ACCEPTED
1-14-01005-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
6/8/2015 12:00:00 AM
CHRISTOPHER PRINE
CLERK
01-14-01005-CR
IN THE COURT OF APPEALS FOR
FILED IN -
1st COURT OF--APPEALS
THE FIRST JUDICIAL DISTRICT OF TEXAS - ----
HOUSTON, -
--- TEXAS
- - ----ID K ------
HOUSTON 6/7/2015- 10:28:58
- -- PM
---- VO ------
CHRISTOPHER -- A. PRINE
- ----
--Clerk
HAROLD JOSEPH NORWOOD, JR., -
Appellant
Vs.
FILED IN
1st COURT OF APPEALS
THE STATE OF TEXAS, HOUSTON, TEXAS
6/8/2015 11:34:00 AM
Appellee
CHRISTOPHER A. PRINE
Clerk
APPEALING THE TRIAL COURT’S JUDGMENT
ON VERDICT OF GUILY IN
CAUSE NO. 13-CR-1311
IN THE 405TH JUDICIAL DISTRICT COURT
OF GALVESTON COUNTY, TEXAS
APPELLANT’S BRIEF
ZACHARY MALONEY
SBN 24030761
MALONEY & PARKS, L.L.P.
2925 GULF FREEWAY S. STE. B #295
LEAGUE CITY, TEXAS 77573
(713) 228-2277 Ofc.
(866) 838-5656 Fax.
ZACHMALONEY@GMAIL.COM
ORAL ARGUMENT IS REQUESTED ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Attorneys for the State at trial
Mr. Matthew Shawhan
SBOT NO. 24061342
Mr. William Reed
SBOT NO. 00794516
600 59th Street, St. 1001
Galveston, Texas 77552
Phone: (409) 766-2355
Attorney for Appellant on Appeal
Zachary S. Maloney
SBN 24030761
MALONEY & PARKS, L.L.P.
2925 GULF FREEWAY S. STE. B #295
LEAGUE CITY, TEXAS 77573
(713) 228-2277 Ofc.
(866) 838-5656 Fax.
ZACHMALONEY@GMAIL.COM
i
TABLE OF CONTENTS
Identity of Parties and Counsel i
Index of Authorities iii
Statement of the Case vi
Statement of Facts vii
Summary of the Arguments 1
Points, Arguments and Authorities 2 & 13
Prayer 14
Certificate of Service 15
ii
INDEX OF AUTHORITIES
Cases
Almanza, 686 S.W.2d 157 (Tex.Crim.App.1985) 8,9
Blake v. State, 971 S.W.2d 451 (Tex.Crim.App.1998) 2,4,5,12
Cain v. State, 958 S.W.2d 404 (Tex.Crim.App.1997) 13,14
Casanova v. State, 383 S.W.3d 530 (Tex.Crim.App.2012) 8
Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996) 13, 14
Cocke v. State, 201 S.W.3d 744 (Tex.Crim.App.2006) 3, 5
De La Rosa v. State, 919 S.W.2d 791 (Tex.App.–San Antonio 1996, pet. ref'd) 6,7
Delgado v. State, 235 S.W.3d 244 (Tex.Crim.App.2007) 9, 11
Druery v. State, 225 S.W.3d 491 (Tex.Crim.App.2007) 2, 3
Freeman v. State, 352 S.W.3d 77 (Tex.App.–Houston [14th Dist.] 2011, pet. ref'd)
11
Granger v. State, 3 S.W.3d 36 (Tex.Crim.App.1999) 11
Herron v. State, 86 S.W.3d 621 (Tex.Crim.App.2002) 8
Hitt v. State, 53 S.W.3d 697 (Tex.App.-Austin 2001, pet. ref'd) 13
Howard v. State, 972 S.W.2d 121 (Tex.App.–Austin 1998, no pet.) 11
Huizar v. State, 12 S.W.3d 479 (Tex.Crim.App.2000) 11
Jones v. State, 944 S.W.2d 642 (Tex.Crim.App.1996) 13
Medina v. State, 7 S.W.3d 633 (Tex.Crim.App.1999) 4, 8
iii
Mendoza v. State, 88 S.W.3d 236 (Tex.Crim.App.2002) 9
Moore v. State, 640 S.W.2d 300 (Tex.Crim.App. 1982) 14
Morgan v. State, 346 S.W.2d 116 (Tex. Crim.App.1961) 4
Oursbourn v. State, 259 S.W.3d 159 (Tex.Crim.App.2008) 9, 10, 11
Paredes v. State, 129 S.W.3d 530 (Tex.Crim.App.2004) 5, 7
Posey v. State, 966 S.W.2d 57(Tex.Crim.App.1998) 9, 11
Riggs v. State, 744 S.W.2d 140 (Tex.App.–Houston [1st Dist.] 1986) 6
Riggs v. State , 745 S.W.2d 1 (Tex.Crim.App.1988). 6
Santellan v. State, 939 S.W.2d 155 (Tex.Crim.App.1997) 13
Sells v. State, 121 S.W.3d 748 (Tex.Crim.App.2003) 13
