ACCEPTED
03-16-00133-CR
13147483
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/10/2016 11:50:49 AM
JEFFREY D. KYLE
CLERK
No. 03-16-00133-CR
In the FILED IN
3rd COURT OF APPEALS
COURT OF APPEALS AUSTIN, TEXAS
For the 10/10/2016 11:52:00 AM
THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
at Austin Clerk
______________________________________
On Appeal from the 264th Judicial District Court of
Bell County, Texas
Cause Number 74451
______________________________________
KEEVIN DASHAWN BYRD, Appellant
v.
THE STATE OF TEXAS, Appellee
_____________________________________
ANDERS BRIEF IN SUPPORT OF
COUNSEL’S MOTION TO WITHDRAW
_____________________________________
Counsel for Appellant KRISTEN JERNIGAN
Keevin Dashawn Byrd STATE BAR NUMBER 90001898
207 S. AUSTIN AVE.
GEORGETOWN, TEXAS 78626
(512) 904-0123
(512) 931-3650 (Fax)
kristen@txcrimapp.com
ORAL ARGUMENT NOT REQUESTED
IDENTIFICATION OF PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the
names of all interested parties is provided below so the members of this Honorable
Court may at once determine whether they are disqualified to serve or should
recuse themselves from participating in the decision of this case.
Appellant:
Keevin Dashawn Byrd
Counsel for Appellant:
Thomas Seigman (at trial)
2025 Memory Lane, Suite 400
Harker Heights, Texas 76548
Kristen Jernigan (on appeal)
207 S. Austin Ave.
Georgetown, Texas 78626
Counsel for Appellee, The State of Texas:
Henry Garza
Bell County District Attorney
Fred Burns
Suzanne Wohleb
Assistant District Attorneys
P.O. Box 540
Belton, Texas 76513
Trial Court Judge:
The Honorable Martha Trudo
ii
TABLE OF CONTENTS
IDENTIFICATION OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . .vi
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
PROFESSIONAL EVALUATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
NOTICE TO APPELLANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
CERTIFICATE OF COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
iii
INDEX OF AUTHORITIES
CASES
Anders v. California, 386 U.S. 738 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . .14
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . .17, 18
Fairow v. State, 943 S.W.2d 895 (Tex. Crim. App. 1997) . . . . . . . . . . . . .14, 15, 16
Gaines v. State, 479 S.W.2d 678 (Tex. Crim. App. 1972) . . . . . . . . . . . . . . . . . . .13
Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989) . . . . . . . . . . . . . . . . . . . 17
Hawkins v. State, 112 S.W.3d 340 (Tex. App.–Corpus Christi 2003) . . . . . . . . . .10
Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18
Jacobs v. State, 787 S.W.2d 397 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . .17
Jordan v. State 495 S.W.2d 949 (Tex. Crim. App. 1973) . . . . . . . . . . . . . . . . . . . 13
Lafleur v. State, 106 S.W.3d 91 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . .12
Lum v. State, 903 S.W.2d 365 (Tex. App. -- Texarkana 1995) . . . . . . . . . . . . . . . 15
McCoy v. Court of Appeals of Wisconsin, District I, 486 U.S. 429 (1988) . 9, 10, 11
McMillan v. State, 754 S.W.2d 422 (Tex. App. -- Eastland 1988) . . . . . . . . . . . . 14
Tucker v. State, 990 S.W.2d 261 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . .15
Wilson v. State, 40 S.W.3d 192 (Tex. App. - Texarkana 2001) . . . . . . . . . . . . .9, 10
iv
STATUTES AND RULES
TEX. CODE CRIM. PRO. Art. 37.07 § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
TEX. PENAL CODE § 6.03(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
TEX. PENAL CODE § 12.33(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TEX. PENAL CODE § 19.04(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
TEX. R. APP. P. 33.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
TEX. R. EVID. 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14, 15, 16
v
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 39.1, oral argument is not
applicable in the present case.
vi
No. 03-16-00133-CR
In the
COURT OF APPEALS
For the
THIRD SUPREME JUDICIAL DISTRICT
at Austin
______________________________________
On Appeal from the 264th Judicial District Court of
Bell County, Texas
Cause Number 74451
______________________________________
KEEVIN DASHAWN BYRD, Appellant
v.
