Jacob Jordann Bright v. State

ACCEPTED
07-15-00118
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
9/28/2015 10:50:55 PM
Vivian Long, Clerk

No. 07-15-00118-CR
FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
In the Court of Appeals 9/28/2015 10:50:55 PM
VIVIAN LONG
for the Seventh District of Texas CLERK
Amarillo
_________________
JACOB JORDANN BRIGHT,
Appellant,

v.

THE STATE OF TEXAS,
Appellee.
_________________

On Appeal from Criminal District Court No. 1, Tarrant County,
Texas, The Honorable Elizabeth Beach Presiding
____________________________

APPELLANT’S INITIAL BRIEF
____________________________

WILLIAM R. BIGGS
WILLIAM R. BIGGS, PLLC
115 W. 2nd St., Suite 202
Fort Worth, TX 76102
817.332.3822 (t)
817.332.2763 (f)
wbiggs@williambiggslaw.com
TX Bar No. 24052832
ORAL ARGUMENT IS REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

The number and style of the case in the court below is as follows:

State of Texas v. Jacob Jordann Bright, Cause No. 1306330D, Criminal

District Court No. 1, Tarrant County, TX.

Criminal District Judge Hon. Elizabeth Beach

Defendant-Appellant Jacob Jordann Bright

Prosecution-Appellee The State of Texas

Defense Counsel William R. Biggs (appeal)
115 W. 2nd St., Suite 202
Fort Worth, TX 76102

William H. Ray (trial)
512 Main St., Suite 308
Fort Worth, TX 76102

Stephen E. Gordon (trial)
2101 Moneda St.
Fort Worth, TX 76117

Prosecution-Appellee Sharen Wilson
Tarrant County District Attorney
401 W. Belknap, 4th Floor
Fort Worth, TX 76196

Assistant District Attorneys:

Steve Gebhardt (trial)
Michele Hartman (trial)

i
 TABLE OF CONTENTS
PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . 2

ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

I. The evidence was legally insufficient to support a finding of guilt on
capital murder.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

II. The trial court provided erroneous instructions to the jury which
constitute reversible error... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

III. The trial court erred by declining to exclude from evidence text
messages from “Shawn,” in violation of TEX. R. EVID. 403. . . . . 36

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

ii
 INDEX OF AUTHORITIES

PAGE

UNITED STATES SUPREME COURT

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).. . . . . . . . . . . . . . . . . 22

COURT OF CRIMINAL APPEALS CASES

Almanza v. State, 686 S.W. 2d 157, 171 (Tex. Crim. App.
1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 32, 33

Crabtree v. State, 389 S.W. 3d 820 (Tex. Crim. App. 2012). . . . . . . . . . 22

Dougherty v State, 188 S.W. 3d 670, 2006 WL 475802 at *1 (Tex. Crim.
App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

Fuentes v. State, 991 S.W. 2d 267, 272 (Tex. Crm. App. 1999). . . . 25, 28

Gear v. State, 340 S.W.3d 743, 749 (Tex. Crim. App. 2011).. . . . . . . . . 23

Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App.2007). . . . . . . . . . . 23

King v. State, 953 S.W. 2d 2266, 271 (Tex. Crim. App. 1997). . . . . . . . 37

McGee v. State, 774 S.W. 2d 229, 234 (Tex. Crim. App. 1989).. . . . . . . 24

Medina v. State, 7 S.W. 3d 633, 640 (Tex. Crim. App. 1999). . . . . . . . . 32

Moff v. State, 131 S.W.3d 485, 488-89 (Tex. Crim. App. 2004). . . . . . . 22

Nava v. State, 415 S.W. 3d 289, 298 (Tex. Crim. App.
2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 32, 33, 34

iii
 PAGE

Paulson v. State, 28 S.W. 3d 570, 572 (Tex. Crim. App. 2000). . . . . . . 35

Riles v. State, 595 S.W. 2d 858, 862 (Tex. Crim. App. 1980). . . . . . 24, 25

Schmutz v. State, 440 S.W. 3d 29, 39 (Tex. Crim. App. 2014). . . . . . . . 37

Soloman v State, 49 S.W. 3d 345, 366 (Tex. Crim. App. 2001). . . . 37, 40

Taylor v. State, 332 S.W. 3d 483, 488 (Tex. Crim. App. 2011).. . . . 27, 28

Threadgill v. State, 146 S.W. 3d 654, 655 (Tex. Crim. App. 2004). 29, 30

Torres v. State, 81 S.W. 3d 758, 760 (Tex. Crim. App. 2002). . . . . . . . . 36

COURTS OF APPEALS CASES

Chaney v. State, 314 S.W. 3d 561, 568-573 (Tex. App.—Amarillo
2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Dougherty v. State, 2007 Tex App. LEXIS 4449 (Tex. App. Houston 1st
Dist., June 7, 2007) (unpublished). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Matthews v. State, 2015 Tex. App. LEXIS 6861 (Tex. App.—FortWorth,
July 2, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 36

Montgomery v. State, 198 S.W. 3d 67, 79 (Tex. App.—Fort Worth, 2006,
pet. ref’d.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Vosberg v. State, 80 S.W. 3d 320, 324 (Tex.App.—FortWorth, 2002, pet.
ref’d.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 35, 36

iv
 STATUTES AND RULES

TEX. R. APP. PR. 44.2(B).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

TEX. CODE CRIM. PROC. ANN. art. 36.14. . . . . . . . . . . . . . . . . . . . . . . . . 27

TEX. PEN. CODE § 19.02(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

TEX. PEN. CODE § 19.02(b)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

TEX. PEN. CODE § 19.02(b)(3).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Tex. Pen. Code § 19.03(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 23

TEX. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 37, 42

v
 STATEMENT OF THE CASE

This case presents an appeal of a criminal judgment of conviction

and sentence arising from Criminal District Court No. 1 in Tarrant

County, Texas.

Appellant Jacob Jordann Bright was indicted with one count of

capital murder, in violation of Texas Penal Code § 19.03(a)(2). (CR 9.) The

State waived the death penalty. (CR 173.)

The case proceeded to jury trial and the jury returned a verdict of

guilty. (CR 296); (6 RR 133-36.) The Court sentenced Appellant to life

without parole. (6 RR 135-36); (CR 301-06.) Appellant timely filed a

notice of appeal the same day. (CR 307.)