Smith v. State, 721 S.W.2d 844 (Tex.Crim.App.1986) 4
Tolbert v. State, 306 S.W.3d 776 (Tex.Crim.App.2010) 11
Wesbrook v. State, 29 S.W.3d 103 (Tex.Crim.App.2000) 13
Williams v. State, 47 S.W.3d 626 (Tex.App.–Waco 2001, pet ref'd) 6
Zamora v. State 411 SW3d 504 (Tex.Crim.App. 2013) 2, 7, 8
Statutes
Tex.Code Crim. Proc. art. 36.14 9, 10
Tex.Code Crim. Proc. art. 38.14 2, 7
Tex. Penal Code § 7.02(a)(2) 4, 7
Tex. Penal Code § 7.02(b) 5, 7, 8
iv
Tex. Penal Code §§ 7.01 6
Authorities
George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice
and Procedure § 51:75 (3d ed.2012) 7
CITATIONS TO THE RECORD
Reporter’s Record: volume, page no.
(Rr #p #)
Clerk’s Record: volume, page no.
(Cr # p #)
v
STATEMENT OF THE CASE
The record begins on November 10th, 2014 with the arraignment of Joseph
Norwood, Jr., hereinafter referred to as Appellant, which took place after the
seating of the jury. Appellant, plead “not guilty” to Murder.
Trial testimony began November 12th and ended November 18th, 2014. The
Defense presented and rested its case on November 18th. The jury returned a
verdict finding the Appellant, “Guilty” of the Murder as stated in the indictment
on November 18th, 2014.
Punishment began and ended November 19th, 2014 with both sides presenting
punishment and character witnesses. On November 20th, 2014, the jury found
both enhancement paragraphs “true” and sentenced the Appellant eighty years
confinement in the Texas Department of Corrections – Institutional Division.
Appellant presents his direct appeal.
vi
STATEMENT OF FACTS.
In the early hours between January 25th and 26th of 2013, Galveston Patrol
Ofc. Ticas made the grisly discovery of Juan Navarro (hereinafter Decedent)
mortally injured laying in the parking lot of his own business, Navarro Bakery.(rr
3 p. 95) Lead Detective Sollenberger would eventually discover that the
Decedent was assaulted, knocked to the ground and run over by his own “Lexus”
vehicle. Bakery video surveillance did not film the outside parking lot but an
inside camera showed the blinking of the Lexus taillight through a window. Det.
Sollenberger established a timeline using videos from: a convenience store caddy
corner to the bakery, the Mercado Taco Shop across the street, the travel video of
a Galveston patrol unit passing the bakery and a Kroger grocery store. The Kroger
and convenience store videos allegedly showed the Appellant Joseph Norwood.
(rr. 6 pg. 49)
The “Lexus” was discovered three blocks away from the bakery and on the
same street of the residency of the State’s “star” witness Richard Lacey. RR 3 p.
176. Richard Lacey was called and interviewed by Detectives twice. Lacey
testified of Appellant picking him up in the Lexus, (rr. 4 p 107 & 108), driving to
Kroger with him to cash coins, and acting strangely. Appellant allegedly stated if
Lacey drove Lacey would, “….be looking at a penitentiary sentence”. (rr. 6 p.
vii
122). Despite blood being found on Lacey’s shoes and finger, (rr. 6 p. 122-130),
and video evidence supporting Lacey’s contact with the Appellant within minutes
of the murder of the Decedent, Lacey’s involvement or implication of him as an
accomplice to the Decedent’s murder was given token review by police.
