Willie McDowell v. State

ACCEPTED
01-15-00483-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/11/2015 11:55:53 AM
CHRISTOPHER PRINE
CLERK

NO. 01-15-00483-CR

N THE FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
COURT OF APPEALS 8/11/2015 11:55:53 AM
CHRISTOPHER A. PRINE
OF THE FIRST SUPREME JUDICIAL DISTR工CT Clerk

WILLIE MCDOWELL,
Appel lant

V.

THE STATE OF TEXAS

Appeal in Cause No. 1439664

In the 182nd Court Of

Harris County, Texas

BRIEF OF APPELLANT

Hattie Sewell Shamon
Attomey For Appellant
6750 West Loop South, Suite 825
Be11aire, Texas 77401
(832) 767-1498
TBN 13155700
ORAL ARGUMENT WAIVED FAX (832) 767-1506
 IDENTIFICATION OF THE PARTIES

Pursuant to Tex. R. App. P. 38.1(a), a COmPlete list ofall parties to the

trial court’s judgment or order appealed from, and the names and addresses

Of all trial and appellate counsel.

Appellant or criminal defendant:

Willie McDowe11

Trial Counsel:

Lott Brooks
1314 Texas Street, Suite 710
Houston, Texas 77002

Appellate Counsel :

Hattie Sewell Sharmon
6750 West Loop South, Suite 825
Bellaire, Texas 77401

Counsel for the State:

Andrea Handley
1201 Franklin
Houston, Texas 77002

Trial Judge :

The Honorable Jearmine Barr
 TABLE OF CONTENTS

PAGE

IDENTIFICATION OF PARTIES

TABLE OF CONTENTS 町i

INDEX OF AUTHORITIES 闇

PRELIMENARY STATEMENT 1

STATEMENT OF THE CASE 1

IS SUE PRESENTED 2

Whether the Trial Court Erred In
Denying Appellant’s Motion For

Instructed Verdict

STATEMENT OF FACTS 2

SUMMARY OF THE ARGUMENT 2

ARGUMENT 3

PRAYER 10

CERTIFICATE OF SERVICE 間
 INDEX OF AUTHORITIES

CASE PAGE

Bonham v. State
680S.W.2d815,819
(Tex. Crim. App. 1984), Cert. denied
474U. S. 865 (1985)

Jackson v. Virginia
443U. S.307,319,
99 S. Ct2781, 2788-89 (1979)

Johnson v. State 10
23S.W.3dl,11
(Tex. Crim. App. 2000)

King v. State
29S.W.3d556,562
(Tex. Crim. App. 2000)

Madden v. State
799S.W.2d683
(Tex. Crim. App. 1990)

Wilson v. State
654S.W.2d465,471
(Tex. Crim. App. 1983)
 NO. 01-15-00483-CR

IN THE

COURT OF APPEALS

OF THE FIRST SUPREME JUDICIAL DISTRICT

WILLIAM MCDOWELL,
Appellant

V.

THE STATE OF TEXAS

Appeal in Cause No. 1439664

In the 182nd Court Of

Harris County, Texas

BR工EF OF APPELLANT

TO THE HONORABLE COURT OF APPEALS:

Comes now Willie McDowell, hereinafter referred to as Appella血,

and submits this briefpursuam to the Texas Rules of Appellate Procedure.

STATEMENT OF THE CASE

The Appe11ant was indicted for the felony offense of aggravated

robbery with a deadly weapon・ (CR. I - 8)・ To the charge, Appe11ant
entered a plea of not guilty. (RR. IⅡ - 8). The jury found Appellant was

guilty as charged in the indictment. (RR. IV - 32). The Court assessed

Appellant’s punishment at confinement in the Institutional Division of the

Texas Department of Criminal Justice for a period ofthirty-five years. (RR.

V - 42). Appe11ant乱ed a timely written notice ofappeal. (CR. 240).

ISSUES PRESENTED

Whether The Trial Court Erred In Denying Appe11ant’s Motion

For Instructed Verdict

STATEMENT OF FACTS

Pursuant to TEX. R. APP. P. 38.1(f), the Appe11ant states the

following facts pertinent to the issues presented:

It was alleged that Appeuant and another unknown individual entered

complainant,s apartment on or about November 23, 2012, and robbed her at

gunpoint・ However’Appellant,s宜ngeIPrints were not on any items

recovered including the fiream.

SUMMARY OF THE ARGUMENT

Appe11a血submits that the evidence presented by the state failed to

prove beyond a reasonable doubt that he committed the offchse of

aggravated robbery. There was no physical proof whatsoever’and the

testimony of the witnesses was inconsistent in substantially every mamer.