This appeal follows.

Page 1 of 44
 STATEMENT REGARDING ORAL ARGUMENT

Oral argument is requested.

Page 2 of 44
 ISSUES PRESENTED

I. Is the evidence legally sufficient to support a conviction?

II. Did the trial court commit reversible jury charge error
when defining capital murder and murder in the jury
instructions?

III. Did the trial court abuse its discretion when it failed to
exclude text messages from “Shawn” under Rule 403 of
the Texas Rules of Evidence?

Page 3 of 44
 STATEMENT OF THE FACTS

INDICTMENT

The State of Texas indicted Appellant for capital murder, as

proscribed under Texas Penal Code § 19.03(a)(2). (CR 9.) That is, the

State alleged that Appellant committed intentional murder in the course

of a robbery or attempted robbery. (CR 9.) The indictment specifically

alleged that Appellant, on or about November 19, 2012, did:

then and there cause the death of an individual, Islander
Tavira, by shooting him with a firearm, and said defendant
was then and there in the course of committing or attempting
to commit the offense of robbery. (CR 9.)

ATTEMPTED ROBBERY AND SHOOTING

On November 19, 2012, Islander Tavira was shot and killed in the

courtyard area of the South Gate apartment complex in Fort Worth, TX.

Tavira, his girlfriend, Maria Rodriguez, and two of her children had

returned to the South Gate apartments sometime during the evening. It

was dark. (3 RR 67.) As they were parking, Rodriguez saw two

individuals inside a breezeway which connected the parking lot to the

interior courtyard of the complex. (3 RR 70-71.) Their front door was

Page 4 of 44
located inside the courtyard; the breezeway provided passage between the

parking lot and the front door. (3 RR 70; 80.)

Tavira pulled into a parking spot a few spaces to the left of the

breezeway. See (State Ex. 5-7); (3 RR 71-72.) Exiting the car, Tavira

walked in front of the vehicles towards the breezeway, between the

vehicles and a wall of the apartment complex; Rodriguez and her children

walked behind the vehicles towards the breezeway. (State Ex. 5-7); (3 RR

72-73.)

As Tavira approached the corner of the wall and the breezeway, he

was near the back of a red truck. (State Ex. 11); (3 RR 75.) Near the edge

of the breezeway, Rodriguez saw a short black man, dressed in all black

and wearing a cold-weather mask. (3 RR 74-76.) She did not recognize

him. (3 RR 77.) He held a gun in his right hand, and it was pointed at

Tavira. (3 RR 78.) The man told Tavira in broken Spanish that he wanted

money. (3 RR 77-78.) Tavira replied in Spanish that he didn’t have any

money. (3 RR 78.) The man again advised he wanted money and Tavira

again told him he did not have any money. (3 RR 78.) The man had been

holding his pants with his left hand. During the encounter, Rodriguez

Page 5 of 44
remembered that the man let go of his pants and might have touched the

red truck immediately nearby. (3 RR 90-91.)

At this point one of the minors, J.R., ran through the breezeway

towards the courtyard. (3 RR 79.) The masked man then turned and ran,

either after or at least in the same direction as J.R. (3 RR 79-88.)

Rodriguez told Tavira that J.R. had run, and that the masked man was

running after him. (3 RR 81.) Both Tavira and Rodriguez then ran

through the breezeway after the masked man. (3 RR 81.)

The man ran into the grass courtyard. (3 RR 83.) He turned around

and was either running or walking quickly backwards; while doing so he

shot his gun. (3 RR 84-85.) Tavira was hit three times and grazed once.

(5 RR 79-84.) Tavira was hit near the collarbone, below the left armpit,

and in the left elbow. (5 RR 79-84.) The shot near the collarbone proved

to be lethal because the bullet ruptured an artery. (5 RR 80-82.) The shot

to the armpit traveled through the abdominal area. (5 RR 82-82.) A

fourth shot grazed his right shoulder. (5 RR 79-80.) The man continued

running in the opposite direction and left. (3 RR 86.)

Page 6 of 44
 According to Rodriguez, Islander stood for two minutes before he

collapsed. (3 RR 87.) He was pronounced dead at the hospital. (5 RR 98.)

Mechelle Patterson testified that she saw the shooting from inside

her apartment. She claimed that Appellant and Floyd McCoy were in her

apartment prior to the shooting. (4 RR 83.) According to Patterson,

Appellant told McCoy that he had lost some money and wanted to get it

back. (4 RR 84-85.) McCoy suggested that Appellant rob someone and

Appellant was receptive to that idea. (4 RR 85.) Appellant had a revolver.

(4 RR 86.) The two eventually left the apartment. (4 RR 87.)

Patterson claimed she saw Floyd and Appellant “peeking around the

corner of the breezeway from across [her] apartment.” (4 RR 88.) But she

never saw Appellant wearing any kind of face covering. (4 RR 87.)

Eventually McCoy returned to the apartment. (4 RR 90-91.) At some

point she saw Appellant running through the breezeway. (4 RR 92-93.)

She then saw a “little Mexican man” running through the breezeway and

“it looked like he was chasing after Jacob.” (4 RR 92-93.) Patterson

testified Appellant “turned around and fired off three shots.” (4 RR 92-93.)

Page 7 of 44
The man collapsed after the third shot. (4 RR 108.) She fell to the ground,

began to cry, and did not see where Jacob went. (4 RR 94; 108-09.)

Beatriz Alvera, Appellant’s live-in girlfriend at the time, testified

that Appellant told her about the shooting. (4 RR 128.) According to

Alvera, Appellant told her that he had asked a guy to “give him whatever

he had.” (4 RR 128.) Appellant advised her that he “noticed they knew

each other,” and “he took off running.” (4 RR 128.) The “guy came after

him and they started tussling.” (4 RR 128.) He was “scared and didn’t

know what to do,” so he “pulled the trigger.” (4 RR 128.)

IDENTITY

Without text messages

The State elicited the following evidence in effort to establish that

Appellant was the shooter.

Surveillance footage from a nearby school showed someone park a

car matching Olvera’s at the South Gate apartment complex several hours

prior to the shooting. (5 RR 109-110; State Ex. 60.) Appellant’s girlfriend

arrived to pick up the car after the shooting. (5 RR 110-111; State Ex. 60.)

