ACCEPTED
06-14-00166-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
3/31/2015 3:22:41 PM
DEBBIE AUTREY
CLERK
IN THE COURT OF APPEALS
FILED IN
SIXTH DISTRICT OF TEXAS 6th COURT OF APPEALS
TEXARKANA, TEXAS
4/1/2015 10:43:00 AM
TEXARKANA, TEXAS DEBBIE AUTREY
Clerk
RODERICK KING
Appellant
Vs 06-14-00166-CR
THE STATE OF TEXAS
Appellee
ON APPEAL FROM
THE 188TH JUDICIAL DISTRICT COURT
OF GREGG COUNTY, TEXAS
TRIAL COURT NO. 43416-A
BRIEF ON BEHALF OF APPELLANT
TIM CONE
State Bar #04660350
P.O. Box 413
Gilmer, Texas 75644
(903) 725-6270
e-mail: timcone6@aol.com
ATTORNEY FOR THE APPELLANT
2
IDENTITY OF PARTIES AND COUNSEL
RODERICK KING, #1955223
DIBOLL CORRECTIONAL CENTER
1604 SOUTH FIRST STREET
DIBOLL, TEXAS 75941
APPELLANT
ALEX TYRA
P.O. BOX 3653
LONGVIEW, TEXAS 75606
APPELLANT’S COUNSEL AT TRIAL
DEBBIE GARRETT AND CHRIS BOTTO, GREGG COUNTY ASSISTANT
CRIMINAL DISTRICT ATTORNEYS
101 E. METHVIN
LONGVVIEW, TEXAS 75601
APPELLEE’S COUNSEL AT TRIAL
TIM CONE
P.O. BOX 413
GILMER, TX 75644
APPELLANT’S COUNSEL ON APPEAL
ZAN BROWN
GREGG COUNTY ASSISTANT CRIMINAL DISTRICT ATTORNEY
101 E. METHVIN
LONGVIEW, TEXAS
APPELLEE’S COUNSEL ON APPEAL
3
TABLE OF CONTENTS
Page No.
List of Parties and Counsel……………………………………………. 2
Table of Contents……………………………………………………… 3
Index of Authorities…………………………………………………… 4
Statement of the Case…………………………………………………. 6
Point of Error Number One…………………………………………… 7,12
The evidence is insufficient to support a conviction.
Point of Error Number Two……………………………………………. 8,14
The trial court erred in overruling that the prosecutor’s argument
was improper.
Statement of Facts……………………………………………………. 8
Summary of Argument………………………………………………. 11
Conclusion and Prayer……………………………………………….. 15
Certificate of Compliance……………………………………………. 16
Certificate of Service………………………………………………… 16
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INDEX OF AUTHORITIES
PAGE
STATE CASES:
Brooks v. State, 323 S.W. 3d 893 (Tex.Crim.App. 2010) 12
Brown v. State, 692 S.W. 2d 497 (Tex.Crim.App. 1985) 14
Jackson v. State, 17 S.W. 3d 664 (Tex.Crim.App. 2000) 14
Johnson v. State, 364 S.W. 3d 292 (Tex.Crim. App. 2012) 14
Johnson v. State, 23 S.W. 3d 1 (Tex.Crim.App. 2000) 12
Lane v. State, 151 S.W. 3d 188(TexCrim.App. 2004) 12
Malik v. State, 953 S.W. 2d 234 (Tex.Crim.App. 1997) 13
Young v. State, 14 S.W. 3d 748 (Tex.Crim.App. 2000) 12
5
NO. 06-14-00166-CR
IN THE
COURT OF APPEALS
FOR THE
SIXTH JUDICIAL DISTRICT OF TEXAS
RODERICK KING,
APPELLANT
VS.