THE STATE OF TEXAS, Appellee
_____________________________________
ANDERS BRIEF IN SUPPORT OF
COUNSEL’S MOTION TO WITHDRAW
_____________________________________
STATEMENT OF THE CASE
On July 1, 2015, Appellant was indicted for the felony offense of
manslaughter. (CR: 4). On February 3, 2016, a jury found Appellant guilty of
manslaughter, as alleged in the indictment, and assessed punishment at eight years
confinement in the Texas Department of Criminal Justice. (CR: 53). Appellant
timely filed Notice of Appeal on February 4, 2016.1 (CR: 47). This appeal
1
Once appointed, the undersigned also filed Notice of Appeal on February 29, 2016. (CR:
64).
1
results.
STATEMENT OF FACTS
At trial, Jennifer Lee told the jury that she is the mother of the victim in this
case, Christopher Harvey. (RR6: 15). On February 21, 2015, Harvey called Lee
to pick him up because his shift at work was over. (RR6: 18). Lee traveled
down Highway 2410 in Harker Heights and observed an accident site. (RR6: 19).
Lee passed the scene to pick Harvey up from his workplace, but when she arrived,
he was not there. (RR6: 20). Lee was later notified that Harvey had been killed
in the accident. (RR6: 21). On cross-examination, Lee agreed that where the
accident occurred was very dark. (RR6: 22).
Chanise Epps stated that on the night of February 21, 2015, she traveled with
her friend, Terrence Kidd, in her vehicle to an area in Harker Heights to get
something to eat. (RR6: 24-25). Epps’s vehicle headlights were on and she was
traveling approximately thirty-five miles per hour. (RR6: 32). When they were
driving down Knightsway, also known as Highway 2410, her vehicle was struck
from behind by another vehicle and she lost control. (RR6: 25-26). Epps’s car
was “totaled” after veering off of the road and striking a tree. (RR6: 26, 28).
She never saw a pedestrian walking on or near the roadway. (RR6: 33). On
cross-examination, Epps related that there were no street lights in the area where
2
the accident occurred and it was very dark. (RR6: 37).
Terrence Kidd told the jury that on February 21, 2015, he was traveling in
Epps’s vehicle when they were struck from behind. (RR6: 45). Epps lost
control of the car after the vehicle was struck on the right rear side of the bumper.
(RR6: 46). They veered off the road and ended up in a parking lot. (RR6: 47).
Kidd never saw a pedestrian in the roadway. (RR6: 46).
Dominic Cummings stated that on February 21, 2015, he was traveling in his
vehicle with his wife and daughter when he encountered a blue Honda vehicle at a
stoplight. (RR6: 52-53). When the light turned green, the Honda pulled in front
of Cummings’s vehicle and proceeded down Highway 2410. (RR6: 54).
Cummings estimated that the Honda was traveling faster than his vehicle. (RR6:
56). Cummings then saw the Honda strike a Crown Victoria. (RR6: 59).
Cummings thought he saw someone ejected from the Honda after it struck the
Crown Victoria and flipped over. (RR6: 61-62). On cross-examination,
Cummings stated that he never saw a pedestrian on or near the roadway. (RR6:
70). On re-direct, Cummings was allowed to testify that the Honda was driving
in a dangerous, unsafe, reckless manner. (RR6: 73).
Alisa Cummings told the jury that on February 21, 2015, she was traveling
with her husband and her daughter in their vehicle when she observed a Honda
3
vehicle speed up and then slow down. (RR6: 78). The driver of the vehicle
applied the brakes, tried to pass and almost hit a curb. (RR6: 78-79). Alisa was
allowed to testify that the driver was driving “recklessly” and she hoped he was not
drunk. (RR6: 79). Alisa watched the Honda speed up and told her husband
“He’s going to hit somebody.” (RR6: 80). The Honda then struck a Crown
Victoria on the right bumper which caused the vehicle to veer to the left. (RR6:
82). The Honda flipped and landed. (RR6: 84). Alisa saw a person fly
through the air and later land in a parking lot. (RR6: 84-85). On
cross-examination, Alisa denied meeting with the prosecutor before trial, but
acknowledged that in her written statement to police, she stated that the Honda
struck the Crown Victoria on the left side, not the right side as she testified at trial.
(RR6: 91, 93). On re-direct examination, the prosecutor elicited the fact that he
and Alisa had actually met at least twice before trial, including one time at the
scene of the accident months after the accident had occurred. (RR6: 94-95).
