ACCEPTED
12-15-00001-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
9/4/2015 11:47:15 PM
Pam Estes
CLERK
NUMBER 12-15-00001-CR
IN THE TWELFTH DISTRICT COURT OF APPEALS FILED IN
12th COURT OF APPEALS
TYLER, TEXAS TYLER, TEXAS
9/4/2015 11:47:15 PM
PAM ESTES
Clerk
OSCAR PERKINS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 114th District Court of Smith County, Texas
Trial Cause Number 114-1209-14
STATE’S BRIEF
ORAL ARGUMENT NOT REQUESTED
D. MATT BINGHAM
Criminal District Attorney
Smith County, Texas
AARON REDIKER
Assistant District Attorney
State Bar of Texas Number 24046692
Smith County Courthouse, 4th Floor
Tyler, Texas 75702
Phone: (903) 590-1720
Fax: (903) 590-1719
Email: arediker@smith-county.com
TABLE OF CONTENTS
Index of Authorities ............................................................................................................ 2
Statement of Facts............................................................................................................... 3
Summary of Argument....................................................................................................... 4
I.ISSUES ONE AND TWO: As the testimony of the victim was legally sufficient to prove
that appellant assaulted his wife by choking her, the trial court properly denied his
motion for an instructed verdict. ..................................................................................... 5
Standard of Review ............................................................................................................. 5
Argument.............................................................................................................................. 6
II.ISSUE THREE: As the offense contained in the requested instruction was not a
lesser-included offense of the charged offense, and appellant did not present
affirmative evidence rebutting or negating an element of the charged offense of
assault—family violence by choking, the trial court properly refused an instruction
on misdemeanor assault. ................................................................................................... 9
Standard of Review ............................................................................................................. 9
Argument............................................................................................................................ 10
Certificate of Compliance ................................................................................................ 14
Certificate of Service ........................................................................................................ 14
1
INDEX OF AUTHORITIES
Texas Cases
Aguilar v. State, 468 S.W.2d 75 (Tex. Crim. App. 1971) .................................................... 8
Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) ................................................... 11
Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997) ....................................................... 9
Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012)................................................ 11
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ................................................... 6
Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001) ................................................. 9
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) ...................................................... 10
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ....................................................... 6
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .................................................... 5
Lofton v. State, 45 S.W.3d 649 (Tex. Crim. App. 2001) .................................................... 12
Madden v. State, 799 S.W.2d 683 (Tex. Crim. App. 1990) ................................................. 5
Price v. State, 457 S.W.3d 437 (Tex. Crim. App. 2015) ...................................................... 7
Williams v. State, 692 S.W.2d 671 (Tex. Crim. App. 1984) ................................................ 8
Wortham v. State, 412 S.W.3d 552 (Tex. Crim. App. 2013) ............................................. 10
Texas Statutes
Tex. Code Crim. Proc. Ann. art. 36.14 ............................................................................... 9
Tex. Penal Code Ann. § 22.01 ....................................................................................... 7, 11
Federal Cases
Jackson v. Virginia, 443 U.S. 307 (1979) .............................................................................. 5
2
NUMBER 12-15-00001-CR
IN THE TWELFTH DISTRICT COURT OF APPEALS
TYLER, TEXAS
OSCAR PERKINS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 114th District Court of Smith County, Texas
Trial Cause Number 114-1209-14
STATE’S BRIEF
TO THE HONORABLE COURT OF APPEALS:
Comes now the State of Texas, by and through the undersigned Assistant
Criminal District Attorney, respectfully requesting that this Court overrule
appellant’s alleged issues and affirm the judgment of the trial court in the above-
captioned cause.
STATEMENT OF FACTS
Appellant has stated the essential nature of the proceedings and the
evidence presented at trial with one important exception (Appellant's Br. 4): Mrs.
3
Perkins, appellant’s wife and the victim of his assault, did not testify “she could
still breathe” while appellant choked her (VII Rep.’s R. at 37-39). In the interest of
judicial economy, any other facts not mentioned therein that may be relevant to
the disposition of appellant's issues will be discussed in the State's arguments in
response.
SUMMARY OF ARGUMENT
The jury, as the sole judge of the weight and credibility of the witnesses, was
free to believe the victim’s testimony that she could not breathe when appellant
placed her in a chokehold. Furthermore, appellant has not pointed to any
affirmative evidence in the record directly germane to the lesser included offense
of misdemeanor assault or that refutes or negates the other evidence establishing
the greater offense.
4
I. ISSUES ONE AND TWO: As the testimony of the victim was legally sufficient to prove
that appellant assaulted his wife by choking her, the trial court properly denied his
motion for an instructed verdict.