Surveillance video also showed an individual running through the school

Page 8 of 44
parking lot near the time of the shooting. (5 RR 107-108; State Ex. 60.)

Cell phone records suggested that Appellant had been in the general

vicinity of the shooting when the shooting took place. (4 RR 220-257.)

Brian Mason testified that he saw Appellant at the South Gate

apartments earlier in the day. (4 CRR 32-33.) Mason’s brother lives in

South Gate; Mason’s son was also present. (4 RR 32-33.) According to

Mason, Appellant took an interest in a black Halloween mask in Mason’s

son’s possession. (4 RR 32-34.) Appellant expressed interest in acquiring

the mask. (4 RR 34.) When Mason left the apartment, he “threw it out

the window, on the street.” (4 RR 34.)

Later that day, Mason saw Appellant running towards his house

(technically, his mother’s house) on East Seminary. (4 RR 36.) The house

is a 15-20 minute run from South Gate Apartments. (4 RR 42.) Appellant

looked excited and was asking for help. (4 RR 34-39; 51.) Appellant was

asked to leave and he eventually left. Rashad Holloway testified that he

picked up Appellant at Mason’s house. (4 RR 56; 65-66.) He took

Appellant home and then took Alvera to pick up her car, dropping her off

at a Citgo station near the apartment. (4 RR-56-60.)

Page 9 of 44
 Alvera testified that Appellant arrived back at the apartment with

a man purporting to be his cousin. Alvera accompanied the cousin to the

apartment complex to pick up her car, though they first strolled through

the complex “to see what was going on.” (4 RR 127-128.) Alvera testified

that she returned and told Alvera about the shooting. (4 RR 128)

The only purported eyewitness who identified Appellant as the

shooter was Patterson. She claimed McCoy had also been present, but

McCoy never testified. Patterson initially claimed in a 38 minute

interview with law enforcement that she did not see what happened. (4

RR 79-81.) She only identified Appellant as the shooter after she caught

a felony drug case a year and a half later. (4 RR 96; 99.) Patterson met

with prosecutors, changed her story, and her case was ultimately

dismissed. (4 RR 94-97.) Patterson claimed she had initially been

untruthful when police suspected “Dante” had been the shooter. (4 RR 80-

81.)

No fingerprints or DNA could link Appellant to the robbery; no

fingerprints or DNA of Appellant’s could be found on the red truck located

immediately near the robbery. (4 RR 201-202); (5 RR 16-26.) While

Page 10 of 44
Appellant’s fingerprints were found on Alvera’s car, the two lived together

and were in a relationship. (4 RR 114; 212.)

Text messages

Over defense objection, the State admitted screen shots of text

messages contained on Appellant’s phone. See ( 5 RR 126- 140; 6 RR 6-18.)

This included a series of text messages exchanged between Appellant and

“Shawn,” who the State established was an older brother of Appellant. (4

RR 55; 133; 5 RR 65-66.)

They included the following:

Shawn: An get a different phone get redd of your
phone. Get a prepaid phone. To much text
an talking on that phone.

Appellant: Bet

Shawn: You can get away with this just play your
cards right. I got to make sure nobody talkin.
you no officer west bitch ass no you. (State
Ex. 78)

Appellant: I know but he aint seen me in 7 months he
don’t even know I still be coming to the hood.
1200 Blocc hot boy.
***
Shawn: Did eneyone see you.

Appellant: No.

Page 11 of 44
 Shawn: Are you sure?

Appellant: Yea.

See (State Ex. 76, 77, 78, 79, 82, 83, 84, 85.)

Defendant objected to the admission of “Shawn’s” texts on a number

of grounds, including Rule 403 of the Texas Rules of Evidence. See ( 5 RR

126- 140; 6 RR 6-18.)

The State also introduced a text message to a friend, “Manual,” that

appeared to place Appellant at the South Gate apartments approximately

an hour before the shooting:

Mon, Nov. 19, 8:23 p.m.

Appellant: Say bro im in south gates im tryna fuck wit u
bro holla at me.
(State ex. 94.)

DEFENSE CASE

Appellant testified in his defense. He acknowledged that he had

driven to the South Gate apartment complex in his girlfriend’s car that

night. (4 RR 60-61.) He testified that he had come to the South Gate

apartments in order to sell a firearm and marijuana to McCoy; the

transaction took place in Patterson’s apartment. (6 RR 62-66.) Appellant

Page 12 of 44
testified that he soon thereafter went to see a friend at a nearby

apartment complex for two or three hours. (6 RR 66.)

Appellant testified that he then went outside the nearby apartment

complex and sat in a car with Miesha Davis, another girlfriend. (6 RR 67.)

They sat together smoking marijuana for 30-45 minutes when McCoy

approached the car. (6 RR 69.) McCoy confronted Appellant about the

firearm Appellant had sold him. McCoy complained the firearm did not

work, and he wanted a refund. (6 RR 72-73.) The two got in fight. (6 RR

72.) After the fight, Appellant ran to Mason’s house. (6 RR 72.)

JURY INSTRUCTIONS

In the Court’s charge, the Court defined capital murder in the

following manner:

[a] person commits the offense of capital murder if the person
intentionally commits the offense of murder in the course of
committing or attempting to commit robbery.

(CR 289) (emphasis added). In defining murder, the Court instructed the

jury that:

[a] person commits the offense of murder if he intentionally
causes the death of an individual or intends to cause serious
bodily injury and commits an act clearly dangerous to human
life that causes the death of an individual.

Page 13 of 44
(CR 289) (emphasis added).

The jury was invited to consider murder as a lesser-included offense.

(CR 291-292.) Neither the murder definition nor the application

paragraph included felony-murder conduct in its definition. The

application paragraph provided:

Now, if you find from the evidence beyond a reasonable doubt
that on or about the 19th day of November, 2012, in Tarrant
County, Texas, Jacob Jordann Bright, did then and there
intentionally cause the death of an individual, Islander Tavira,
by shooting him with a firearm, or intended to cause serious
bodily injury to Islander Tavira and committed an act clearly
dangerous to human life, by shooting him with a firearm, you
will find the defendant guilty of the offense of murder.

(CR 292.)

