ACCEPTED
13-14-00537-CR
THIRTEENTH COURT OF APPEALS
FILED CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS 3/24/2015 2:50:29 PM
CORPUS CHRISTI DORIAN RAMIREZ
CLERK
3/24/15
NO. 13-14-00537-CR
DORIAN E. RAMIREZ, CLERK
BY DTello
IN THE RECEIVED IN
THIRTEENTH COURT OF APPEALS
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
OF TEXAS 3/24/2015 2:50:29 PM
DORIAN E. RAMIREZ
Clerk
ALLEN RAY INCE,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
_____________________________________________________________
APPEAL OF CAUSE NO. A-12-5022-CR FROM THE
DISTRICT COURT OF ARANSAS COUNTY, TEXAS
_____________________________________________________________
FIRST AMENDED BRIEF OF APPELLANT
_____________________________________________________________
JOEL H. THOMAS
Attorney At Law
State Bar No. 00797547
P.O. Box 1141
Sinton, Texas 78387
(361) 364-5525
(361) 364-5625 (Fax)
Attorney for Appellant
INDEX
Page
INDEX .....................................................……………. 2
LIST OF ALL PARTIES .......................................…… 3
LIST OF AUTHORITIES .......................................….. 4
STATEMENT OF THE CASE ..................................... 5
STATEMENT OF FACTS ..................................... 6
SUMMARY OF THE ARGUMENT ........................... 7
POINT OF ERROR NO. 1
ARGUMENT AND AUTHORITIES ............................ 7
POINT OF ERROR NO. 2
ARGUMENT AND AUTHORITIES ............................ 12
PRAYER FOR RELIEF .........................................…... 13
CERTIFICATE OF COMPLIANCE …………………. 13
CERTIFICATE OF SERVICE ...................................... 14
2
LIST OF NAMES OF ALL PARTIES
Pursuant to Rule 38.1 (a) of the Texas Rules of Appellate Procedure, a
complete list of the names of all parties to this appeal is as follows:
ALLEN RAY INCE Appellant
TDCJ# 01954192
Clarence N. Stevenson Unit
1525 FM 766,
Cuero, TX 77954
THE STATE OF TEXAS Appellee
Honorable Mike Welborn
District Attorney
Aransas County
Sinton, Texas 78387
LIST OF NAMES OF ATTORNEYS FOR ALL PARTIES
JOEL H. THOMAS Attorney for Appellant
Post Office Box 1141 ALLEN RAY INCE
Sinton, Texas 78387
Mike Welborn Attorney for Appellee
District Attorney THE STATE OF TEXAS
District Attorney
Aransas County
Sinton, Texas 78387
3
LIST OF AUTHORITIES
Cases: Page
Jackson v. Virginia, 443 U.S. 307, 319 (1979) 7
Escamilla v. State, 143 S.W.3d 814, 817
(Tex. Crim. App. 2004) 7
Malik v. State, 953 S.W.2d 234, 240 Tex. Crim. App. 1997) 7
Adi v. State, 94 S.W.3d 124, 131 (Tex. App.
Corpus Christi 2002, pet. ref'd) 7
Kitchens v. State, 823 S.W.2d 256, 258
(Tex. Crim. App. 1991) (en banc) 8
Dues v. State, 634 S.W.2d 304, 305 (Tex.Cr.App.1982) 8
Womble v. State, 618 S.W.2d 59, 64 (Tex.Cr.App.1981) 8
Cordova v. State, 698 S.W.2d 107, 112 (Tex.Cr.App.1985),
cert. denied, 476 U.S. 1101, 106 S.Ct. 1942,
90 L.Ed.2d 352 (1986) 8
Saxton v. State, 804 S.W.2d 910, 913 (Tex.Cr.App.1991) 10
Watson v. State, 204 S.W.3d 404, 414-15
(Tex. Crim. App. 2006) 11
Santellan v. State, 939 S.W.2d 155, 164
(Tex. Crim. App. 1997) (en banc) 11
TEX. CODE CRIM. PROC. ANN. ART. 37.07, 1(a) 8
TEX. PEN. CODE ANN. §22.02(a)(2) 8
TEX.PEN.CODE ANN. § 9.31(a) 8
TEX.PEN.CODE ANN. § 9.01(3) 9
TEX. PEN.CODE § 9.32(a)(1), (2)(A) 9
4
NO. 13-14-00537-CR
IN THE
THIRTEENTH COURT OF APPEALS
OF TEXAS
ALLEN RAY INCE,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
BRIEF OF APPELLANT
TO THE HONORABLE COURT OF APPEALS, THIRTEENTH
SUPREME JUDICIAL DISTRICT OF TEXAS:
Now comes ALLEN RAY INCE, hereinafter referred to as
Appellant, and submits this brief pursuant to the provisions of Article 44.02
of the Code of Criminal Procedure and the provisions of Rule 9 and Rule 38
of the Texas Rules of Appellate Procedure in support of his appeal in Cause
No. A-12-5022-CR from the District Court of Aransas County.