STANDARD OF REVIEW
Articulating the standard of review for legal sufficiency in Jackson v. Virginia, 443
U.S. 307, 319 (1979), the Supreme Court stated that, "the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." “A challenge to the trial judge's ruling on a motion
for an instructed verdict is in actuality a challenge to the sufficiency of the
evidence to support the conviction.” Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim.
App. 1990). When conducting a legal sufficiency review, a reviewing court must
ask whether any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt, and not whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt. Laster v. State,
275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The same standard applies equally to
circumstantial and direct evidence. Id. When examining the evidence for legal
5
sufficiency, a reviewing court’s role is not to become a “thirteenth juror”, and it
may not “re-evaluate the weight and credibility of the record evidence” and
thereby substitute its judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735,
740 (Tex. Crim. App. 1999). Thus, “[t]he reviewing court must give deference to
the responsibility of the trier of fact to fairly resolve conflicts in testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443
U.S. at 318-19) (internal quotation marks omitted).
ARGUMENT
In his first and second issues, appellant argues that the evidence showing he
intentionally, knowingly, or recklessly impeded the normal breathing or
circulation of the blood of his wife by applying pressure to her throat or neck was
legally insufficient, and the trial court thus erred by failing to grant his motion for
an instructed verdict (Appellant’s Br. 6-10; Clerk’s R. at 8). A person commits the
offense of assault—family violence by choking if: “(1) the accused intentionally,
knowingly, or recklessly causes bodily injury to another; (2) the victim was a
6
person described in certain sections of the Family Code; and (3) the offense was
committed by intentionally, knowingly, or recklessly impeding the normal
breathing or circulation of the blood of the person by applying pressure to the
person's throat or neck or by blocking the person's nose or mouth.” Price v. State,
457 S.W.3d 437, 442 (Tex. Crim. App. 2015) (internal quotation marks omitted). See
Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(B) (West 2014). Mrs. Perkins, the sole
eyewitness and victim of the charged offense, testified at trial that the assault
occurred following a disagreement with appellant over the phone regarding the
division of an insurance claim settlement check (VII Rep.’s R. at 30). After arriving
at her home, appellant told her that he was going to kill her, struck her several
times with a pillow, punched her in the head twice, and then put Mrs. Perkins in a
chokehold from behind, squeezing her neck between his forearm and bicep while
placing his other forearm on the back of her neck (Id. at 32, 34-39). Mrs. Perkins
then fell on her knees because she could not breathe, and appellant eventually
released her (Id. at 38-39, 59). Sergeant Flores, the Lindale police officer who
arrived on the scene after Mrs. Perkins called 911, observed redness, swelling, and
7
bruising around her neck and an indentation from one of Mrs. Perkins’s earrings
being pushed into the skin (Id. at 156-58, 160). Moreover, Dr. Weber, the emergency
room physician who later treated Mrs. Perkins that day, testified that a CT scan of
her neck showed a straightening of the spine consistent with muscle spasms,
which could have been caused by trauma to the neck through being choked (Id. at
109-11).
Nevertheless, appellant argues that the only evidence of choking came from
Mrs. Perkins, whose credibility was called into question by, among other things,
her contradictory statements about attempting to file an affidavit of non-
prosecution (Appellant’s Br. 8). However, an eyewitness’s testimony alone may be
sufficient to support a jury’s verdict. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim.
App. 1971). “The trier of fact is the sole judge of the weight and credibility of the
witnesses and may believe or disbelieve all or any part of any witness' testimony.”
Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). “What weight to give
contradictory testimonial evidence is within the sole province of the jury, because
it turns on an evaluation of credibility and demeanor.” Cain v. State, 958 S.W.2d 404,
8
408-409 (Tex. Crim. App. 1997). Considering its verdict of guilty, the jury obviously
believed Mrs. Perkins’s account of the assault and resolved any inconsistencies
against appellant, as it was within the sole province of the jury to do. See id. When
viewed in the light most favorable to the prosecution, Mrs. Perkins’s testimony
that she could not breathe when appellant applied pressure to her neck was legally
sufficient to support the jury’s verdict. See Goodman v. State, 66 S.W.3d 283, 286 (Tex.
Crim. App. 2001) (“Direct evidence of ‘X’ fact is always legally sufficient to support
a finding of ‘X’ fact.”). Appellant’s first and second issues are therefore without
merit and should be overruled.
II. Issue Three: As the offense contained in the requested instruction was not a
lesser included offense of the charged offense, and appellant did not present
affirmative evidence rebutting or negating an element of the charged offense of
assault—family violence by choking, the trial court properly refused an instruction
on misdemeanor assault.