Appellant contends that Lacey’s testimony, the detectives’ timeline and the
video surveillance, though shows Appellant’s possession of the Lexus, does not
show Appellant committing the murder.
viii
SUMMARY OF THE ARGUMENTS
Point of Error One (1): Testimony from and about Richard Lacey’s knowledge
and physical involvement of the instant case is sufficient to trigger the trial court
to Sua Sponte include an accomplice-witness instruction to the Jury charge.
Point of Error Two (2): Appellant contends that the evidence is factually
insufficient to prove murder.
1
APPELLANT'S POINT OF ERROR ONE
Testimony from and about Richard Lacey’s knowledge and physical
involvement of the instant case is sufficient to trigger the trial court to Sua
Sponte include an accomplice-witness instruction to the Jury charge.
Argument
Appellant relies upon Zamora v. State 411 SW3d 504 (Tex.Crim.App. 2013).
There, the Court held that the definition of an accomplice is broad enough to
encompass one who is liable as a co-conspirator party to an offense.
In the Appellant’s case: the physical evidence of; blood on Lacey’s shoe,
blood on Lacey’s finger, recovery of the vehicle on Lacey’s street, as well as
Lacey’s appearance in the Kroger video establishes Lacey as a party conspirator.
“[A] conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
committed[.]” Tex.Code Crim. Proc. art. 38.14; see Druery v. State, 225 S.W.3d
491, 498 (Tex.Crim.App.2007) Zamora at 510 and Blake v. State, 971 S.W.2d
451, 454 (Tex.Crim.App.1998). Because the rule requires corroboration of
accomplice-witness testimony before a conviction can stand, the jury must be
instructed accordingly, but the particular instruction that must be given depends on
the circumstances of each case.
Types of Accomplice–Witness Instructions
2
A proper accomplice-witness instruction informs the jury either that a
witness is an accomplice as a matter of law or that he is an accomplice as a matter
of fact. Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App.2006). The evidence
in each case will dictate the type of accomplice-witness instruction that needs to
be given, if any. Id.
A witness is an accomplice as a matter of law when the witness has been
charged with the same offense as the defendant or a lesser-included offense, or
“when the evidence clearly shows that the witness could have been so charged.”
Cocke, 201 S.W.3d at 747–48; Druery, 225 S.W.3d at 499. For accomplice
witnesses as a matter of law, the trial court affirmatively instructs the jury that the
witness is an accomplice and that his testimony must be corroborated. See Druery,
225 S.W.3d at 498–99.
In contrast, when the evidence presented by the parties as to the witness's
complicity is conflicting or inconclusive, then the accomplice-witness instruction
asks the jury to (1) decide whether the witness is an accomplice as a matter of fact,
and (2) apply the corroboration requirement, but only if it has first determined that
the witness is an accomplice. Id.
Regardless of whether it identifies an accomplice as a matter of law or as a
matter of fact, the jury instructions must also explain the definition of an
accomplice. The accomplice-witness statute does not define the term, the Texas
3
Court of Criminal Appeals describes an accomplice as someone who, under the
evidence, could have been charged with the same or lesser-included offense as that
with which the defendant was charged. Medina v. State, 7 S.W.3d 633, 641
(Tex.Crim.App.1999) (noting that defendant is “entitled to an accomplice-witness
instruction if and only if ‘there is sufficient evidence in the record to support a
charge against the witness alleged to be an accomplice’ ”) (citing Smith v. State,
721 S.W.2d 844, 851 (Tex.Crim.App.1986)); Blake, 971 S.W.2d at 454–55
(noting that Court has “repeatedly stated” that person is an accomplice “if he or
she could be prosecuted for the same offense as the defendant, or a lesser included
offense”); Morgan v. State, 171 Tex.Crim. 187, 346 S.W.2d 116, 118 (App.1961)
(describing test for determining whether witness should be deemed an accomplice
as “whether or not there is sufficient evidence in the record to support a charge
against” him).