Regarding the beyond-a-reasonable-doubt standard, the trial court

instructed the jury that “[i]t is not required that the prosecution prove

guilt beyond all possible doubt; it is required that the prosecutions’ proof

exclude all reasonable doubt concerning the defendant’s guilt.” (CR 291.)

CLOSING ARGUMENT, JURY DELIBERATIONS, AND VERDICT

During closing argument, the State specifically emphasized

Appellant’s text conversation with Shawn. See (6 RR 130-131.) And

Page 14 of 44
during deliberations, the jury requested to see the exhibits which

photographed these series of text messages on Appellant’s phone. See

(CR 297.)

The jury ultimately found Appellant guilty of capital murder. (CR

296); (6 RR 133-36.) The trial court sentenced Appellant to life without

parole. (6 RR 135-36); (CR 301-06.)

Page 15 of 44
 SUMMARY OF THE ARGUMENT

Issue I:

The evidence was legally insufficient for two reasons. First, the

evidence does not establish that the murder was committed “in the course”

of a robbery or attempted robbery. The evidence shows that any

attempted robbery had been abandoned by the time of the shooting. The

State could only plausibly argue that the shooting was committed in

immediate flight from the attempted robbery. However, this putative

basis also fails, because the evidence shows that the shooter did not fire

his weapon while fleeing from any attempted robbery. Rather, the

evidence shows that the shooter fired his gun to stave off an attack from

Tavira, who had (justifiably) gone after the shooter to protect a minor that

the shooter had been or appeared to be chasing.

Second, the evidence fails to show that the shooter specifically

intended to kill Tavira. The evidence shows a quick sequence of events

where the shooter appeared to have gotten scared and fired his gun to

avoid an attack from Tavira. The shooter did not hit Tavira in the head,

heart or any other organ that might demonstrate a specific intent to kill.

Page 16 of 44
Rather Tavira died because a bullet to his clavicle ruptured an artery.

Additionally, the evidence shows that the shooter fled while Tavira was

still standing. A rational juror would find that a shooter would not have

simply left while Tavira was still standing if he specifically intended to kill

him.

Issue II:

The trial court provided erroneous instructions to the jury that

caused egregious harm. The trial court made two related errors in

defining capital murder and murder. First, the trial court defined capital

murder in terms of “intentionally commit[ting] the offense of murder”

instead of narrowing the conduct to “intentionally causing the death of

another.” Murder was in turn defined in the charge as encompassing both

1) intentionally causing the death of another, and 2) with intent to cause

serious bodily injury, committing an act clearly dangerous to human life

that caused the death of another. Reading these definitions together, the

jury would have been mislead into believing that serious-bodily-injury

murder could support a capital murder conviction.

Page 17 of 44
 The trial court also erred in defining murder. It failed to include

felony murder in its definition of murder. That is, the definition failed to

include a third type of murder: during the course of a felony or attempted

felony commits an act clearly dangerous to human life that results in the

death of an individual. The application paragraph to the lesser-included

offense of murder also failed to include felony murder as an option,

thereby limiting the potential bases for a jury to find the lesser-included

offenses of murder.

These errors caused egregious harm. The application paragraph to

capital murder correctly narrowed the murder element to intentionally

causing the death of Tavira, but this does not end the inquiry.

Additionally, the application paragraph for felony murder failed to include

felony murder in its definition. The error was particularly harmful in

light of the state of the evidence. Once the jury identified Appellant as the

shooter, his specific intent would have been the central issue of the trial.

The chaotic events leading up to the shooting, the fact that Appellant did

not shoot Tavira in the head or vital organ, and the fact that Appellant left

while Tavira was standing would cast grave doubt as to whether Appellant

Page 18 of 44
had a specific intent to kill. Furthermore, the arguments of counsel, or

lack thereof failed to cure the harm. While the arguments of counsel did

not make the error worse, their silence on this issue failed to cure the

harm arising from the erroneous definitions.

Appellant also claims that the trial court erred when it instructed

the jury that the prosecution need not prove guilt beyond all doubt.

However, he acknowledges this particular issue is foreclosed under the

Second Court of Appeals decision in Vosberg v. State, 80 S.W. 3d 320, 324

(Tex. App.—Fort Worth, 2002, pet. ref’d.). He nevertheless raises the issue

to preserve for further review.

Issue III.

The trial court erred when it declined to exclude from evidence text

messages found on Appellant’s phone from “Shawn,” a man who appeared

to be Appellant’s older brother. In Shawn’s messages, he 1) instructs

Appellant to get a different phone; 2) tells Appellant he can “get away with

this” 3) informs Appellant he intends to make sure that “nobody talkin;”

and 4) he inquires as to whether anyone saw him. The evidence should

have been excluded under Rule 403 of the Texas Rules of Evidence.

Page 19 of 44
 The evidence is of limited probative value because the messages fail

to specify what exactly the two are talking about. Second, to the extent

that the two are talking about the shooting, the evidence fails to show

what if any personal knowledge Shawn actually may have about the

shooting. Third, it cannot be determined whether Shawn actually sent the

incriminating text messages, as it is unknown who may have access to his

phone.

For similar reasons, the evidence is unduly prejudicial. The evidence

invites the jury to believe that on an irrational basis that Appellant

committed the shooting. It is unknown exactly what event Shawn may be

describing, and assuming it is the murder, the basis for Shawn’s

information is unknown. Additionally, the text messages allow the jury

to rely on unknown implied hearsay, the reliability of wich cannot be

tested by cross examination.

The error caused harm. The central issue of the trial was identity,

and only one eyewitness, Mechelle Patterson, could positively identify

Appellant as the shooter. But this witness was not credible: she initially

denied any knowledge of the shooting and only changed her story after

Page 20 of 44
catching a felony case. Furthermore, her story differs in key aspects with

the account of the victim’s spouse, a more credible witness. Additionally,

no physical evidence could tie Appellant to the particular scene of the

shooting.

The text messages provided an important (though irrational) link

between Appellant and the shooting. The State attorney specifically

emphasized the text messages in his closing remarks to the jury.

Additionally, the jury specifically requested the text messages in a note to

the trial court. For these reasons, the Court has no fair assurance that the

error did not influence the jury. Thus, the conviction must be reversed.