STANDARD OF REVIEW
“[T]he judge shall, before the argument begins, deliver to the jury, except in
pleas of guilty, where a jury has been waived, a written charge distinctly setting
forth the law applicable to the case . . .” Tex. Code Crim. Proc. Ann. art. 36.14 (West
9
2014). In Hall v. State, the Court of Criminal Appeals “sets forth the two-part
analysis used to determine whether a defendant is entitled to a jury instruction on
a lesser-included offense.” Wortham v. State, 412 S.W.3d 552, 554 (Tex. Crim. App.
2013) (citing Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007)). “Using the
‘cognate pleadings’ approach, an appellate court must first consider whether the
offense contained in the requested instruction is a lesser-included offense of the
charged offense. If it is, the court must then determine whether the evidence
admitted at trial supports the instruction.” Id. (footnote omitted). Under the
second part of the analysis, “anything more than a scintilla of evidence may be
sufficient to entitle a defendant to a lesser charge. In other words, the evidence
must establish the lesser-included offense as a valid, rational alternative to the
charged offense.” Hall, 225 S.W.3d at 536.
ARGUMENT
In his third issue, appellant argues that the trial court erred in refusing to
instruct the jury on the offense of misdemeanor assault as a lesser-included
offense of assault—family violence by choking (Appellant’s Br. 11-14). See Tex.
10
Penal Code Ann. § 22.01(a)(1), (b)(2)(B) (West 2014). As the Court of Criminal
Appeals explained in Cavazos v. State:
[A]nything more than a scintilla of evidence may be sufficient to entitle a
defendant to a charge on a lesser offense. . . . If the evidence raised at trial
casts doubt on the greater offense, a lesser-included offense instruction
allows the jury to vote for a rational alternative. While it is true that the
evidence may be weak or contradicted, the evidence must still be directly
germane to the lesser-included offense and must rise to a level that a
rational jury could find that if Appellant is guilty, he is guilty only of the
lesser-included offense. Meeting this threshold requires more than mere
speculation—it requires affirmative evidence that both raises the lesser-
included offense and rebuts or negates an element of the greater offense.
Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012) (citations omitted). “[I]t
is not enough that the jury may disbelieve crucial evidence pertaining to the
greater offense 1 ; there must be some evidence directly germane to a lesser
included offense for the factfinder to consider before an instruction on a lesser
included offense is warranted.” Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App.
1994). “A defendant’s own testimony that he committed no offense, or testimony
1
At the charge conference, appellant’s trial counsel justified his request for the lesser included
offense instruction by stating, “[t]he jury could very well believe that Mr. Perkins hit her in the
head but did not choke her.” (VIII Rep.’s R. at 137).
11
which otherwise shows that no offense occurred at all, is not adequate to raise the
issue of a lesser-included offense.” Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim.
App. 2001). Under the first part of the Hall analysis, misdemeanor assault causing
bodily injury by striking with a closed fist is not a lesser included offense of
assault—family violence by choking as charged in the indictment because the
required injury is “normal breathing or circulation of the blood has been impeded.”
Price, 457 S.W.3d at 443. Secondly, appellant challenges the trial court’s denial of
the instruction under the second part of the Hall analysis, arguing that: “Dr. Weber
testified that while [Mrs. Perkins’s] complaints could have been caused by choking,
they also could have been caused in other ways.” (Appellant’s Br. 13). Other than
this mere speculation, however, appellant has not pointed to any evidence in the
record rising to the level of convincing a rational jury that, if he is guilty, he is
guilty only of misdemeanor assault (Appellant’s Br. 11-13). See Cavazos, 382 S.W.3d
at 385; Hooper, 214 S.W.3d at 16 (“Speculation is mere theorizing or guessing about
the possible meaning of facts and evidence presented.”). As appellant has not
shown any affirmative evidence directly germane to the lesser included offense of
12
misdemeanor assault or that refutes or negates the other evidence establishing the
greater offense, his third issue is without merit and should be overruled.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court
overrule appellant’s alleged issues and affirm the judgment of the 114th District
Court of Smith County, Texas, in the above-captioned cause.
Respectfully submitted,
D. MATT BINGHAM
Criminal District Attorney
Smith County, Texas
/s/ Aaron Rediker
Aaron Rediker
Assistant District Attorney
SBOT #: 24046692
100 North Broadway, 4th Floor
Tyler, Texas 75702
Office: (903) 590-1720
Fax: (903) 590-1719 (fax)
arediker@smith-county.com
13
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned
attorney certifies that the word count for this document is 1,959 words as
calculated by Microsoft Word 2013.
/s/ Aaron Rediker
Aaron Rediker
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 4th day of September 2015, the
State’s Brief in the above-numbered cause has been electronically filed, and a
legible copy of the State's Brief has been sent by email to James W. Huggler Jr.,
attorney for appellant, at JHugglerLaw@sbcglobal.net.
/s/ Aaron Rediker
Aaron Rediker
14
Oscar Perkins v. State
Combined Opinion