In applying this broad definition, appellate courts have frequently tailored
the definition of an accomplice to the facts of particular cases, most of which
involve accomplice witnesses who are or may be direct parties to the offense. See
Tex. Penal Code § 7.02(a)(2) (describing law of parties for direct participant in
offense). Implicitly referring to a direct-party theory for accomplices, the Texas
Criminal Court of Appeals describes an accomplice as an individual who
“participates with a defendant before, during, or after the commission of the
4
crime,” “acts with the requisite culpable mental state,” and performs an
“affirmative act that promotes the commission of the offense with which the
defendant is charged.” Cocke, 201 S.W.3d at 748; see also Blake, 971 S.W.2d at
454 (describing Zamora at 511 accomplice as “a blameworthy participant”).
In contrast, there is only one occasion to specifically discuss an accomplice
as someone who is or may be a party to the offense as a co-conspirator. See Tex.
Penal Code § 7.02(b) (describing law of parties for co-conspirators).
In Paredes v. State, the trial court's instructions included an instruction on
the law of conspiracy under Penal Code § 7.02(b). “Appellant argues that [certain
named individuals] were accomplices under the meaning of Section 7.02(b) and
therefore, he was entitled to the charge on accomplice witnesses. Appellant does
not explain how this section would apply to [the named individuals]. To be
applicable, there would still need to be evidence that [the named individuals] were
conspirators in carrying out one felony when another felony was committed. There
is no evidence that the three conspired or attempted to carry out the murders.”
Paredes v. State, 129 S.W.3d 530, 538–39 (Tex.Crim.App.2004).
In Paredes, it was determined that the evidence should be examined under a
party-conspirator theory, but it did not fully explain why that theory applied.
Zamora, explains that the conspiracy theory of party liability applies in the
accomplice-witness context because:
5
(1) an accomplice is a person who may be charged with the same or lesser-
included offense as that with which the defendant is charged, and
(2) a person may be charged with an offense as a principal, a direct party, or
as a co-conspirator. See Tex. Penal Code §§ 7.01 (person is “criminally
responsible” for his own conduct or for “conduct of another for which he is
criminally responsible”); 7.02(a)(2) (describing criminal responsibility for direct
party); 7.02(b) (describing criminal responsibility for party as co-conspirator).
Several courts of appeals have adopted the view that testimony from a co-
conspirator triggers the requirement for an accomplice-witness instruction. See
Williams v. State, 47 S.W.3d 626, 630 (Tex.App.–Waco 2001, pet ref'd) (holding
that accomplice-witness instruction required because witness could have been
indicted for charged offense as co-conspirator); De La Rosa v. State, 919 S.W.2d
791, 794 (Tex.App.–San Antonio 1996, pet. ref'd) (same); Riggs v. State, 744
S.W.2d 140, 142 (Tex.App.–Houston [1st Dist.] 1986) (same), pet. dism'd,
improvidently granted, 745 S.W.2d 1 (Tex.Crim.App.1988).
In De La Rosa v. State, the court of appeals explained that co-conspirator
parties to an offense are accomplices for purposes of administering the
accomplice-witness rule:
[I]f the witness and the accused were co-conspirators in a conspiracy to commit a
felony other than the crime with which the accused is charged, the accused
6
committed the charged offense in furtherance of that conspiracy, and the charged
offense was one that should have been anticipated by the witness as a result of
carrying out the conspiracy, the witness is an accomplice. De La Rosa, 919
S.W.2d at 794.
The Zamora ruling quotes Professors Dix and Schmolesky’s view of the
interaction between the accomplice-witness rule and the law of parties:
[I]f the witness is associated with the commission of the crime by the accused in
any of the ways described in section 7.02, the witness is criminally responsible for
the conduct ... and thus is a party and an accomplice witness. If, for (Zamora at
512) example, the evidence shows that the witness “solicit[ed], encourage[d],
direct[ed], aid[ed], or attempt[ed] to aid” the accused ... and the witness acted
“with intent to promote or assist the commission of the offense,” the witness is
responsible for the accused's conduct and is an accomplice witness. The same is
the case if the witness and the accused were co-conspirators in a conspiracy to
commit a felony other than the crime with which the accused is charged, the
accused committed the charged offense in furtherance of that conspiracy, and the
charged offense was one that should have been anticipated by the witness as a
result of carrying out the conspiracy.
See 43A George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal
Practice and Procedure § 51:75 (3d ed.2012).
7
Having already applied the party-conspirator theory as a basis to decide
whether an accomplice-witness instruction was required in Paredes, The Texas
Criminal Court of Appeals agrees with those courts of appeals that have held that
an accomplice-witness instruction is required when the evidence raises the
question of whether a witness is an accomplice under a party-conspirator theory.