Raphael Baumgartel, an officer with the Harker Heights Police Department,
told the jury that on 10:04 p.m. on February 21, 2015, he was dispatched to an
accident on West Knightsway. (RR7: 9-10). Baumgartel arrived at the accident
scene at 10:07 p.m. and was advised that someone had been ejected from one of
the vehicles and was laying in the roadway. (RR7: 10-11). Baumgartel
4
identified Appellant as the driver of the Honda and reported that loud music was
coming from his vehicle. (RR7: 13-14). According to Baumgartel, Appellant
admitted that he was the driver of the Honda, that the vehicle in front of him was
moving too slow, and “it was his fault.” (RR7: 15). Baumgartel did not smell
alcohol or marijuana coming from Appellant or his vehicle. (RR7: 16-17). On
cross-examination, Baumgartel stated that the road where the accident occurred
was not well lit. (RR7: 25).
Clyde Hicks, an accident investigator with the Harker Heights Police
Department stated to the jury that he was dispatched to the accident scene in this
case on February 21, 2015 and arrived at 10:36 p.m. (RR7: 47). Hicks spoke
with Appellant who acknowledged he was the driver of the Honda and was by
himself at the time of the accident. (RR7: 51). Based on his investigation,
Hicks opined that the left front of the Honda struck the Crown Victoria from
behind. (RR7: 55). Hicks also opined that the right front of the Honda struck
Harvey with enough force to knock him out of his shoes and to rip off the
passenger side mirror. (RR7: 55, 68, 110). Hicks stated that the vehicle driven
by Appellant was driven in a way that could, and did, cause death or serious bodily
injury. (RR7: 113-14). On cross-examination, Hicks admitted that he did not
obtain a warrant to arrest Appellant until more than two months after the accident
5
occurred in this case and when he arrested Appellant, it was for the offense of
criminally negligent homicide. (RR7: 114-15, 138). Hicks admitted further that
the conditions on the roadway the night of the accident were “[d]ark, not lighted,”
and Harvey was wearing a black shirt and dark blue jeans. (RR7: 124, 128).
Finally, Hicks admitted that despite his testimony on direct examination, he could
not state conclusively where Harvey was standing when he was impacted by
Appellant’s vehicle and that there was no paint transfer from Appellant’s vehicle to
Harvey’s body. (RR7: 138, 146).
Dr. Jeffrey Barnard testified that he is the Chief Medical Examiner for
Dallas County and performed the autopsy on Harvey’s body. (RR7: 74). Dr.
Barnard testified that Harvey died virtually instantly when his brain stem was
severed. (RR7: 77-78). Dr. Barnard concluded that Harvey’s cause of death
was “accident.” (RR7: 79).
Garland Keith Potvin, an officer with the Killeen Police Department, stated
to the jury that on March 4, 2015, he downloaded data from a crash data event
recorder taken from Appellant’s vehicle pursuant to a court order. (RR7: 151).
The data from the recorder indicated that four seconds before impact with Epps’s
vehicle, Appellant’s vehicle was traveling ninety-seven miles per hour. (RR7:
159). Three seconds before impact, Appellant’s vehicle was traveling ninety-nine
6
miles per hour. (RR7: 160). Two seconds before impact, Appellant’s vehicle
was traveling 101 miles per hour. (RR7: 160). One second before impact,
Appellant’s vehicle was traveling 103 miles per hour. (RR7: 160). The brakes
on Appellant’s vehicle were applied one-half second before the impact with Epps’s
vehicle. (RR7: 161). A second impact was recorded less than four seconds
later. (RR7: 164). At the close of Potvin’s testimony, the State and the Defense
both rested and closed. (RR7: 185, 189).
The jury deliberated and found Appellant guilty of the offense of
manslaughter. (RR7: 214). At the punishment phase of trial, Appellant
stipulated that he was previously placed on deferred adjudication probation for the
misdemeanor offense of possession of marijuana and that he previously admitted
his guilt to a charge of possession of a controlled substance, but that charge was
dismissed pursuant to a plea bargain agreement. (RR8: 18). The State then
introduced a written statement made by Appellant on February 23, 2016, in which
he alleged that he was driving the speed limit prior to the accident and Epps
swerved around him and slammed on her brakes, which caused the accident in this
case. (RR8: 23-24).
