COUNSEL
FOR
APPELLANT:
THERESA
CONNOLLY
106
S.
St.
Mary’s
San
Antonio,
Texas
78205
APPELLANT’S
ATTORNEY
ON
APPEAL:
EDWARD
F.
SHAUGHNESSY,
III
206
E.
Locust
Street
San
Antonio,
Texas
(210)
212-‐6700
(210)
212-‐2178
Fax
SBN
18134500
TRIAL
JUDGE:
RAYMOND
ANGELINI
187th
Judicial
District
Atascosa
County,
Texas
ii
TABLE
OF
CONTENTS
PAGE(S)
Parties and Counsel…………………………………………………………………………………ii
Table of Contents……………………………………………………………………………………iii
Table of Authorities…………………………………………………………………………………iv
Brief for the Appellant………………………………………………………………………………5
Summary of the Argument…………………………………………………………………………7
Appellant’s Sole Point of Error……………………………………………………………………8
Conclusion and Prayer………………………………………………………………………………16
Certificate of Service………………………………………………………………………………….17
Certificate of Compliance……………………………………………………………………………18
iii
TABLE
OF
AUTHORITIES
PAGE(S)
STATE
CASE(S)
Brooks
v.
State,
323
S.W.3d
893
(Tex.
Crim.
App.
2010)……………………………………………...……..13
Dixon
v.
State
541
S.W.2d
437
(Tex.
Crim.
App.
1976)……………………………...………………………..15
Gear
v.
State,
340
S.W.3d
743
(Tex.
Crim.
App.
2011)………………………………………………………..13
Gormany
v.
State,
640
S.W.2d
303
(Tex.
Crim.
App.
1982)…………………………………………………15
Jackson
v.
Virginia
443
U.S.
307,
99
S.
Ct.
2781,
61
L.Ed.2d
560
(1979)……………………………….13
Moore
v
State,
640
S.W.2d
303
(Tex.
Crim.
App.
1982)………………………………………………..…….15
Padilla
v.
State,
326
S.W.3d
195
(Tex.
Crim.
App.
2010)………………………………………………….…13
Spencer
v.
State,
628
S.W.2d
220
(Tex.
App.-‐Corpus
Christi,
1982,
pet.
ref’d.)……………………….15
Whatley
v.
State,
445
S.W.3d
159,
(Tex.
Crim.
App.
2014)………………………………………………...13
Winfrey
v.
State,
393
S.W.3d
763
(Tex.
Crim.
App.
2013)………………………………...……...….………13
STATUTE(S)
AND
CODE(S)
Tex.
Penal
Code
Ann.
§
29.03
(West
2014)……………………………………………………………………….8
iv
NO.
04-‐14-‐00256-‐CR
JEFFREY
LEE,
§
COURT
OF
APPEALS,
FOURTH
Appellant
§
V.
§
COURT
OF
APPEALS
DISTRICT
THE
STATE
OF
TEXAS,
§
Appellee
§
SAN
ANTONIO,
TEXAS
BRIEF
FOR
THE
APPELLANT
TO
THE
HONORABLE
COURT
OF
APPEALS:
Now
comes
the
appellant,
Jeffrey
Lee,
and
files
this
brief
in
Cause
No.
04-‐14-‐00256-‐CR.
The
appellant
appeals
from
a
judgment
of
conviction,
entered
against
him
on
April
4,
2014.
(C.R.-‐50,51)
The
appellant
was
indicted
by
a
Bexar
County
Grand
Jury
on
August
27,
2012
for
the
offenses
of
Aggravated
Robbery
(Repeater)
in
cause
number
2012-‐CR-‐6806.
(C.R.-‐5)
The
appellant
exercised
his
right
to
a
jury
trial.
The
appellant
was
found
guilty,
by
the
jury,
of
the
offense
as
charged
in
the
indictment.
(C.R.-‐48)
The
appellant’s
punishment
was
assessed
by
the
jury,
at
twenty-‐five
years
in
confinement
in
the
Texas
Department
of
Criminal
Justice-‐Institutional
Division
as
a
repeat
5
offender.
(C.R.-‐50,
51)
Notice
of
appeal
was
filed
thereafter
and
this
appeal
has
followed.
(C.R.-‐61)
6
SUMMARY
OF
ARGUMENT
The
evidence
presented
by
the
State
of
Texas
was
legally
insufficient
to
prove
that
the
appellant
was
the
perpetrator
of
the
offense
due
to
the
failure
of
the
complainant
to
identify
the
defendant/appellant
as
the
actor
who
committed
the
acts
alleged
in
the
indictment.