See Tex.Code Crim. Proc. art. 38.14; Tex. Penal Code § 7.02(b); Paredes, 129
S.W.3d at 538–39.
B. Application of Almanza to Accomplice–Witness Instructions
Almanza applies to accomplice-witness instructions, both as a matter of law
and as a matter of fact, based on evidence that the witness was a direct party to the
offense. Casanova v. State, 383 S.W.3d 530, 533 (Tex.Crim.App.2012) (matter of
law); Herron v. State, 86 S.W.3d 621, 631–32 (Tex.Crim.App.2002) (matter of
law); Medina, 7 S.W.3d at 642 (matter of fact).
The narrow question is whether the rule of Almanza should be different or
inapplicable when it is alleged that a witness is an accomplice as a party to a
conspiracy, as compared to a direct party. Almanza concludes that all complaints
about the trial court's failure to include an accomplice witness instruction must be
analyzed under its procedural framework. Zamora at 513 and 514.
1. Almanza, Generally
8
Under Almanza, a trial court must submit a charge setting forth the law
“ ‘applicable to the case,’ ” which imposes a duty on trial courts to sua sponte
instruct the jury on these matters. Posey v. State, 966 S.W.2d 57, 62
(Tex.Crim.App.1998); Almanza, 686 S.W.2d at 160–74. The framework in
Almanza “is not a court-made rule; it is based on this Court's interpretation of [the
Texas Code of Criminal Procedure],” and its statutory predecessors. Posey, 966
S.W.2d at 60; see Tex.Code Crim. Proc. art. 36.14 (“[J]udge shall ... deliver to the
jury ... a written charge distinctly setting forth the law applicable to the case”).
Almanza applies when “a rule or statute requires an instruction under the
particular circumstances,” and includes errors of commission and omission.
Oursbourn v. State, 259 S.W.3d 159, 180 (Tex.Crim.App.2008) (emphasis in
original). Almanza, however, does not apply to defensive issues, which may be
forfeited if not preserved at trial. See Posey, 966 S.W.2d at 60–61; Mendoza v.
State, 88 S.W.3d 236, 239 (Tex.Crim.App.2002). Defensive issues are those “on
which instructions are not mandated by any statute.” Oursbourn, 259 S.W.3d at
179. They involve strategic decisions and tactics generally left to the lawyer and
the client. Posey, 966 S.W.2d at 63; Delgado v. State, 235 S.W.3d 244, 249
(Tex.Crim.App.2007).
2. Accomplice–Witness Instruction is Law Applicable to the Case
9
An examination of the plain language in the accomplice-witness statute
reveals that it is, in all its variations, the law applicable to the case rather than a
defensive issue. The accomplice-witness statute states,
“A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
committed; and the corroboration is not sufficient if it merely shows the
commission of the offense.”
Tex.Code Crim. Proc. art. 38.14.
The statute's plain meaning disallows any conviction based upon
uncorroborated testimony of an accomplice. Oursbourn, 259 S.W.3d at 180. The
statute is not worded conditionally upon a defendant's proper objection or request
for an instruction. See Tex.Code Crim. Proc. art. 38.14. The statute sets out an
“implicit ‘If-then’ proposition: If the evidence raises an issue of [the witness's
status as an accomplice], then the trial court shall instruct the jury [regarding the
corroboration requirement].” Oursbourn, 259 S.W.3d at 180 (generally discussing
group of statutes, including accomplice-witness statute, that “require an instruction
under the particular circumstances” and, therefore, constitute “law applicable to
the case”). In light of the plain language that a conviction cannot be had on the
testimony of an accomplice unless it is corroborated, an instruction on the
accomplice-witness rule is like those instructions that this Court has held to be the
10
law applicable to the case. Compare Huizar v. State, 12 S.W.3d 479, 484
(Tex.Crim.App.2000) (holding that trial court has sua sponte duty to instruct
based on statutory provision requiring proof of extraneous-offense evidence
“beyond a reasonable doubt”); Oursbourn, 259 S.W.3d at 180–81 (holding that
trial court has sua sponte duty to instruct based on statutory requirements
governing admissibility of defendant's out-of-court statements).