Dorothy Byrd testified that Appellant is her son and at the time of trial, was
twenty-three years old. (RR8: 27). Appellant was four years old when his
7
father abandoned him, his mother, and his four siblings. (RR8: 28-29).
Appellant and his family had to move into a one-bedroom apartment and did not
have enough money to turn on the heat in the winter or the air conditioning in the
summer. (RR8: 30-31). When Appellant started school, he would not engage
with the other children so Byrd pulled Appellant out of school. (RR8: 33). She
later sought treatment for Appellant who was diagnosed with severe depression
and anxiety. (RR8: 34). Appellant moved to Pennsylvania when he was a
teenager and obtained his high school diploma. (RR8: 36). While, there, he was
shot in the abdomen while walking down the street. (RR8: 36-37). Appellant
suffered long term effects from the shooting and was diagnosed with Post
Traumatic Stress Disorder. (RR8: 38-39). Byrd related that Appellant has
expressed remorse to her since the accident in this case. (RR8: 42).
Michael Lee told the jury that Harvey was his stepson and lived with him
and his wife. (RR8: 50). Harvey had a daughter who he spent time with and
was working full-time while obtaining his GED. (RR8: 50-51). Michael stated
that Harvey’s death had impacted his family and that he did not believe Harvey’s
mother would ever be able to overcome his death. (RR8: 52).
After deliberating, the jury assessed Appellant’s punishment at eight years in
prison. (RR8: 72). The Court also entered a deadly weapon finding pursuant to
8
the jury’s verdict in the guilt or innocence phase of trial. (RR8: 73).
ISSUE PRESENTED
Whether the Instant Appeal Is Frivolous and Without Merit, Such That
the Undersigned Should Withdraw as Counsel.
A criminal defense attorney’s duty is to zealously represent the interests of
his or her client on appeal. Anders v. California, 386 U.S. 738, 744 (1967). If
the appointed attorney finds the “case to be wholly frivolous, after a conscientious
examination of it, he should so advise the court and request permission to
withdraw.” Anders, 386 U.S. at 744.
Both retained and appointed appellate attorneys have a “duty to withdraw”
as counsel when they conclude that an appeal would be frivolous, but appointed
counsel “is presented with a dilemma because withdrawal is not possible without
leave of court, and advising the court of counsel’s opinion that the appeal is
frivolous would appear to conflict with the advocate’s duty to the client.” McCoy
v. Court of Appeals of Wisconsin, District I, 486 U.S. 429, 437 (1988). “It is well
settled, however, that this dilemma must be resolved by informing the court of
counsel’s conclusion.” Id. “Under Anders and its progeny, if an appointed
attorney concludes that his client’s appeal is without merit, he or she must (1) so
inform the court, (2) seek permission to withdraw, and (3) file a brief ‘referring to
anything in the record that might arguably support the appeal.’” Wilson v. State,
9
40 S.W.3d 192, 196 (Tex. App. - Texarkana 2001).
As the Supreme Court explained, the attorney’s motion to withdraw must,
however, be accompanied by a brief referring to anything in the record that might
arguably support the appeal. Anders, 386 U.S. at 744. A copy of counsel’s brief
should be provided to the Appellant and time should be allowed for him to raise
any points that he chooses. Id. Then, the Court, and not counsel, decides, after
a full examination of all the proceedings, whether the case is wholly frivolous.
Id. If it so finds, it may grant counsel’s request to withdraw and dismiss the
appeal insofar as federal requirements are concerned, or proceed to a decision on
the merits, if state law so requires. Anders, 386 U.S. at 744. In Texas, an Anders
brief need not specifically advance “arguable” points of error if counsel finds none,
but it must provide record references to the facts and procedural history and set out
pertinent legal authorities. See Hawkins v. State, 112 S.W.3d 340, 343-344 (Tex.
App.–Corpus Christi 2003). The attorney’s duty to withdraw is based upon his or
her professional and ethical responsibilities as an officer of the court not to burden
the judicial system with false claims, frivolous pleadings, or burdensome time
demands. McCoy, 486 U.S. at 436. The Supreme Court instructs: “Neither paid
nor appointed counsel may deliberately mislead the court with respect to either the
facts or the law, or consume the time and the energies of the court or the opposing
10
party by advancing frivolous arguments. An attorney, whether appointed or paid,
is therefore under an ethical obligation to refuse to prosecute a frivolous appeal.”