7
APPELLANT’S
S0LE
POINT
OF
ERROR
The
evidence
is
legally
insufficient
to
support
the
judgment
of
conviction
for
the
offense
alleged
in
the
indictment.
STATEMENT
OF
APPLICABLE
FACTS
As
noted
above
the
appellant
was
indicted
by
the
Bexar
County
grand
jury
for
the
offense
of
Aggravated
Robbery.1
The
indictment
alleged
in
pertinent
part:
“on
or
about
the
15th
day
of
January,
2012,
Jeffrey
Lee,
while
in
the
course
of
committing
theft
of
property
and
with
intent
to
maintain
control
of
said
property
did
intentionally
and
knowingly
threaten
and
place
Javier
Muro
in
fear
of
imminent
bodily
injury
and
death,
and
the
defendant
did
use
and
exhibit
a
deadly
weapon,
to
wit:
a
firearm.”
(C.R.-‐5)
In
support
of
the
allegations
in
the
indictment
the
Sate
produced
the
testimony
of
the
complainant/victim,
Javier
Muro2.
(R.R.4-‐18)
Muro
proceeded
to
testify
as
to
the
events
that
occurred
on
the
night
of
January
12,
2012.
According
to
Muro,
he
along
with
his
co-‐worker,
Gilda
1
Tex. Penal Code Ann. § 29.03 (West 2014).
2
Hereinafter referred to as Muro.
8
Hernandez,
had
completed
the
closing
of
their
place
of
employment3
at
roughly
9:30
P.M.
and
were
in
the
parking
lot
of
the
store,
when
an
individual
approached
Hernandez,
who
was
in
a
car
being
driven
by
her
sister.
(R.R.4-‐22,
29)
The
individual
in
question
was
armed
with
a
gun
and
was
aiming
it
at
Gilda.
(R.R.4-‐29,
30)
Gilda
and
the
driver
then
fled
the
scene
in
their
vehicle.
(R.R.4-‐30)
At
that
point
the
actor
approached
Muro
who
was
afoot.
(R.R.4-‐30)
Before
Muro
was
able
to
enter
his
vehicle
the
actor
aimed
the
weapon
at
Muro
and
demanded
his
wallet.
(R.R.4-‐30)
The
wallet
was
then
given
to
the
actor.
(R.R.4-‐30)
The
actor
then
demanded
that
Muro
open
the
store
and
the
two
then
proceeded
into
the
store,
at
which
time
the
actor
demanded
that
Muro
open
the
store’s
safe.
(R.R4-‐30,
31)
Due
to
a
time
lock
on
the
main
safe
the
safe
could
not
be
opened
immediately.
Consequently,
the
cash
drawers
were
given
to
the
actor
who
removed
an
unknown
amount
of
cash
from
the
cash
drawers
and
thereafter
fled
the
scene
on
foot.
(R.R.4-‐35,
36,
55)
With
respect
to
the
question
of
the
identity
of
the
actor,
Muro
related
that
the
perpetrator
was
a
black
man
wearing
a
mask
over
his
face
that
revealed
only
his
eyes,
which
he
described
as
“big
wide”
or
“bug-‐eyed”.
(R.R.4-‐39)
Shortly
after
the
actor
had
departed
the
scene,
3
A Dollar General store on Walzem Road. (R.R.4-19)
9
law
enforcement
officers
arrived
at
the
scene.
(R.R.4-‐57)
At
that
time
Muro
gave
a
statement
to
the
investigating
officers.
The
following
day
law
enforcement
came
to
the
store
with
a
“photo
array”
in
an
effort
to
obtain
an
identification
of
the
actor.
(R.R.4-‐65,
66)
After
using
a
folder
to
cover
the
lower
half
of
the
six
faces
displayed
in
the
photo
array
Muro
chose
photo
number
two
as
the
one
depicting
his
assailant
and
remarked
to
the
officer:
“This
is
the
guy”.
(R.R.4-‐66)
Muro
then
proceeded
to
circle
his
selection
on
the
photo
array.
(R.R.4-‐67)
Muro
was
never
asked
by
the
prosecutor
whether
the
individual
who
had
committed
the
assault/robbery
on
him
on
the
night
in
question,
was
the
defendant
present
in
court.
As
a
result,
Muro
never
identified
the
defendant/appellant
as
the
actor
who
had
committed
the
offense
as
outlined
by
Muro.