The accomplice-witness rule cannot be reasonably categorized as a
defensive issue that a defense attorney might forego as a matter of strategy.
Zamora at 514. Compare Posey, 966 S.W.2d at 61–62 (mistake-of-fact instruction
matter of strategy); Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999)
(same); Tolbert v. State, 306 S.W.3d 776, 781 (Tex.Crim.App.2010) (lesser-
included-offense instruction is matter of strategy to pursue outright acquittal);
Delgado, 235 S.W.3d at 250 (limiting instruction is matter of strategy to minimize
jury's recollection of unfavorable evidence). Those courts observed that it is
difficult to envision that any competent attorney would reasonably forego an
accomplice-witness jury instruction as a matter of strategy based on his theory of
the case. See Freeman v. State, 352 S.W.3d 77, 82 (Tex.App.–Houston [14th
Dist.] 2011, pet. ref'd); Howard v. State, 972 S.W.2d 121, 126 (Tex.App.–Austin
1998, no pet.). This is especially true in light of the legislative determination to
disallow a conviction on the uncorroborated testimony of an accomplice based on
11
concern that such witnesses may have incentives to lie or shift blame, and this
concern is equally applicable whether the witness is alleged to be a direct party or
a party to the offense as a co-conspirator. See Blake, 971 S.W.2d at 454 (observing
that rule reflects legislative determination to view accomplice testimony with
caution because accomplices often have incentives to lie to avoid punishment or
shift blame).
CONCLUSION
Appellant in the instant case argues that the record is rife in the testimony of
Det. Sollenger and Richard Lacey that the Trial Court had more than adequate
evidence to sua sponte include an accomplice-witness instruction for the Jury to
ponder the credibility and reliability of Richard Lacey.
12
APPELLANT'S POINT OF ERROR TWO
Appellant contends that the evidence is factually insufficient to prove murder.
Argument
A factual sufficiency review begins with a presumption that the evidence is
legally sufficient to sustain the conviction. Clewis v. State, 922 S.W.2d 126, 134
(Tex.Crim.App.1996). However, in a factual sufficiency analysis, all the evidence
is viewed without the prism of “in the light most favorable to the prosecution as in
a legal sufficiency challenge.” Id. at 129; Hitt v. State, 53 S.W.3d 697, 709
(Tex.App.-Austin 2001, pet. ref'd). A reviewing court must consider all the
evidence in a neutral light, impartially comparing evidence that tends to prove the
existence of a disputed fact or facts with evidence that tends to disprove that fact
or facts. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997); Jones
v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996). Deference is given to the
jury verdict, as well as the determination involving the credibility and demeanor of
the witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997).
A reviewing court must avoid substituting its own judgment for that of a
fact finder. Sells v. State, 121 S.W.3d 748, 758 (Tex.Crim.App.2003); Wesbrook v.
State, 29 S.W.3d 103, 112 (Tex.Crim.App.2000). Early on, it was felt that a jury
verdict is to be set aside “only if it is so contrary to the overwhelming weight of
13
the evidence as to be clearly wrong and unjust.” Cain, 958 S.W.2d at 410; Clewis,
922 S.W.2d at 129.
CONCLUSION
In the instant case Appellant challenges the factual sufficiency of the
elements of the offense on appeal. Appellant contends that his driving of the
Decedent’s vehicle was not sufficient to prove murder or to place him at the scene
of the Decedent’s death.
Simply put, proof amounting to mere suspicion of the guilt is insufficient to
sustain conviction, Moore v. State, 640 S.W.2d 300, 302 (Tex.Crim. App. 1982).
PRAYER
WHEREFORE, should the Honorable Court of Appeals find error in the
record on appeal, Appellant prays the Court reverse and remand this cause for new
trial, remand for new trial on punishment or, in the alternative, reverse and render
with instruction to enter a judgment of acquittal.
CERTIFICATE OF COMPLIANCE
I hereby certify pursuant to TRAP 9.4(i) that the preceding document
contains 3,812 words as determined by the word count of the computer program
used to prepare this document.
14
/s/ Zachary S. Maloney
Zachary S. Maloney
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Appellant’s Original Brief has
been sent to the Galveston County District Attorney’s Office, Appeal Division, on
this the 8th day of June, 2015.
__/S/ Zachary S. Maloney
ZACHARY MALONEY
15