Id.
PROFESSONAL EVALUATION
Counsel would respectfully show the Court of Appeals that the instant
appeal is frivolous and without merit, for the reasons outlined below. Further, the
trial court had jurisdiction over the present felony case and venue was proper in
Bell County, where the offense was alleged to have occurred. Appellant was
convicted of the offense of manslaughter. See TEX. PENAL CODE § 19.04(a).
Appellant was sentenced to eight years in prison. The punishment range for that
offense is that of a second degree felony. See TEX. PENAL CODE § 19.04(b).
POTENTIAL ERRORS CONSIDERED BY COUNSEL
Counsel considered the following point of errors on appeal:
(1) Whether the deadly weapon finding entered by the trial court
was supported by the jury’s verdict.
In this case, the jury’s verdict on the issue of whether a deadly weapon was
used or exhibited during the commission of the offense is contained within the
application paragraph of the jury charge, and not a special issue instruction or
verdict. Therefore, the question is whether that implied finding is sufficient to
support the Court’s deadly weapon finding included in the judgment.
11
In Lafleur v. State, the Court of Criminal Appeals held that Courts of Appeal
may look to the application paragraph of a jury charge to determine if the express
deadly weapon allegation in that portion of the jury charge matches the deadly
weapon allegation in the indictment for the charged offense. If so, the trial court
may enter a deadly weapon finding in the judgment based upon the jury’s verdict
of guilt, without a special verdict form or special issue instruction. Lafleur v.
State, 106 S.W.3d 91, 92 (Tex. Crim. App. 2003).
Such is the case here, the deadly weapon allegation alleged in the indictment
matches the deadly weapon allegation contained in the application paragraph.
Thus, it is counsel’s opinion that no point of error lies with respect to this issue.
(2) Whether the parole instruction in the punishment phase jury
charge was accurate.
The parole instruction in the jury charge stated:
Under the law applicable in this case, if the defendant is sentenced to
a term of imprisonment, he will not become eligible for parole until
the actual time served equals one-half of the sentence imposed,
without consideration of any good conduct time he may earn. If the
defendant is sentenced to a term of less than four (4) years, he must
serve at least two years before he is eligible for parole. Eligibility for
parole does not guarantee that parole will be granted.
(CR: 39). This instruction tracks the language of Texas Code of Criminal
Procedure Article 37.07 Section 4, the relevant statute for the charged offense in
this case. TEX. CODE CRIM. PRO. Art. 37.07 § 4. Therefore, no point of error
12
lies with respect to this issue.
(3) Whether Appellant’s sentence exceeded the proper range of
punishment.
A punishment which falls within the statutory range is not excessive, cruel,
or unusual. Gaines v. State, 479 S.W.2d 678, 679 (Tex. Crim. App. 1972); See
also Jordan v. State 495 S.W.2d 949, 952 (Tex. Crim. App. 1973); Samuel v. State,
477 S.W.2d 611, 614 (Tex. Crim. App. 1972). It is counsel’s opinion that the
punishment assessed was not excessive because Appellant’s punishment fell within
the statutory punishment range for the offense alleged. Specifically, Appellant
faced a punishment range for that of a second-degree felony, namely: two to
twenty years in prison or probation. See TEX. PENAL CODE § 12.33(a); TEX.
PENAL CODE § 19.04(b). Appellant was sentenced to eight years in prison, which
is within that punishment range. In fact, the State asked for a maximum
punishment of twenty years, but the jury assessed a punishment of less than half
that amount.
Accordingly, it is counsel’s opinion that no point of error lies with respect to
this issue.
13
(4) Whether lay witnesses opinion testimony that Appellant was
driving “recklessly” was admissible at trial.
At trial, Alisa Cummings and Domonic Cummings both testified that they
observed Appellant driving “recklessly” just prior to the accident in this case.
The question is whether their lay witness opinions were admissible at trial.
Texas Rule of Evidence 701 states that a lay witness’s testimony in the form
of opinions or inferences is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’s testimony or the determination of a fact in issue.