Page 21 of 44
 ARGUMENT AND AUTHORITIES

I. The evidence was legally insufficient to support a finding of
guilt on capital murder.

A. Standard of Review

While Appellant did move for a directed verdict following the State’s

case, (6 RR 25), challenges to the sufficiency of the evidence “need not be

preserved for appellate review at the trial level, and it is not forfeited by

the failure to do so.” Moff v. State, 131 S.W.3d 485, 488-89 (Tex. Crim.

App. 2004). When such a claim is raised on direct appeal, “the appellate

court always has a duty to address that issue, regardless of whether it was

raised in the trial court.” Id. at 488.

In reviewing the legal sufficiency of the evidence, this Court must

apply the familiar Constitutional standard: viewing the evidence in the

light most favorable to the verdict, it must determine if any rational trier

of fact could have found each of the essential elements of the offense to

have been proven beyond a reasonable doubt. See, e.g., Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979); Crabtree v. State, 389 S.W. 3d 820

(Tex. Crim. App. 2012). This “rigorous due-process standard . . . .

protect[s] a defendant from conviction without sufficient proof of every

Page 22 of 44
element of the offense to satisfy the beyond-a-reasonable-doubt standard.”

Gear v. State, 340 S.W.3d 743, 749 (Tex. Crim. App. 2011) (Cochran, J.,

dissenting) (emphasis in original).

Under this “rigorous” standard, this Court must review all of the

evidence and “reasonable inferences therefrom” and determine if the

standard is met. See, e.g., Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim.

App.2007) (emphasis added).

B. Argument

The evidence was legally insufficient in two respects. First, the

evidence was legally insufficient in showing that Appellant caused death

“in the course of committing or attempting to commit the offense of

robbery.” (CR 9.) Secondly, the evidence was legally insufficient in

showing that Appellant specifically intended to cause the death of the

Tavira.

In order to establish that the death was caused “in the course of

committing” robbery or attempted robbery under § 19.03(a)(2), the State

must prove the murder took place “in an attempt to commit, during the

commission, or in immediate flight after the attempt or commission of the

Page 23 of 44
offense . . . of robbery.” Riles v. State, 595 S.W. 2d 858, 862 (Tex. Crim.

App. 1980); see McGee v. State, 774 S.W. 2d 229, 234 (Tex. Crim. App.

1989). The evidence showed no such nexus between any robbery or

attempted robbery.

The evidence demonstrated that the shooting had taken place after

an attempted robbery. Rodriguez testified that a masked individual held

Tavira at gunpoint and twice asked for money in Spanish. (3 RR 77-78.)

But once her minor child ran past them through the breezeway, the

masked individual took off behind the child and appeared to be chasing

the child. (3 RR 79-88.) Rodriguez and Tavira then ran after the masked

individual. (3 RR 81.) The masked individual eventually turned around

and opened fire. (3 RR 84-85.) Patterson similarly testified that it looked

like the “little Mexican man . . . was chasing after Jacob.” (4 RR 92-93.)

It was at that point that Jacob “turned around and fired off three shots.”

(4 RR 92-93.)

The evidence shows that the shooter had abandoned the commission

of any robbery and thus the shooting did not take place “in the course” of

any robbery or attempted robbery. The evidence shows that the shooter

Page 24 of 44
fired the gun at Tavira in order to stave off any attack from him; he and

Rodriguez were running after him, apparently out of justifiable concern for

their child. No evidence in the record suggests that the shooter still has

any interest in effectuating a robbery.

The only remotely plausible basis for finding the shooting took place

“in the course” of an attempted robbery would be that the shooting took

place “in immediate flight after the [robbery] attempt.” Riles, 595 S.W. 2d

858, 862 (Tex. Crim. 1980). But the evidence fails to support this theory

as well. The evidence did not suggest that Tavira was chasing Appellant

after a failed attempt to rob him. On the contrary, it was clear that

Tavira was chasing after the masked individual because of a perceived

threat to J.R. The masked individual then shot Tavira because it

appeared that Tavira would (justifiably) attack him. The shooter did not

appear to fire at Tavira in order to effectuate his escape from the

attempted robbery itself.

Secondly, no rational juror could have found beyond a reasonable

doubt that Appellant specifically intended to kill Tavira. See Fuentes v.

State, 991 S.W. 2d 267, 272 (Tex. Crm. App. 1999) (“The distinguishing

Page 25 of 44
element between felony murder and capital murder is the intent to kill.”)

At best the evidence showed that Appellant “committed an act clearly

dangerous to human life” in firing shots at Appellant, whose death was

caused by a shot to the collarbone which happened to rupture an artery.

(5 RR 81.)

Tavira sustained no injuries to the head or vital organs such as the

heart. The decedent was hit in the elbow, the left armpit, left collarbone,

and grazed on the right shoulder. It just so happened that the shot to the

collarbone ruptured an artery. The evidence shows this to have been a

quick decision made soon after turning around and while in retreat from

a charging Tavira. The evidence shows a quick, clearly dangerous act

committed to stave off an attack, not an act specifically calculated to end

Tavira’s life.

The evidence below stands in stark contrast to a scenario where a

robber shoots a convenience store clerk in the head at close range while

the clerk is kneeling at gunpoint. Those facts evince an intent to kill; or

at the very least a rational juror could find such intent beyond a

reasonable doubt given the circumstances. But here there no such facts.

Page 26 of 44
Rodriguez testified that Tavira remained standing for several minutes

prior to falling to the ground. (3 RR 87.) Had the shooter specifically

intended to kill Tavira, it would stand to reason that he would have fired

another shot at close range.

A rational trier of fact must not only find that the evidence gives rise

to an plausible inference of such intent; the rational juror must find the

evidence yields such an inference beyond a reasonable doubt. No rational

juror could conclude on these facts beyond a reasonable doubt that

Appellant specifically intended to kill Tavira. For these reasons, the

conviction must be reversed.

II. The trial court provided erroneous instructions to the jury
which constitute reversible error.

A . Standard of Review

Under Rule 36.14 of the Texas Code of Criminal Procedure, the “trial

judge is ultimately responsible for the accuracy of the jury charge and

accompanying instructions.” Taylor v. State, 332 S.W. 3d 483, 488 (Tex.