STATEMENT OF THE CASE
Appellant was charged by indictment with the offense of Aggravated
Assault, by causing serious bodily injury to Artavias Edwards by cutting him
5
with a deadly weapon, a knife. Following a jury trial, Appellant was found
guilty. Appellant was assessed a sentence of fifteen (15) years incarceration
by the Honorable Starr Bauer, Judge of the 36th District Court. Appellant
timely filed his notice of appeal.
STATEMENT OF FACTS
The State relied on the testimony of the victim, Artavias Edwards,
three eye witnesses, Virginia Gonzales, Aurora Gonzales, and Ofelia
Martinez; and Police Officers Mario Gracia and Steven Reyes. Appellant
testified on his own behalf.
Appellant was sitting in a laundromat in Rockport, Texas, when
Edwards and the Gonzales’ girls arrived. The girls were the daughters of a
woman Edwards was dating at the time. Ofelia Martinez was also in the
laundromat when Edwards and the girls arrived. The testimony of each
witness differed on the specifics of what happened next, but it appears from
the testimony that Appellant spoke with Virginia Gonzales, which Edwards
disagreed with, and Edwards “invited” Appellant to step outside the
laundromat to settle the issue. The testimony again differs on what
happened outside the laundromat, but Appellant had a knife and during a
brief fight with Edwards, cut Edwards three times, with one injury being a
serious wound to Edwards’ chest/abdomen. Appellant testified that Edwards
6
threatened to kill him with a gun he had in his car, which was parked
immediately outside of the laundromat, in the general area where the fight
took place. Appellant testified he believed Edwards had a gun, and was
doing what he could to keep Edwards away from the car because Appellant
believed that Edwards did in fact have a gun, and would in fact shoot him.
The jury was instructed on self-defense, but convicted Appellant for the
indicted offense of Aggravated Assault.
SUMMARY OF THE ARGUMENT
Appellant argues that the evidence at trial was legally and factually
insufficient to support the jury’s determination of his guilt, based upon
Appellant’s reasonable belief that the victim in this case was armed and had
threatened to kill Appellant. Appellant reasonably acted in self-defense.
POINT OF ERROR NO. 1
THE EVIDENCE AT TRIAL IS LEGALLY INSUFFICIENT TO
SUPPORT THE JUDGMENT OF GUILTY
ARGUMENT AND AUTHORITIES
A legal sufficiency challenge requires the Appellate Court to review
the relevant evidence in the light most favorable to the verdict to determine
7
whether a rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).
The sufficiency of the evidence is measured against the elements of the
offense as defined by a hypothetically correct jury charge for the case. Malik
v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94
S.W.3d 124, 131 (Tex. App. Corpus Christi 2002, pet. ref'd). The conviction
will be upheld if the evidence is sufficient to support a finding of guilt under
any one of the theories submitted. TEX. CODE CRIM. PROC. ANN.
ART. 37.07, ' 1(a) (verdict must be general); Kitchens v. State, 823 S.W.2d
256, 258 (Tex. Crim. App. 1991) (en banc).
A person commits aggravated assault if the person intentionally or
knowingly threatens another with imminent bodily injury, and uses or
exhibits a deadly weapon during the commission of the assault.
TEX.PEN.CODE ANN. § 22.02(A)(2).
In regards to self-defense, a person is justified in using force against
another person "when and to the degree" that the person "reasonably
believes the force is immediately necessary" for protection against that other
person's use or attempted use of unlawful force. TEX.PEN.CODE ANN. §
9.31(a). Intent can be inferred from acts, words, and conduct of the accused.
8
Dues v. State, 634 S.W.2d 304, 305 (Tex.Cr.App.1982). The accused's
intent may also be ascertained from the methods used and the wounds
inflicted, Womble v. State, 618 S.W.2d 59, 64 (Tex.Cr.App.1981), as well as
from circumstances surrounding the use of a weapon. Cordova v. State, 698
S.W.2d 107, 112 (Tex.Cr.App.1985), cert. denied, 476 U.S. 1101, 106 S.Ct.
1942, 90 L.Ed.2d 352 (1986). The Penal Code justification for self-defense
focuses on the existence of some necessity, the circumstances under which
the force was used, the degree of force used, and the type of conduct against
which the force was used. The amount of force used must be in proportion to
the force encountered. Special rules govern the use of deadly force in self-
defense. Deadly force means force that is intended or known by the actor to
cause death or serious bodily injury, or force that is capable of causing death
or serious bodily injury in the manner of its use or intended use.
TEX.PEN.CODE ANN. § 9.01(3).
Penal Code Section 9.31(a) justifies the use of force "when and to the
degree the actor reasonably believes the force is immediately necessary to
protect the actor against the other's use or attempted use of unlawful force."
