ACCEPTED
03-14-00654-CR
7286107
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/8/2015 10:54:21 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00654-CR
In the Court of Appeals for the Third District FILED IN
3rd COURT OF APPEALS
Austin, Texas AUSTIN, TEXAS
10/8/2015 10:54:21 AM
James Palacio, JEFFREY D. KYLE
Clerk
Appellant
v.
The State of Texas,
Appellee
Appeal from the 427th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-14-904021
Honorable Judge Jim Coronado, Presiding
STATE’S BRIEF
Rosemary Lehmberg
District Attorney
Travis County, Texas
Matthew Foye
Assistant District Attorney
State Bar No. 24043661
P.O. Box 1748
Austin, Texas 78767
512-854-9400 (phone)
512-854-4810 (fax)
Matthew.Foye@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
Oral argument is conditionally requested
TABLE OF CONTENTS
INDEX OF AUTHORITIES...................................................... iii
STATEMENT REGARDING ORAL ARGUMENT ...................... iv
NOTE CONCERNING ABBREVIATIONS ................................ iv
SUMMARY OF THE STATE’S ARGUMENT ............................. 1
STATE’S ARGUMENT ............................................................. 2
Reply to Point of Error............................................................ 2
The evidence is sufficient to prove that Appellant used or
exhibited a deadly weapon during the commission of the offense.
................................................................................................ 2
Standard of Review for Sufficiency......................................... 3
Evidence Supporting a Deadly Weapon.................................. 4
Conclusion ........................................................................... 7
PRAYER ................................................................................. 7
CERTIFICATE OF COMPLIANCE AND SERVICE.................... 8
ii
INDEX OF AUTHORITIES
Cases
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................ 3
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) .................... 3
Jackson v. Virginia, 443 U.S. 307 (1979)........................................ 3
Statutes
Tex. Penal Code §1.07................................................................... 4
iii
STATEMENT REGARDING ORAL ARGUMENT
The State believes that oral argument is unnecessary because
the facts and legal arguments are adequately presented in the briefs
filed by the parties. Therefore, the State is not requesting oral
argument. However, if the Court grants Appellant’s request for oral
argument, the State respectfully requests that the State also be
permitted oral argument.
NOTE CONCERNING ABBREVIATIONS
In this brief, the State refers to the Clerk's Record as “CR”
followed by the page number (e.g., CR 123). The State refers to the
Reporter's Record as “RR” followed by the volume and then by the
page number (e.g., RR v.4, 567). The State refers to trial exhibits by
their Exhibit label and, if the exhibit is an audio or video recording,
will also notate the timestamp at which the reference begins (e.g.,
State Ex. 1, 00:23:45).
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No. 03-14-00654-CR
In the Court of Appeals for the Third District
Austin, Texas
James Palacio,
Appellant
v.
The State of Texas,
Appellee
Appeal from the 427th Judicial District Court
Travis County, Texas
Cause Number D-1-DC-14-904021
Honorable Judge Jim Coronado, Presiding
STATE’S BRIEF
To the Honorable Third Court of Appeals:
Now comes the State of Texas and files this brief in response
to that of Appellant.
SUMMARY OF THE STATE’S ARGUMENT
Point of Error: Appellant argues that the evidence is insufficient to
prove a deadly weapon was used or exhibited during the
commission of the offense.
1
Reply: In the light most favorable to the verdict, the evidence
and reasonable inferences show that Appellant broke almost every
rib in Ms. McKee’s body using his hand, arm, body, or the ground;
that these injuries led to pneumonia and cardiac arrest; and that
Ms. McKee died from these complications. Therefore, the evidence is
legally sufficient to prove that Appellant used or exhibited his hand,
arm, body, or the ground as a deadly weapon in this case.
STATE’S ARGUMENT
REPLY TO POINT OF ERROR
The evidence is sufficient to prove that Appellant used or
exhibited a deadly weapon during the commission of the
offense.
The deadly weapon allegation in the indictment in this case
read as follows:
James Palacio did then and there use or
exhibit a deadly weapon, to wit: a hand, an
arm, a body, and the ground, which in the
manner of its use or intended use was capable
2
of causing serious bodily injury during the
commission of said offense…
CR 5.
Standard of Review for Sufficiency
In reviewing the sufficiency of the evidence to support a
conviction, all of the evidence is viewed in the light most favorable
to the prosecution in order to determine whether any 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);
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
Courts should “determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all
the evidence when viewed in the light most favorable to the verdict.”
Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). When
the record supports conflicting inferences, the presumption is that
the factfinder resolved the conflicts in favor of the prosecution and
courts should defer to that determination. Jackson, 443 U.S. at
326.
3
Evidence Supporting a Deadly Weapon
A deadly weapon is defined as “anything that in the manner of
its use or intended use is capable of causing death or serious bodily
injury.” Tex. Penal Code §1.07(17)(B). Serious bodily injury is
“bodily injury that creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily organ. Tex. Penal Code
§1.07(46).