Muro’s
co-‐worker,
Gilda
Hernandez4
also
testified
on
behalf
of
the
prosecution.
(R.R.4-‐94)
Hernandez
also
testified
that
the
actor
was
a
black
man
wearing
a
hoodie
sweatshirt.
Some
two
weeks
later,
Hernandez
was
asked
to
participate
in
a
photo
array
identification
procedure
conducted
by
investigators
with
the
Bexar
County
Sheriff’s
Department.
At
that
time
Hernandez
viewed
a
photo
array
that
4
Hereinafter referred to as Hernandez.
10
contained
six
photographs
and
asked
whether
the
actor
was
depicted
in
any
of
the
photographs.
Hernandez
then
informed
that
the
actor
was
depicted
in
photo
number
two
which
she
then
circled
and
initialed.
(R.R.4-‐105,
106)
Once
again,
the
witness
was
not
asked
whether
the
individual
who
was
the
actor
on
the
night
in
question
was
in
fact
the
defendant/appellant.
Moreover,
Hernandez
was
not
asked
whether
the
individual
whom
she
identified
as
photo
number
two
was
the
defendant/appellant.
After
obtaining
fingerprints
from
the
scene,
later
shown
to
be
those
of
the
defendant’s,
members
of
the
Sheriff’s
Department
were
able
to
locate
a
photograph
of
the
defendant/appellant
which
was
used
to
compile
the
above-‐described
photo
arrays.
(R.R.5-‐30
thru
44)
The
final
witness
to
relate
information
related
to
the
identity
of
the
actor
was
Detective
Ward
of
the
Bexar
County
Sheriff’s
Department.5
(R.R.5-‐60)
Ward
related
that
he
had
sought
and
obtained
an
arrest
warrant
for
an
individual
named
Jeffrey
Lee
after
obtaining
a
photograph
of
an
individual
whose
fingerprints
resulted
in
a
“hit”
on
a
computer
generated
fingerprint
search
which
utilized
the
fingerprints
obtained
at
the
scene
of
the
offense.
(R.R.5-‐73)
Ward
also
related
that
he
5
Hereinafter referred to as Ward.
11
had
utilized
a
photo
spread
to
obtain
possible
identifications
of
the
perpetrator
from
Muro
and
Hernandez.
(R.R.5-‐76,
84)
Ward
related
that
those
two
had
both
indicated
that
the
individual
depicted
in
photo
number
two
was
the
perpetrator.
(R.R.5-‐76,
77)
Ward
also
related
that
the
person
identified
in
photo
number
two,
by
Muro,
was
an
individual
named
Jeffrey
Lee
and
the
person
depicted
in
that
photograph
was
the
defendant
sitting
in
the
courtroom.
(R.R.5-‐86)
He
related
the
same
scenario
regarding
the
witness
Hernandez.
(R.R.5-‐87)
It
is
crucial
to
note
that
the
State’s
multiple
stage
attempt
at
identifying
the
appellant/defendant
as
the
perpetrator
of
the
robbery
did
not
include
any
evidence
that
the
individual
purportedly
depicted
in
photo
number
two
was
the
same
Jeffrey
Lee
that
had
committed
the
offense
in
question.
In
order
for
the
fact-‐finder
to
conclude
that
the
defendant/appellant
was
the
Jeffrey
Lee
arrested
and
identified
through
the
use
of
the
photograph
in
question
the
record
would
have
to
contain
evidence
that
the
photograph
in
question
was
that
of
the
defendant/appellant.
That
evidence
is
lacking.
What
is
contained
in
the
record
is
testimony
that
the
individual
purportedly
depicted
in
the
photograph
was
named
Jeffrey
Lee
and
that
an
individual
bearing
that
name
was
in
the
courtroom.
12
ARGUMENTS
AND
AUTHORITIES
STANDARD OF REVIEW
In reviewing the legal sufficiency of the evidence to support a
conviction a reviewing court is mandated to consider all of the evidence in
a light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom a rational fact finder could
have found the elements of the offense beyond a reasonable doubt.
Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013); Gear v. State,
340 S.W.3d 743 (Tex. Crim. App. 2011). See: Jackson v. Virginia 443 U.S.
307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979). A reviewing court is required to
defer to the jury’s credibility determinations because the jury is sole arbiter
of the credibility of the witnesses Winfrey v. State, id. That standard gives
full play to the responsibility of the jury to fairly resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences from
basic facts to ultimate facts. Whatley v. State, 445 S.W.3d 159, (Tex. Crim.