TEX. R. EVID. 701. The initial requirement that an opinion be rationally based on
the perceptions of the witness is composed of two parts. Fairow v. State, 943
S.W.2d 895, 899-900 (Tex. Crim. App. 1997). “First, the witness must establish
personal knowledge of the events from which his opinion is drawn and, second, the
opinion drawn must be rationally based on that knowledge.” Id. Accordingly,
the proponent of lay-opinion testimony must establish that the witness has personal
knowledge of the events upon which his opinion is based. Id. If the proponent
of the opinion cannot establish personal knowledge on the part of the testifying
witness, the trial court should exclude the testimony. Id.; see also Bigby v. State,
892 S.W.2d 864, 889 (Tex. Crim. App. 1994); McMillan v. State, 754 S.W.2d 422,
425 (Tex. App. -- Eastland 1988) (holding that a lay-witness opinion based on
14
hearsay was inadmissible).
The second requirement for admissibility under rule 701 is that the opinion
be helpful to the trier of fact to either understand the witness’s testimony or to
determine a fact in issue. TEX. R. EVID. 701. A lay witness’s opinion as to a
mental state is properly excluded when the witness has not been qualified as an
expert or shown to know the legal definition of said mental state. Fairow v. State,
943 S.W.2d at 900; see also Lum v. State, 903 S.W.2d 365, 370 (Tex. App. --
Texarkana 1995).
As a preliminary matter, defense counsel did not object to this testimony.
It is well-settled that as a prerequisite to presenting a point of error for appellate
review, the record must show that the complaint in question was made to the trial
court by a timely request, objection, or motion, and the trial court ruled on the
request, objection, or motion. TEX. R. APP. P. 33.1; Tucker v. State, 990 S.W.2d
261, 262 (Tex. Crim. App. 1999). Because defense counsel did not object to the
testimony in question, it is not preserved for appellate review.
Further, both Alisa Cummings and Domonic Cummings testified to what
they saw and perceived on the night of the accident. Their opinion was rationally
based on their perception and was helpful to a clear understanding of their
testimony or the determination of a fact in issue. TEX. R. EVID. 701. Alisa
15
demonstrated her knowledge of the meaning of the word “reckless” and Domonic
was not asked. That being the case, their opinions as to recklessness were
admissible at trial. TEX. R. EVID. 701; Fairow v. State, 943 S.W.2d at 900. As a
result, no point of error lies with respect to this issue.
(5) Whether the definition of “recklessness” in the jury charge
matched the statutory language of Texas Penal Code Section
6.03(c).
In this case, the jury was instructed as follows:
A person acts recklessly, or is reckless, with respect to the result of his
conduct, when he is aware of but consciously disregards a substantial
and unjustifiable risk that the result will occur. The risk must be of
such a nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the actor’s
standpoint.
(CR: 32-33). Texas Penal Code Section 6.03(c) reads:
A person acts recklessly, or is reckless, with respect to circumstances
surrounding his conduct or the result of his conduct when he is aware
of but consciously disregards a substantial and unjustifiable risk that
the circumstances exist or the result will occur. The risk must be of
such a nature and degree that its disregard constitutes a gross
deviation from the standard of care that an ordinary person would
exercise under all the circumstances as viewed from the actor’s
standpoint.
TEX. PENAL CODE § 6.03(c).
The definition of “recklessness” as contained in the jury charge,
substantially tracked the statutory language of Texas Penal Code Section 6.03(c).
16
Thus, no point of error lies with respect to this issue.
(6) Whether any jurors were impaneled over Appellant’s objection
for cause.
In the present case, defense counsel and the State agreed to their strikes for
cause of potential jurors and defense counsel did not object to any further venire
members. (RR5: 112-13). Thus, no point of error lies with respect to this issue.
Jacobs v. State, 787 S.W.2d 397, 405 (Tex. Crim. App. 1990), citing Harris v.
State, 790 S.W.2d 568 (Tex. Crim. App. 1989) (holding that multi-step process
must be followed to preserve error regarding an objectionable juror).
(7) Whether the evidence was sufficient to support Appellant’s
conviction.
The Court of Criminal Appeals has held that the legal sufficiency standard
set out in Jackson v. Virginia, 443 U.S. 307, 320 (1979), is the only standard that a
reviewing court should apply when determining the sufficiency of the evidence.
Brooks v. State, 323 S.W.3d 893, 896 (Tex. Crim. App. 2010). When reviewing
the legal sufficiency of the evidence, an appellate court views the evidence in the
light most favorable to the verdict and determines whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 320; Brooks, 323 S.W.3d at 896.