Section 9.32 justifies the use of deadly force "if the actor would be justified
in using force against the other under Section 9.31; and when and to the
degree the actor reasonably believes the deadly force is immediately
9
necessary to protect the actor against the other's use or attempted use of
unlawful deadly force." TEX. PEN.CODE § 9.32(a)(1), (2)(A). Section
9.01 defines "deadly force" as "force that is intended or known by the actor
to cause, or in the manner of its use or intended use is capable of causing,
death or serious bodily injury." PEN.CODE § 9.01(3).
The defendant has the initial burden of producing some evidence to
justify submission of a self-defense instruction. The State must then
persuade the jury beyond a reasonable doubt that the defendant did not act in
self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Cr.App.1991).
Although the State has the burden of persuasion, it does not have the burden
of producing evidence to affirmatively refute self-defense. Id.
Appellant testified that he was attacked by Edwards as soon as he
walked out of the laundromat, and that Edwards told him he had a gun and
would kill Appellant with it. No gun was found, but police officers did
search Edwards’ vehicle when Appellant told the officers of Edwards’
threat. Appellant testified that he used his knife to try and keep Edwards
away from the vehicle so that Edwards could not get to the gun. Edwards’
injuries were consistent with Appellant’s testimony; wounds on Edwards
chest following Edwards’ lunge at Appellant, and cuts to Edwards’ arms
following Edwards’ attempted strikes at Appellant. Appellant testified when
10
Edwards lunged at him, Appellant pointed the knife at him, and Edwards ran
into the blade. Appellant testified that he continued to waive the knife back
and forth in front of him to hold Edwards at by, and that Edwards got cut
when he attempted to hit Appellant. The witnesses testified that Edwards
was running around in the street next to the laundromat, but never fled the
scene, continuing to try and get back to the vehicle that Appellant was
guarding. The State argued that Edwards could not leave the girls there with
Appellant, but one of the girls testified she tried to take the knife away from
Appellant, but he completely ignored her and continued to focus on
preventing Edwards from retrieving a gun from the car. Additionally, none
of Edwards’ injuries were located on his back, where Appellant would have
had to stab him if Appellant was pursuing Edwards as he ran away from
Appellant. Based on Edwards’ actions, a reasonable person could believe
that Appellant used deadly force against Edwards because Appellant
believed it was immediately necessary to protect himself from Edwards’
attempted use of deadly force against him, which is what the law requires to
raise the issue of self-defense.
11
POINT OF ERROR NO. 2
THE EVIDENCE AT TRIAL IS FACTUALLY INSUFFICIENT TO
SUPPORT THE JUDGMENT OF GUILTY
ARGUMENT AND AUTHORITIES
In a factual sufficiency review, the Court reviews the evidence in a
neutral light to determine whether the evidence is so weak that the jury's
verdict seems clearly wrong and manifestly unjust. Watson v. State, 204
S.W.3d 404, 414-15 (Tex. Crim. App. 2006). After considering all of the
evidence in the record related to appellant's sufficiency challenge, the Court
compares the evidence weighed by the jury that tends to prove the elemental
fact in dispute with the evidence that tends to disprove it. Santellan v. State,
939 S.W.2d 155, 164 (Tex. Crim. App. 1997) (en banc). The Court will not
reverse the jury's verdict unless it can say with some objective basis in the
record that the great weight and preponderance of the evidence contradicts
the verdict. Watson, 204 S.W.3d at 415.
Relying on the same argument from above, the evidence produced at
trial does not support the jury’s finding of guilt beyond a reasonable doubt.
12
PRAYER FOR RELIEF
For the reason herein alleged, Appellant prays that this Court overturn
the judgment against him and that the judgment be reformed to show an
acquittal. Appellant further prays that he be immediately discharged from
any further confinement under said judgment.
Respectfully submitted,
/s/ Joel H. Thomas
JOEL H. THOMAS
Attorney At Law
State Bar No. 00797547
408 West Market Street
Post Office Box 1141
Sinton, Texas 78387
(361) 364-5525
(361) 364-5625 Fax
Attorney for Appellant
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with the type-volume limitations of 5TH CIR. R.
32.2.7(b).
1. This brief contains 2254 words printed in a proportionally spaced
typeface.
13
2. This brief is printed in a proportionally spaced, serif typeface using
Times New Roman 14 point font in text and Times New Roman 12 point
font in footnotes produced by Microsoft Word software.
3. Upon request, undersigned counsel will provide an electronic version
of this brief and/or a copy of the word printout to the Court.
/s/ Joel H. Thomas
Joel H. Thomas
CERTIFICATE OF SERVICE
I certify that a copy of this Amended Brief of Appellant has been
delivered to the District Attorney of Aransas County, Texas, the Honorable
Mike Welborn, Sinton, Texas, on the 24th day of March, 2015.
/s/ Joel H. Thomas______
JOEL H. THOMAS
14
Allen Ray Ince v. State
Combined Opinion