Crim. App. 2011). This duty exists “even when defense counsel fails to

object to inclusion or exclusions in the charge.” Id. at 486. Claims of jury

Page 27 of 44
charge error are thus reviewable notwithstanding the absence of a timely

objection at trial.

If no objection is made, this Court will reverse the jury charge error

if the error resulted in “egregious harm.” Id. at 489 (citing Almanza v.

State, 686 S.W. 2d 157, 171 (Tex. Crim. App. 1985)). Egregious harm

means the error was such that it “deprived [Appellant] of a fair and

impartial trial.” Taylor, 332 S.W. 3d 489; see Almanza, 686 S.W. 2d at

489. “The record must disclose ‘actual rather than theoretical harm,’ and

the error must have affected the very basis of the case, deprived the

defendant of a valuable right, or vitally affected a defensive theory.” Nava

v. State, 415 S.W. 3d 289, 298 (Tex. Crim. App. 2013) (citing Taylor, 332

S.W. at 489). In conducting its inquiry, the Court must look to the jury

charge, the state of the evidence, the arguments of counsel, and any other

relevant information revealed by the record of the trial as a whole. Id.

B. Argument

1) The court erroneously instructed the jury as to the
definitions of capital murder and murder.

The trial court made multiple errors in the jury charge. First, it

defined capital murder in a way that would lead a jury to believe it did not

Page 28 of 44
necessarily have to find that Appellant specifically intended to kill Tavira.

Second, the trial court failed to include felony murder in both its definition

of murder, and in the application paragraph of the lesser-included offense,

thereby limiting the range of options for the jury regarding the lesser

included offense.

First, the trial court provided an erroneous definition of capital

murder to the jury. It defined capital murder as the intentional

commission of murder instead narrowing the definition to the type of

murder that could give rise to a capital offense. The trial court’s

instruction provided:

[a] person commits the offense of capital murder if the person
intentionally commits the offense of murder in the course of
committing or attempting to commit robbery.

(CR 289) (emphasis added). The trial court in turn defined murder as:

[a] person commits the offense of murder if he intentionally
causes the death of an individual or intends to cause serious
bodily injury and commits an act clearly dangerous to human
life that causes the death of an individual.

(CR 289) (emphasis added).

This was error. Capital murder requires the specific intent to kill.

See Threadgill v. State, 146 S.W. 3d 654, 655 (Tex. Crim. App. 2004) (“The

Page 29 of 44
element distinguishing capital murder from felony murder is the intent to

kill.”). The trial court defined capital murder too broadly. Instead of

limiting its definition to intentionally causing the death of an individual,

it defined capital murder generally as the intentional commission of

murder. The problem here is that some types of murder fail to establish

a capital offense; capital murder requires a specific intent to kill.

Threadgill, 146 S.W. 3d at 655. The trial defined murder as (1)

intentionally causing the death of another (authorized basis for capital

murder), and (2) with intent to cause serious bodily injury, the commission

of an act clearly dangerous to human life (unauthorized basis for capital

murder). By defining capital murder as the intentional commission of

murder, the jury was authorized to find Appellant guilty of capital murder

even if it failed to find that he specifically intended to cause the death of

Tavira. Said another way, the instructions suggested that serious-bodily-

injury murder could support a capital murder conviction. It cannot.

Secondly, the trial court failed to include felony murder within the

applicable definition of murder. In defining murder, the trial court

provided the jury with the definitions of murder provided in Sections

Page 30 of 44
19.02(b)(1) & (2) of the Texas Penal Code. See (CR 289.) That is, the

causing defined murder as either: intentionally causing the death of

another [(b)(1) definition], or where an individual intends to cause serious

bodily injury, he commits an act clearly dangerous to human life that

causes the death of another [(b)(2) definition]. See (CR 289.) But the trial

court failed to provide for the third possibility, felony murder under §

19.02(b)(3):

commits or attempts to commit [robbery]. . .and in the course
of and in furtherance of the commission or attempt, or in
immediate flight from the commission or attempt, he commits
or attempts to commit an act clearly dangerous to human life
that causes the death of an individual.

TEX. PEN. CODE § 19.02(b)(3).

By failing to define murder with respect to this third definition, the

jury was given only a limited basis to find Appellant guilty of the lesser-

included offense of murder. This error was not cured by the application

paragraph. The application paragraph was also missing language

pertaining to felony murder:

Now, if you find from the evidence beyond a reasonable doubt
that on or about the 19th day of November, 2012, in Tarrant
County, Texas, Jacob Jordann Bright, did then and there
intentionally cause the death of an individual, Islander Tavira,

Page 31 of 44
 by shooting him with a firearm, or intended to cause serious
bodily injury to Islander Tavira and committed an act clearly
dangerous to human life, by shooting him with a firearm, you
will find the defendant guilty of the offense of murder. (CR
292.)

Failure to include felony-murder in the definition and application

paragraphs limited the jury’s ability to consider the full range of

possibilities for the lesser-included offense of murder.

2) The errors caused egregious harm.

The first factor the Court must consider is the jury charge. See

Nava, 415 S.W. 3d at 298. This factor arguably cuts in favor of both sides.

The application paragraph for capital murder did correctly limit the

murder definition to “intentionally causing the death of . . . Tavira.” (CR

291.) But the application paragraph for the lesser offense of murder still

failed to include the felony-murder definition.1 See (CR 292.)