17
Pursuant to Texas Penal Code Section 19.04, the State was required to prove
beyond a reasonable doubt that Appellant recklessly caused Harvey’s death. TEX.
PENAL CODE § 19.04. At trial, two witnesses testified that Appellant was driving
recklessly and, viewing the evidence in the light most favorable to the jury’s
verdict, Appellant told an officer at the scene the accident was his fault.
Additionally, the crash event data recorder indicated Appellant’s vehicle was
traveling at 103 miles per hour when it impacted Epp’s vehicle, causing the
accident that resulted in Harvey’s death. Further, at the punishment phase of trial,
Appellant’s own attorney told the jury during closing argument, “I can’t get up
here with good conscience and argue he didn’t do this. We all know what he did.”
(RR8: 63).
Viewing the evidence in the light most favorable to the verdict, a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 320; Brooks, 323 S.W.3d at 896. As
such, no point of error lies with respect to this issue.
CONCLUSION
There are no points of error, which, in good conscience, could be raised in
this appeal.
18
NOTICE TO APPELLANT
The undersigned has forwarded a copy of this motion to withdraw and a
letter explaining Appellant’s rights, as well as the procedures to be followed when
a brief is filed by counsel indicating that the appeal is frivolous and without merit,
to Appellant. The letter also informs Appellant of his right to file a pro se
petition for discretionary review. In addition to the letter, the undersigned has
also forwarded to Appellant a Motion for Pro Se Access to the Appellate Record
so that Appellant can obtain the necessary records to file a brief, should he choose
to do so. A true and correct copy of such letter is attached hereto.
19
PRAYER
WHEREFORE, PREMISES CONSIDERED, Kristen Jernigan,
court-appointed counsel for Appellant in the above styled and numbered cause
respectfully prays that, after providing Appellant an opportunity to submit a pro se
brief, this Honorable Court of Appeals will review the appellate record to make an
independent determination of whether there are grounds upon which to appeal. The
undersigned also prays that the Court will grant this motion to withdraw.
Respectfully submitted,
____/s/ Kristen Jernigan___________
KRISTEN JERNIGAN
State Bar Number 90001898
207 S. Austin Ave.
Georgetown, Texas 78626
(512) 904-0123
(512) 931-3650 (fax)
Kristen@txcrimapp.com
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing
Anders Brief in support of Counsel’s Motion to Withdraw has been mailed on
October 10, 2016, to the Bell County District Attorney’s Office, P.O. Box 540,
Belton, Texas 76513.
________”/s/” Kristen Jernigan__________
Kristen Jernigan
20
CERTIFICATE OF WORD COUNT
The undersigned hereby certifies that the foregoing document consists of
6,126 words in compliance with Texas Rule of Appellate Procedure 9.4.
________”/s/” Kristen Jernigan__________
Kristen Jernigan
21
No. 03-16-00133-CR
In the
COURT OF APPEALS
For the
THIRD SUPREME JUDICIAL DISTRICT
at Austin
______________________________________
On Appeal from the 264th Judicial District Court of
Bell County, Texas
Cause Number 74451
______________________________________
KEEVIN DASHAWN BYRD, Appellant
v.
THE STATE OF TEXAS, Appellee
_____________________________________
CERTIFICATE OF COUNSEL
_____________________________________
In compliance with the requirements of Anders v. California, 386 U.S. 378
(1967), I, Kristen Jernigan, court-appointed counsel for Appellant, Keevin
Dashawn Byrd, in the above-referenced appeal, do hereby verify, in writing, to the
Court that I have:
1. notified Appellant that I filed a motion to withdraw as counsel with an
accompanying Anders brief, and provided a copy of each to Appellant;
2. informed Appellant of his right to file a pro se response identifying what
he believes to be meritorious grounds to be raised in his appeal, should he so
22
desire;
3. advised Appellant of his right to review the appellate record, should he
wish to do so, preparatory to filing that response;
4. explained the process for obtaining the appellate record, provided a
Motion for Pro Se Access to the Appellate Record lacking only Appellant’s
signature and the date, and provided the mailing address for this Court; and
5. informed Appellant of his right to seek discretionary review pro se should
this Court declare his appeal frivolous.
Respectfully submitted,
/s/ Kristen Jernigan
____________________________
Kristen Jernigan
23