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 ARGUMENT

The indictment alleged that Appe11ant:

. ‥ On Or about November 23, 2012, did then and there unlawfully,

While in the course of committing theft of property owned by Itashia

Cordin, and with intent to obtain and maintain controI of the property,

intentiona11y and knowingly threaten and place Itashia Cofoin in fear

Of imminent bodily ir互ury and death, and the Defendant did then and

there use and exhibit a deadly weapon, namely, a fiream.

The State’s evidence presented at trial does not support a宜nding of

guilt in an aggravated robbery case. The State had血e burden of provmg

beyond a reasonあle doubt that Appe11a血COmmitted the aggravated robbery

on November 23, 2012. The evidence presented was testimony of

complainant and two o純cers. Complainant tes舶ed that she had never seen

Appe11ant, and that she had seen Appellant at least one time before the

alleged incident・ Both camot be true. She tes舶ed in part as fo11ows:

短DEFENSE COUNSEL: And I血ink it,s your testimony that you had

never seen this man before?

ITASHIA CORBEN: No.

DEFENSE COUNSEL: You had never seen him before?

ITASHIA CORBIN: Never seen him before.
 DEFENSE COUNSEL: Okay. Now correct me if I’m wrong, yOu

had told the police o触cer that you thought you might have seen him

SOmeWhere around the apartments. Is that true or not true?

ITASHIA CORBEN: Yes, Walking around our apartments.

DEFENSECOUNSEL: Okay. So you think you had seen him

before?

ITASHIA CORBIN: Yes.

DEFENSE COUNSEL: All right. But you just told the ladies and

gentlemen ofthe jury that you had never seen him before, right?

ITASHIA CORBEN: Right, but I seen him before一-.

DEFENSE COUNSEL: But in fact ○ ○

ITASHIA CORBEN:  - - One time.

DEFENSE COUNSEL: In fact, yOu had seen him before, hadn’t

you?

ITASHIA CORBIN: Yes.” (CR. IⅡ - 50, 51).

There was also very mCOnSistent testimony from Itashia Corbin,

COmPlainant, regarding her a11eged confrontation w皿Appellant at her

apartment・ She testified during cross examination in part as follows

COnCeming the confrontation.

4
 “DEFENSECOUNSEL‥ Well, nOW, yOu tOld the ladies and

gentlemen of the jury that he shot in the air and you said, “Boom,

boom, boom.”

ITASHIA CORBIN: Yes. I was ruming behind him・

DEFENSE COUNSEL: Okay.

ITASHIA CORBEN: He tumed around and he shot in the air,

boom, boom, boom.

DEFENSE COUNSEL: All right. So he didn’t shoot at you?

ITASHIA CORBEN: No, he didn’t shoot at me.

DEFENSE COUNSEL: Okay. And how many times did the gun

宜re?

ITASHIA CORBIN: Maybe like three.

DEFENSE COUNSEL: Are you sure?

ITASHIACORBIN: Yes, tO try tO SCare me SO I could stop

Chasing him.

DEFENSE COUNSEL: Are you sure it was three times?

ITASHIA CORBIN: Yes, Sir. I’m sure it was three times.” (RR.

IⅡ-58, 59).

All of this creates reasonable doubt as to whether there was an

aggravated robbery at all against Itashia Corbin. O餌cer Paul Lowrey
testified during direct examination as follows concemmg the a11eged

gun shot/gun s hots :

“PROSECUTOR: Did she tell you how many rounds were宜red at

her?

PAUL LOWERY: I think she stated one. Let me check my report.

PROSECUTOR: Would it help you refresh you recollection,

O綿cer, tO reView your report for that?

PAUL LOWREY: Yes, ma’am.

PAUL LOWREY: Fired one round.” (RR. IⅡ - 88).

Complainant’s testimony concemmg how Appellant entered her

apartment was also told in different versions. There should have been doubt

concemmg an actually robbery occumng. During cross examination, Itashia

Corbin testi宜ed in part as follows.

“PROSECUTOR: Okay. Tell the ladies and gentlemen of the jury:

Whatうif anything happened about that time?

ITASHIA CORBIN: I heard a knock on the door. I didn’t look

outside. I was like,負Maybe it’s my friends or somebody." So, I

opened the door. It was two black males that came to the door・” (RR.

IⅡ-21).

6
 However, during cross examination of O能cer Paul Lowery, he

testified conceming the alleged entry of Appellant into Complainant’s

apartment. That testimony was in part as follows:

“DEFENSE COUNSEL: Okay. And you were told that Ms. Corbin

had heard a noise?

PAUL LOWREY: Yes, Sir.

DEFENSE COUNSEL: Okay. Now, did she describe the noise for

you? Or what understanding did you come to what kind ofnoise was

this?

PAUL LOWREY: A thud is what I thought.

DEFENSE COUNSEL: Okay. And then the door burst open?

PAUL LOWREY: It did.

DEFENSE COUNSEL‥ Okay. So she never reported to you that she

in fact opened the door, did she?