App. 2014). The presence of conflicting inferences during the course of a
trial gives rise to a presumption that the trier of fact resolved the conflicts
in the favor of the prosecution. Padilla v. State, 326 S.W.3d 195 (Tex.
Crim. App. 2010). The fact-finder is the exclusive judge of the credibility of
the witnesses and of the weight to be assigned to their testimony. Brooks v.
State, 323 S.W.3d 893 (Tex. Crim. App. 2010).
13
The
ultimate
fact
that
was
to
be
resolved
in
the
instant
case
was
the
identity
of
the
individual
that
wielded
the
gun
at
the
Dollar
General
on
the
night
in
question.
Neither
of
the
two
witnesses
to
that
event
related
that
the
appellant/defendant
present
in
the
courtroom
was
that
individual.
Hence
the
evidence
is
legally
insufficient
unless
a
reasonable
inference
can
be
drawn
that
the
person
identified
through
the
photo
array
was
the
individual
in
the
courtroom.
That
inference
could
be
drawn
only
if
the
evidence
revealed
that
the
photograph
in
question
was
of
the
individual
in
the
courtroom.
That
evidence
is
lacking.
Ward
testified
only
that
the
two
witnesses
had
identified
the
person
in
the
photograph
as
their
assailant
and
the
photograph
appeared
to
be
that
of
the
individual
in
the
courtroom.
It
is
not
a
reasonable
inference
that,
because
of
the
existence
of
a
photograph
of
a
person,
who
might
in
fact
be
the
accused,
that
the
photograph
is
in
fact
that
of
the
accused.
That
fact
could
have
potentially
been
supplied
by
one
or
both
of
the
witnesses.
It
was
not.
Officer
Ward
could
have
taken
a
“booking”
photo
of
the
individual
who
had
been
arrested
and
charged
with
the
offense
in
question
and
inquired
of
the
witnesses
if
the
individual
depicted
in
the
booking
photograph
was
the
individual
who
had
committed
the
assault
conduct
that
formed
the
basis
for
the
indictment.
He
did
not.
14
The
evidence
presented
by
the
State,
on
the
issue
of
identification,
required
the
jury
to
infer
facts
that
were
not
reasonable:
that
being
that
the
identifying
photo
was
that
of
the
individual
who
had
been
arrested
for
the
offense
in
question
and
appeared
in
court
to
answer
the
indictment.
That
inference
amounts
to
an
unreasonable
one
and
should
not
be
sanctioned
by
this
Court.
As
a
result
the
evidence
is
legally
insufficient
to
support
the
judgment
of
conviction.
See:
Gormany
v.
State,
640
S.W.2d
303
(Tex.
Crim.
App.
1982);
Moore
v
State,
640
S.W.2d
303
(Tex.
Crim.
App.
1982);
Dixon
V.
State
541
S.W.2d
437
(Tex.
Crim.
App.
1976);
Spencer
v.
State,
628
S.W.2d
220
(Tex.
App.-‐Corpus
Christi,
1982,
pet.
ref’d.).
15
PRAYER
FOR
RELIEF
WHEREFORE,
PREMISES
CONSIDERED,
Appellant,
prays
that
this
Court,
reverse
the
judgment
of
the
trial
Court
and
remand
the
cause
for
the
entry
of
a
judgment
of
acquittal.
Edward F. Shaughnessy, III
EDWARD
F.
SHAUGHNESSY,
III
206
E.
Locust
San
Antonio,
Texas
78212
(210)
212-‐6700
(210)
212-‐2178
(fax)
Shaughnessy727@gmail.com
Attorney
for
the
appellant
16
CERTIFICATE
OF
SERVICE
I,
Edward
F.
Shaughnessy,
III
,
attorney
for
the
appellant,
hereby
certify
that
a
true
and
correct
copy
of
the
instant
brief
was
served
on
Nicholas
LaHood,
attorney
for
the
appellee,
by
United
States
Mail,
by
mailing
the
document
to
101
W.
Nueva,
San
Antonio,
Texas
78205
on
this
the
_4_
day
of
March,
2015.
Edward F. Shaughnessy, III
Edward
F.
Shaughnessy,
III
Attorney
for
the
appellant
17
CERTIFICATE
OF
COMPLIANCE
I,
Edward
F.
Shaughnessy,
III,
attorney
for
the
appellant,
hereby
certify
that
the
instant
document
contains
2281
words.
Edward F. Shaughnessy, III
Edward
F.
Shaughnessy,
III
18
Jeffrey Lee v. State
Combined Opinion