THE STATE OF TEXAS
APPELLEE
TO THE HONORABLE JUSTICES OF SAID COURT:
COMES NOW, the Appellant by and through his Attorney, namely Tim Cone,
hereinafter referred to as Appellant, and submits this brief in support of reversing the
judgment and sentence pursuant to the provisions of the Texas Rules of Appellate
Procedure in Cause No. 06-14-00166-CR in the 188th Judicial District Court of Gregg
County, Texas, (Trial Court Cause No. 43,416-A).
6
STATEMENT OF THE CASE
On January 30, 2014, Roderick King was indicted by the Gregg County Grand
Jury for the offense of Assault Family Violence Enhanced, a third degree felony.
CR1. The indictment was a two paragraph indictment, with the only difference in the
two paragraphs being the Cause Number of the underlying misdemeanor Assault
Family Violence offense that enhanced the present offense to a felony. At trial, the
State abandoned the first paragraph and proceeded to trial on the second paragraph
(Paragraph B).CR1, 4RR12.
On July 17, 2014, a hearing was held based on the Appellant’s request that his
bail be reduced.2RR. The request was denied.2RR21. On August 15, 2014, a status
hearing was held in which the Appellant testified he wanted to forego the services of
an expert and proceed to trial.3RR6. He also testified he rejected a plea bargain offer
of a seven year probation with SAFP.3RR12.
On August 25, 2014, the jury was selected.4RR. Prior to jury selection, the
State filed a notice of an enhancement allegation, raising the possible level of
punishment to a second degree felony.CR14,4RR9. The record shows the Appellant’s
trial attorney was aware of the State’s intention in this regard as of August 15,
2014.4RR10,11.
7
On August 26, 2014, trial began and ended.5RR. The jury found the Appellant
guilty of the felony set out in the indictment.5RR153. At the punishment phase of the
trial, the Appellant pled true to the enhancement allegation, making the offense a
second degree felony.6RR12. The jury assessed punishment at seven years
confinement in TDCJ-ID.6RR36. No fine was assessed. The Appellant now appeals
this judgment of conviction.
It should be noted that the disk of the clerk’s recorded provided to prepare this
brief does not contain page numbers. It is in PDF format and has item numbers but
no page numbers. The numbers used in this brief are the item numbers as there are
no page numbers noted.
For clarity, THE STATE OF TEXAS will be referred to as “the State”, and
Roderick King will be referred to as “Defendant” or “Appellant.”
ISSUES PRESENTED
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POINT OF ERROR NUMBER ONE
The evidence is insufficient to support a conviction.
POINT OF ERROR NUMBER TWO
The trial court erred in overruling that the prosecutor’s argument was improper.
STATEMENT OF THE FACTS
As sufficiency of the evidence is a point of error, a rendition of the evidence
produced at trial is necessary. The trial was relatively brief, however. The State called
four witnesses-the complaining witness (Joyce Dawkins), her brother (George
Sanders), the first police officer on the scene (Suzzanne Hardee), and the police
investigator (Trevor Yates). There was some discussion as to whether the Appellant
would testify at trial, but, ultimately, he did not and he called no witnesses during
either phase of the trial.5RR114-119.
The complaining witness, Joyce Dawkins, testified she and the Appellant lived
together at her home and her brother, George Sanders, also lived in the home as the
only other resident.5RR21,22. Ms. Dawkins testified she came home from work on
9
November 15, 2013, and was tired.5RR23. Although she initially indicated her
relationship with the Appellant was platonic, she later described the relationship as a
dating relationship.5RR22. Ms. Dawkins testified she tried to lay down in the
bedroom and an argument ensued between her and the Appellant.5RR24. She did
admit she was upset regarding another woman she thought was a girlfriend of the
Appellant.5RR29. She testified she left the bedroom and went to the dining room
when the Appellant turned on a fan in the bedroom, which was an action that irritated
her.5RR24. Ms. Dawkins testified she was in the bedroom when her brother came
home but he later testified she was in the dining room when he came home and went
to his own room.5RR39,53. Nonetheless, at some point, the Appellant entered the
dining room and, according to Ms. Dawkins, the argument turned into a physical
confrontation.5RR24. While the description of the physical aspect of the incident
varied at different times in the testimony, it seems clear Ms. Dawkins forehead and
arm received bodily injury as a result.5RR25. Although the indictment set out an
allegation that the injury was caused by the Appellant striking her with his hand, Ms.