1
To the extent the Court finds Appellant fails to prevail on the first factor, he
submits he should still prevail after consideration of all the factors. In an unpublished
case, the Court of Criminal Appeals reversed an appellate court that did not conduct
analysis using all of the Almanza factors after concluding that the application
paragraph had been correct. See Dougherty v State, 188 S.W. 3d 670, 2006 WL 475802
at *1 (Tex. Crim. App. 2006). The appellate court in Dougherty had relied on Medina
v. State, 7 S.W. 3d 633, 640 (Tex. Crim. App. 1999) for the proposition that errors in
the abstract instructions can never be “egregious” where the application paragraph is
correctly written. See Dougherty v. State, 2007 Tex App. LEXIS 4449 (Tex. App.
Houston 1st Dist., June 7, 2007) (unpublished). In reversing, the Court of Criminal
Appeals indicated that no such bright line rule exists. Even where the application

Page 32 of 44
 The second factor the Court must consider is the state of the

evidence. Nava v. State, 415 S.W. 3d at 298 The state of the evidence

militates in favor of reversal. It is true that identity was the primary

focus of the parties at trial. But once the jury identified Appellant as the

shooter, Appellant’s specific intent during the shooting would have been

the central issue for the jury to decide. There was limited evidence

regarding the circumstances of the shooting itself----essentially two

eyewitnesses (to the extent that both should be believed). And these

witnesses describe a sudden, chaotic event in which Appellant was

suddenly being chased by Tavira, with Rodriguez not far behind. He

turned around and fired three or four shots. The physical evidence shows

that Tavira sustained no gunshot wounds to the head, nor to any vital

organs that might have been attractive targets for a gunman specifically

intending to kill. Instead, Tavira died from a bullet near the collar bone

that unfortunately ruptured an artery. (5 RR 82.) Additionally, Rodriguez

testified that Tavira remained standing for two minutes after the

paragraph is correct, an appellate court must consider all of the Almanza factors when
assessing harm. See Chaney v. State, 314 S.W. 3d 561, 568-573 (Tex. App.—Amarillo
2010) (citing Doughtery and finding egregious harm even where application paragraph
had been correct).

Page 33 of 44
shooting. (3 RR 87.) A juror would have a difficult time finding a specific

intent to kill where the shooter left the victim while he was standing.

Furthermore, it was dark, and thus it would have been difficult for him to

ascertain whether he had done enough damage to Tavira to kill him.

Third, the court must consider the arguments of counsel. Nava, 415

S.W. 3d at 298. Appellant acknowledges that neither government nor

defense counsel discussed this error. But Appellant submits that this very

silence provides a reason why this factor should cut in his favor. Neither

side drew the jury’s attention to the faulty jury instructions. Thus, while

neither side exacerbated the error with their comments, neither side

mitigated the error either by steering the jury in the right direction. And

this was not an issue which the jury may have avoided confronting. Once

identity was established, the jury was inevitably going to have to decide

upon Appellant’s specific intent at the time of the shooting.

Page 34 of 44
 3) Foreclosed issue: the trial court erred when it
instructed the jury that the State need not “prove guilt
beyond all possible doubt.”2

The trial court erred reversibly erred in providing a partial definition

of beyond a reasonable doubt. Specifically, the trial court instructed the

jury “[i]t is not required that the prosecution prove guilt beyond all

possible doubt; it is required that the prosecutions’ proof exclude all

reasonable doubt concerning the defendant’s guilt.” (CR 291.)

Appellant submits this was error. In Paulson v. State, 28 S.W. 3d

570, 572 (Tex. Crim. App. 2000), the Court of Criminal Appeals held that

“the better practice is to give no definition of reasonable doubt at all.” By

instructing a jury that beyond a reasonable doubt does not mean all

possible doubt, the trial court is providing at least a partial definition of

beyond a reasonable doubt. Appellant acknowledges that this issue is

foreclosed by the Second Court of Appeals’ decision in Vosberg v. State, 80

S.W. 3d 320, 324 (Tex. App.—Fort Worth, 2002, pet. ref’d), and in the

Second Court of Appeals more recent decision in Matthews v. State, 2015

Tex. App. LEXIS 6861 (Tex. App.—Fort Worth, July 2, 2015) (declining to

2
Foreclosed by Vosberg v. State, 80 S.W. 3d 320, 324 (Tex. App.—Fort Worth,
2002, pet. ref’d.)

Page 35 of 44
overrule Vosberg). Nevertheless, he preserves the issue for further review.

Counsel will note that the Second Court of Appeals in Matthews observed

that “we do not now hold that giving such an instruction is a wise thing for

trial courts to do,” and hardly appeared enthusiastic about its Vosberg

decision. Id. at *2.

III. The trial court erred by declining to exclude from evidence
text messages from “Shawn,” in violation of TEX. R. EVID. 403.

A. Standard of review

A trial court’s decision as to whether admit or exclude evidence is

reviewed under an abuse of discretion standard. Torres v. State, 81 S.W.

3d 758, 760 (Tex. Crim. App. 2002); see Montgomery v. State, 198 S.W. 3d

67, 79 (Tex. App.—Fort Worth, 2006, pet. ref’d.) The trial court’s decision

will be reversed if it was “outside the zone of reasonable disagreement”

among jurists. Montgomery, 198 S.W. 3d at 77.

In conducting its prejudice v. probative analysis when reviewing

Rule 403 violations, the Court considers (1) how probative is the evidence;

(2) the potential of the evidence to impress the jury in some irrational, but

nevertheless indelible way; (3) the time the proponent needs to develop the

evidence; and (4) the proponent’s need for the evidence. Montgomery, 198

Page 36 of 44
S.W. 3d at 77 (citing Soloman v State, 49 S.W. 3d 345, 366 (Tex. Crim.

App. 2001)).

Non-constitutional errors are reversible if the error affected

Appellant’s substantial rights. See TEX. R. APP. PR. 44.2(B). An error

affects a substantial right when it has a substantial and injurious effect

or influence on the verdict. King v. State, 953 S.W. 2d 2266, 271 (Tex.

Crim. App. 1997). An error does not affect a substantial right if the Court

has “fair assurance that the error did not influence the jury, or had but

slight effect.” Solomon v. State, 49 S.W. 3d 356, 365 (Tex. Crim. App.

2001). The Court considers “everything in the record[,] . . . includ[ing]

testimony, physical evidence, jury instructions, the State’s theories and

any defense theories, and voir dire, if applicable.” Schmutz v. State, 440

S.W. 3d 29, 39 (Tex. Crim. App. 2014).

B. Argument

Rule 403 of the Texas Rules of Evidence provides that a court “may

exclude evidence if its probative value is substantially outweighed by a

danger of,” among other things, “unfair prejudice,” “confusing the issues,”

and misleading the jury. TEX. R. EVID. 403. The trial court erred under

Page 37 of 44
Rule 403 when it admitted into evidence the following texts from Shawn,

during his conversation between Shawn and Appellant:

Shawn: An get a different phone get redd of your phone.
Get a prepaid phone. To much text an talking on
that phone.

Appellant: Bet

Shawn: You can get away with this just play your
cards right. I got to make sure nobody talkin.
you no officer west bitch ass no you.