Appellant told police that he grabbed Nicole McKee and they
fell. Appellant landed on top of Ms. McKee. He felt his elbow go up
into her chest and he felt her ribs move. Appellant said that he
broke something when they hit the ground and that Ms. McKee
gasped and was having trouble breathing. RR v.7, 100-01.
Appellant said “that probably could have killed her.” State Ex. 20B
(00:28:16).
Appellant eventually called EMS. Paramedic Stephen Schiller
testified that Ms. McKee was “unresponsive and pulseless, not
breathing.” RR v.6, 251. Ms. McKee was in cardiac arrest, and
Schiller gave her four doses of epinephrine. RR v.6, 257. Emergency
4
personnel performed CPR on Ms. McKee for twenty minutes and
were able to resuscitate her. RR v.6, 251. Ms. McKee, however,
never regained consciousness. RR v.6, 265.
Travis County Sheriff’s Office Detective Jim Anderson testified
that he stayed at the hospital where Ms. McKee was being treated
for several hours and that “they were losing pulse several times and
had to revive her several times.” RR v.7, 28. Ms. McKee did not
survive the night. Id. He also testified that, based on his training
and experience, a hand, an arm, a body, and the ground could, in
the manner if their use, cause death or serious bodily injury. RR
v.7, 60-1.
Medical Examiner Dr. Satish Chundru testified that there was
bruising all over Ms. McKee’s body. RR v.8, 78-90. Ms. McKee had
seventeen fractured ribs. RR v.8, 92-4. Dr. Chundru stated that the
rib fractures were “pretty severe” and that a person with those
injuries “would have difficulty breathing” and “a lot of pain.” RR v.8,
96. Dr. Chundru testified that cracked ribs can be life threatening
and that someone with cracked ribs who does not receive treatment
can develop pneumonia, an infection of the lungs. RR v.8, 110. He
testified that Ms. McKee had pneumonia. RR v.8, 97. Dr. Chundru
5
further testified that the cause of death was “complications of blunt
force chest injuries.” RR v.8, 104. He testified that hands, arms, a
body, or the ground could each constitute a deadly weapon if used
to cause her injuries. RR v.8, 104-5.
Dr. Chundru also testified that Ms. McKee’s pneumonia and
injuries could not have resulted from a previous car accident
because “that would be way too old,” and either the pneumonia
would have resolved or she would have passed away back then. RR
v.8, 98-9. Dr. Chundru testified that her injuries did not come from
heroin use either, as the rare times heroin–using patients have
pneumonia it’s “just starting to start up” while Ms. McKee’s
pneumonia was “widespread and everywhere.” RR v.8, 99-100.
Further, there was no heroin in Ms. McKee’s body. RR v.8, 102. Dr.
Chundru’s testimony also disproved the the theory that Ms. McKee
could have suffered broken ribs during CPR which caused the
pneumonia. Dr. Chundru testified that one of the first things the
hospital did upon receiving Ms. McKee was an X-ray which showed
the pneumonia already well developed and a person cannot develop
pneumonia if they are “unresponsive or dead.” RR v.8, 103.
6
Conclusion
In the light most favorable to the verdict, the evidence and
reasonable inferences drawn therefrom show that Appellant broke
almost every rib in Ms. McKee’s body using his hand, arm, body, or
the ground; that these injuries led to pneumonia and cardiac arrest;
and that Ms. McKee died from these complications. Therefore, the
evidence is legally sufficient to prove that Appellant used or
exhibited his hand, arm, body, or the ground as a deadly weapon in
this case.
PRAYER
The State requests that the Court overrule Appellant’s point of
error and affirm the trial court’s judgment.
Respectfully submitted,
Rosemary Lehmberg
District Attorney
Travis County
/s/ Matthew Foye
Matthew Foye
Assistant District Attorney
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State Bar No. 24043661
P.O. Box 1748
Austin, Texas 78767
512-854-9400 (phone)
512-854-4810 (fax)
Matthew.Foye@traviscountytx.gov
AppellateTCDA@traviscountytx.gov
CERTIFICATE OF COMPLIANCE AND SERVICE
I certify that this brief contains 1,051 words, based upon the
computer program used to generate this brief and excluding words
contained in those parts of the brief that Texas Rule of Appellate
Procedure 9.4(i) exempts from inclusion in the word count, and that
this brief is printed in a conventional, 14-point typeface.
I further certify that, on the 8th day of October, 2015, a true and
correct copy of this brief was served, by U.S. mail, electronic mail,
telephonic document transmission, or electronically through the
electronic filing manager, to Appellant’s attorney, Linda Icenhauer–
Ramirez, 1103 Nueces Street, Austin, Texas, 78701, ljir@aol.com.
/s/ Matthew Foye
Matthew Foye
Assistant District Attorney
8