PAUL LOWREY: No, Sir.

DEFENSE COUNSEL: All right. She told you that someone kicked

the door in, Or that is the impression that she gave you.

PROSECUTOR: We11, I’m going to object, yOur Honor・ That’s a

misrepresentation ofthe facts or any testimony in this case that a door

WaS kicked open.

7
 THE COURT: We11, I’11 ask you to rephrase your question.

DEFENSE COUNSEL: Okay.

DEFENSE COUNSEL: What was your understanding of how the

door was opened?

PAUL LOWREY: I -I -I’m not sure血at I rea11y know. I’m not sure

that the complainant knew. From the way I understood it, She heard a

thud and then saw two suspects come through the door.” (RR. IⅡ -

104, 105).

Paul Lowery also testi宜ed during direct examination conceming the

alleged entry into the apartment as follows:

“PROSECUTOR: Would you tell the ladies and gentlemen of the

jury then what is it that Ms. Corbin told you血en at that point?

PAUL LOWREY: She told me that she was at home and she had her

daughter there and she heard something at the front door. All of a

Sudden the door burst open.” (RR. - 86, 87).

Both versions certainly could not have been true. Again, the created

reasonable doubt. Marion Williams Green, a retired sergeant with the

Houston Police Department, further testified that Appellant’s fingerprints

Were nOt located in the vehicle which had been described in the robbery nor

On the gun that was allegedly used. Yet the Court did not grant Appellant’s

8
motion for an instructed verdict・ There were basically two versions to all of

Complainant’s testimony.

The critical inquiry invoIved in the review of factual su純ciency lS

Whether, after viewing the evidence in a light most favorable to the

PrOSeCution, any rational trier of fa,Ct COuld have found the essential elements

Ofthe crime beyond a reasonable doubt. Bonham v. S幼te, 680 S. W. 2d 815,

819 (Tex・ Crim. App. 1984), Cert. denied, 474 U. S. 865 (1985); Wilson v.

State, 654 S. W. 2d465, 471 (Tex. Crim. App. 1983).

Appe11ant asserts that the evidence presented was thereby factually

insu触cient to prove a prima facie case ofguilt by the State. A challenge to

the court’s ruling on the motion for an instructed verdict is a challenge to the

Su触ciency of the evidence to support the conviction. MZz(娩n v. S細わ, 799

S. W. 2d 683 (Tex. Crim・ App. 1990). Appellant hereby submits that the

evidence presented was both legally and factually insu飾cient to support a

finding that he committed aggravated robbery.

In evaluating the legal su触ciency of the evidence, the evidence must

be viewed in the light most favoral)1e to the verdict and detemine whether

any rational trier of fact could have found the essential elements of the

Offense beyond a reasonable doubt. King v.級e吟29 S. W. 3d 556, 562

(Tex. Crim. App. 2000) (citing Jdckson v.脇ginia, 443 U. S. 307, 319, 99

9
S. Ct. 2781, 2788-89 (1978)). A factual su能ciency review is by reviewing

a11 the evidence in a neutra1 1ight to detemine whether the proof of guilt is

SO Obviously weak as to undemine confidence in the jury’s detemination,

Or the proof of guilt, a皿ough adequate if taken alone, is greatly outweigh by

COntrary PrOOf Jbhnson v.部ate, 23 S. W. 3d l, 1 1 (Tex. Crim. App. 2000).

In the case at bar, the State’s witnesses testi宜ed to completely

different versions of what could have possibly occurred at Complainant,s

apartment on November 23, 2012. Complainant certainly was not a credible

Witness. Appellant submits that considering all of the inconsistent testimony

and evidence presented by the State, the motion for instructed verdict should

have been granted.

PRAYER

The Appe11ant prays that this Honorable Court consider the foregomg

issue presented, reVerSe the trial court’s judgment and order an acquittal as

the law and justice demands.

Respectfully submitted,

Hattie Sewell Sharmon
Attomey For Appe11ant
6760 West Loop South, Suite 825
Be11aire, Texas 77401
(832) 767-1498

10
 FAX (832) 767-1506
TBN 13155700
hattieshamon5 2@yahoo. com

CERTIFICATE OF SERVICE

I hereby certify that on this day of August 2015, I

electronically乱ed the foregomg With the Clerk of the Court using the

eFilingTXCourts system which will send noti丘cation of such乱ing to the

following:

Harris County District Attomey’s O触ce.

埋墨壁墨豊国星型回国国璽害
Hattie Sewell Sharmon

CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this brief

COntains 4 5gq words. This is a computer-generated document created

in Microsoft Word, uSing 14-POi血typeface for all text・ In making this

Certificate of compliance, I am relying on the word court provided by the

SOftware used to prepare the document.

珊
Hattie Sewe11 Shamon

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