Appellant: I know but he aint seen me in 7 months he
don’t even know I still be coming to the hood.
1200 Blocc hot boy.
***
Shawn: Did eneyone see you.

Appellant: No.

Shawn: Are you sure?

Appellant: Yea.

See (State Ex. 76, 77, 78, 79, 82, 83, 84, 85); (6 RR 18.)

Shawn’s texts within the context of this conversation are plainly

offered to show that Appellant was the shooter. But his actual comments

have very limited probative value. First, there is no indication that

Page 38 of 44
Shawn has any personal knowledge of the events giving rise to the

shooting. Any putative knowledge he may have had in connection with

the shooting may be based on hearsay, rumors, or speculation.

Second, the statements fail to show exactly what Shawn is talking

about. Shawn admonishes (1) Appellant to switch phones, (2) reassures

him that he can get away with “this;” (3) advises that he needs to ensure

no one is discussing the matter; and (4) inquires whether anyone saw him.

But nowhere does Shawn reveal what particular act Appellant committed

that needs to be kept secret.

Third, we have no assurance that it is in fact Shawn sending the

texts and not someone else. The statements could have come from with

anyone who may have had access to Shawn’s phone or his number.

By contrast, the evidence was extraordinarily prejudicial. The jury

was able to rely on hearsay by implied assertions. The evidence invites

the jury to irrationally find that Shawn either had personal knowledge of

the murder, or that Appellant had previously confessed to the murder.

But Shawn’s statements could have been based on circulating rumors, or

Shawn could have been talking about a different event altogether. The

Page 39 of 44
defense could not cross-examine Shawn regarding the subject matter of his

statements, nor what, if any, personal knowledge Shawn might have had

regarding the shooting.

The central issue of the trial was identity. The court can have no

assurance that the admission of such evidence “did not influence the jury.”

Solomon, 49 S.W. 3d at 356. In fact, record evidence shows that the jury

found the text messages important. In its first Jury Note, the jury

specifically requested photos of the text messages between defendant and

Shawn. See (CR 297.)

Furthermore, the prosecutor emphasized the text messages in its

closing argument in efforts to establish that Appellant was the shooter:

And that’s not all you have. These text messages . . .

***
That is a problem. You better get up there and lie about it.
You better come up with something. Get a different
phone–from Shawn. Get rid of your phone. Get a prepaid
phone. Too much text and talking on that phone. You know
what they’re talking about. And the Defendant says: You bet.
Got it. I’ll do that.

Shawn: This is not good—for the Defendant. You can get
away with this. Just play your cards right. I got to make sure
nobody talking. You know Officer West bitch ass, know you.
I know, but he aint’ seen me in seven months. He don’t even

Page 40 of 44
 know I still be coming to the hood. You can get away with it.
I didn’t have to ask the Defendant one question about these
text messages. They speak for themselves. In a moment of
weakness and candor, the Defendant and his brother sent
these back and forth to each other. I didn’t have to ask him
one question. You knew what these text messages meant.

See (6 RR 130-131.)

The State had only one eyewitness who could specifically identify

Appellant as the shooter. While there were two putative witnesses to the

shooting, only Patterson could identify Appellant. Rodriguez did not

recognize the shooter. Nor did the State have any physical evidence

linking Appellant to the shooting. Aside from Patterson, the government

had at best a circumstantial case in establishing that Appellant was the

shooter. Furthermore, the State’s only eyewitness was not credible.

Upon initially being questioned, Patterson denied having any knowledge

of the shooting. (4 RR 79-81.) She specifically admitted that she lied

when “Dante” had initially been the suspect. (4 RR 80-81.) It was only

after catching a felony case that Patterson decided to change her story and

point the finger at Appellant. (4 RR 96-99.)

Patterson’s story also differs from Rodriguez’s in several critical

aspects, and Rodriguez would not have any reason to be untruthful. First,

Page 41 of 44
Patterson testified that she did not see Appellant wearing any kind of

mask. (4 RR 87.) Second, Patterson testified that Tavira “went to the

ground” after the shooting. (4 RR 108.)

The text messages provided a crucial, though prejudicial link for the

jury. The brother’s comments would lead the jury to find “in some

irrational, but nevertheless indelible way” that Appellant had in fact been

the shooter. The jury might find this notwithstanding the fact that the (1)

the text messages themselves fail to actually to specify the particular

offense being discussed; (2) the messages fail to establish the basis for

Shawn’s personal knowledge; and (3) the messages fail to establish that

it had in fact been Shawn who sent the text messages.

For these reasons, the Court should find that the trial court

reversibly erred in failing to exclude Shawn’s text messages under FED. R.

EVID. 403.

Page 42 of 44
 PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Court will reverse the conviction and sentence.

Alternatively, he respectfully requests the Court grant him such other and

further relief as he may show himself deserving, at law and in equity.

Respectfully submitted,

/s/ William R. Biggs
William R. Biggs
WILLIAM R. BIGGS, PLLC
115 W. 2nd St., Suite 202
Fort Worth, TX 76102
817.332.3822 (t)
817.332.2763 (f)
wbiggs@williambiggslaw.com
TX Bar No. 24052832

Page 43 of 44
 CERTIFICATE OF COMPLIANCE

I certify that this Brief was prepared with WordPerfect X7, and that
according to that program’s word-count function, the entire document
contains words 8,496 words. Thus, the brief complies with Rule
9.4(i)(2)(B) of the Texas Rules of Appellate Procedure.

/s/ William R. Biggs
WILLIAM R. BIGGS

CERTIFICATE OF SERVICE

I hereby certify that on September 28, 2015, I filed a copy of the
foregoing electronically. The State will receive electronic notice of this
filing at coaappellatealerts@tarrantcounty.com. On September 29, 2015,
this brief will be sent via USPS mail to Debra Windsor, Tarrant County
District Attorney’s Office, 401 W. Belknap, 4th Floor, Fort Worth TX
76196. Finally, a copy of this motion and the accompanying brief will be
sent by certified mail to Jacob Jordann Bright, TDCJ No. 01985440,
Telford Unit,3899 Hwy 98, New Boston, TX 75570.

/s/ William R. Biggs
WILLIAM R. BIGGS

Page 44 of 44