Dawkins could not describe how she received her injuries.5RR32,33. In fact, she
testified that the striking of her by the Appellant’s hand was not hard enough to cause
the injuries she received.5RR32. Ms. Dawkins testified she did not know how she got
the knot on her head.5RR32. Ms. Dawkins called the police and the Appellant left
the residence, as she had wanted him to do.5RR40,43. Ms. Dawkins told the officer
10
who came to the scene, Suzzanne Hardee, that the injury to her head hurt a little but
“not too bad.” 5RR79. Ms. Dawkins testified she had signed an affidavit of non-
prosecution and never expected the matter to go as far as it did.5RR44.
George Sanders, Ms. Dawkins’ brother testified he came home and his sister
was seated in the dining room.5RR53. He went to bed and then heard a commotion,
went to the dining room and the altercation between the Appellant and Ms. Dawkins
stopped.5RR50-54. Ms. Dawkins called the police and the Appellant left.5RR60. Mr.
Sanders did not see any of the altercation and did not really know what
happened.5RR61. He did testify his sister was unhurt when he came home and she
received the injuries before he came out of his room after hearing the
commotion.5RR61.
The police officer at the scene, Suzzanne Hardee testified she saw the injuries
of Ms. Dawkins, which qualify as bodily injury.5RR66,67. Ms. Dawkins refused any
medical treatment and did not request an Emergency Protective Order.5RR79,82. She
also took pictures of the injuries. State’s Exhibit 2, 2A. The State’s last witness was
Detective Trevor Yates, to whom the case was assigned for follow-up investigation.
5RR94.He tried telephoning the Appellant and sending a letter to the Appellant at
Ms. Dawkins’ residence-a place he ceased to reside as of the night of the incident.
5RR98,99.The detective testified the case was of a low priority and he never talked to
the Appellant or made any significant effort to locate him.5RR106;5RR94-106.
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During closing arguments, the State made an argument that referred to an
example made regarding causation the Appellant’s trial counsel used during jury
selection and then showed the Appellant made no production of evidence at trial
regarding causation.5RR134. The Appellant’s trial attorney objected to the improper
argument as an effort to shift the burden of proof to the accused at trial.5RR134. The
trial court overruled the objection while stating the burden of proof is on the
state.5RR134. After arguments, the jury convicted the Appellant of the allegation set
forth in the indictment.5RR153.
During the punishment phase of the trial, the Appellant pled true to the
enhancement allegation that elevated the offense to a second degree felony and he
stipulated to other prior convictions.6RR12,14. After arguments, the jury assessed a
sentence of seven years confinement in TDCJ-ID.6RR36.
SUMMARY OF THE ARGUMENT
The indictment is quite specific in setting out an allegation that the Appellant
caused Ms. Dawkins bodily injury by striking her with his hand-specifically, that the
hand caused the injury. At trial, the evidence did not show how Ms. Dawkins injuries
12
were received. In fact, Ms. Dawkins specifically testified that the striking of her by
the Appellant’s hand was not severe enough to cause the injuries she received. The
evidence, therefore, is insufficient to support the verdict.
There are only specific areas of proper jury argument allowed to be made by
the State during closing arguments. The argument made by the State clearly was an
attempt to shift the burden of proof to the Appellant, which is an improper argument.
The objection made by Appellant’s trial counsel was overruled. This ruling is error
and the harm caused by the attempt to improperly shift the burden is shown by the
verdict in a case where the Appellant produces no evidence through exhibits or
witnesses.
POINT OF ERROR NUMBER ONE
The evidence is insufficient to support a conviction.
ARGUMENT
The proper analysis for sufficiency of the evidence is that the evidence will be
viewed in the light most favorable to the verdict to determine whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010); Johnson v. State, 23
S.W.3d 1 ((Tex.Crim.App. 2000); Lane v. State, 151 S.W.3d 188 (Tex.Crim.App.
2004); and Young v. State, 14 S.W.3d 748 (Tex.Crim.App. 2000). Legal sufficiency
13
is also measured by the elements of the offense as defined by a hypothetically correct
jury charge. Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997).
Analyzing the case at bar under the above authorities, the evidence is
insufficient for a rational trier of fact to find the essential elements of the offense
beyond a reasonable doubt regarding the offense as set out in the indictment. As set
out in the statement of facts, the only evidence produced at trial regarding how the
injuries to Ms. Dawkins were incurred was the testimony of Ms. Dawkins, herself.
Her testimony clearly established that she did not know how her injuries were
inflicted but she did not believe the blows from the Appellant’s hand were strong
enough to inflict the injuries. The indictment did not set out an allegation that the
Appellant caused the injuries in some manner unknown, that they were received
during an altercation, or that Ms. Dawkins was injured when she hit her head as she
fell during the incident. The indictment is quite specific in requiring the State to
prove beyond a reasonable doubt that the injuries were caused by the strikes from the
hand of the Appellant. The State’s evidence not only does not support the allegation,
the evidence established that the injuries were received in a manner other than the
method set out in the indictment. Should this matter be reviewed as a variance issue,
the variance between the allegation is certainly material and, therefore, requires
reversal. Johnson v. State, 364 S.W.3d 292 (Tex.Crim.App. 2012). Simply stated, no
14
rational trier of fact could find beyond a reasonable doubt that the injuries Ms.
Dawkins received were from the Appellant striking her with his hand.
POINT OF ERROR NUMBER TWO
The trial court erred in overruling that the prosecutor’s argument was improper.
ARGUMENT
There are four proper areas of jury argument by the State. They are: (1)
summation of the evidence presented at trial, (2) reasonable deduction drawn from
that evidence, (3) answer to opposing counsel’s arguments, or (4) a plea for law
enforcement. Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App.2000); Brown v. State,
692 S.W.2d 497 (Tex.Crim.App. 1985). At trial, during the closing argument made
by the State, the prosecutor made a specific reference-not to opposing counsel’s
argument-but to a specific example about drawing erroneous conclusions that counsel
utilized to make a point during jury selection. The specific argument made by the
prosecutor strongly suggested that the Appellant had brought no evidence of how Ms.
Dawkins received her injuries from the Appellant. This argument clearly invited the
15
jury to consider that the Appellant presented no evidence along these lines. A timely,
specific objection was made by Appellant’s trial counsel as to the improper argument.
Although the trial court instructed the jury the burden of proof was on the State, the
objection was overruled. The ruling on the objection was completely at odds with the
court instruction. The only logical deduction the jury could make was that the
prosecutor’s argument was correct-even though it was improper. Since the case was
one that completely relied on the State’s failure to meet their burden, the court’s
failure to sustain the objection and immediately instruct the jury the prosecutor’s
argument was improper harmed the Appellant. The ruling by the trial court was error
and not harmless.
CONCLUSION AND PRAYER
For the reasons herein alleged, the judgment and sentence of the trial court
should be reversed and an acquittal rendered or, in the alternative, reversed and
remanded for a new trial.
Respectfully submitted,
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/s/Tim Cone
____________________
TIM CONE
Attorney At Law
P.O. Box 413
Gilmer, Texas 75644
e-mail: timcone6@aol.com
ATTORNEY FOR APPELLANT
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document complies with Texas Rules of Appellate
Procedure, Rule 9 regarding length of documents, in that exclusive of caption,
identity of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix, it consists of 1570 words.
/s/Tim Cone
______________________
TIM CONE
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
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This is to certify that a true and correct copy of the foregoing Appellant’s Brief
has been provided to the Honorable Zan Brown, Gregg County Assistant Criminal
District Attorney on March 31, 2015.
/s/Tim Cone
_____________________________
TIM CONE
Attorney At Law