ACCEPTED
12-14-00355-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/6/2015 8:22:12 PM
CATHY LUSK
CLERK
ORAL ARGUMENT NOT REQUESTED
NO. 12-14-00355-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 7/6/2015 8:22:12 PM
12TH JUDICIAL DISTRICT CATHY S. LUSK
Clerk
TYLER, TEXAS
DONALD POWELL,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
ON APPEAL IN CAUSE NUMBER 002-81591-14
FROM THE COUNTY COURT AT LAW #2
OF SMITH COUNTY, TEXAS
HONORABLE RANDALL ROGERS, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
Donald Powell
APPELLANT’S TRIAL COUNSEL
J. Rex Thompson
321 W. Houston
Tyler, Texas 75702
903-533-8434
APPELLANT’S APPELLATE COUNSEL
James Huggler
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 (fax)
APPELLEE
The State of Texas
APPELLEE’S TRIAL COUNSEL
Jeff Weatherford
Josh Raygor
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1900
APPELLEE’S APPELLATE COUNSEL
Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1900
ii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUE ONE: THERE WAS LEGALLY INSUFFICIENT
EVIDENCE TO FIND APPELLANT GUILTY OF THE
OFFENSE OF ASSAULT.
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Elements of the Offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
D. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
iii
TABLE OF AUTHORITIES
STATUTES
TEX. PENAL CODE ANN. §1.07(a)(8) (West 2011).. . . . . . . . . . . . . . . . . . . 6
TEX. PENAL CODE ANN. §22.01(a)(1) (West 2011). . . . . . . . . . . . . . . 1, 2, 6
CASES
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). . . . . . . . . . . . . 8
Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App. 1999).. . . . . . . . . . . 7
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). . . . . . . 5
Moreno v. State, 755 S.W.2d 866 (Tex. Crim. App. 1988). . . . . . . . . . . . 8
Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986). . . . . . . . . . . . . 8
Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211,
72 L.Ed.2d 652 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Turro v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993). . . . . . . . . . . . . . 8
Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 1993). . . . . . . . . . . 8
RULES
TEX. R. APP. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
iv
NO. 12-14-00355-CR
DONALD POWELL, § IN THE COURT OF APPEALS
APPELLANT §
§
VS. § 12TH JUDICIAL DISTRICT
§
THE STATE OF TEXAS, §
APPELLEE § TYLER, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:
Comes now Donald Powell (“Appellant”), by and through his attorney
of record, James Huggler, and pursuant to the provisions of TEX. R. APP.
PROC.38, et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE
Appellant was charged in cause number 002-81591-14 with the
misdemeanor offense of assault on May 20, 2012. I CR 2.1 TEX. PENAL
CODE ANN. §22.01(a)(1) (West 2011). A jury was selected, and following
evidence and argument of counsel found Mr. Powell guilty of assault. I CR
1
The Clerk’s Record is designated “CR” with roman numeral preceding “CR” indicating the correct volume and an arabic
numeral following “CR” specifying the correct page in the record.
1
32; III-A RR 28.2
Following evidence and argument to the trial court, the court
assessed a sentence of 60 days confinement in the Smith County Jail and
a $1,000 fine. I CR 41-42; IV RR 80. Notice of appeal was timely filed. I
CR 36. This brief is timely filed on or before July 6, 2015 following proper
extension by this Court.
ISSUE PRESENTED
Issue One: There was legally insufficient evidence to find Appellant
guilty of the offense of assault.
STATEMENT OF THE FACTS
The State alleged that on May 20, 2012, in Smith County, Donald
Powell assaulted Lydia Koonce by striking with hand or hands. I CR 2;
Tex. Penal Code Ann. §22.01(a)(1) (West 2011). The State also alleged
that the two had a dating relationship. I CR 2. To prove the case, the
State called two primary witnesses, Ms. Lydia Koonce the complainant
2
References to the Reporter’s Record are made using “RR” with a roman numeral preceding
“RR” indicating the volume and an arabic numeral following “RR” specifying the correct page.
There are two volumes labeled three, for the sake of convenience the afternoon session is referred
to in this brief as “III A”
2
and a nurse by profession, and the responding officer, Deputy Stockwell.
Ms. Koonce testified that during the time alleged, she and Mr.
Powell started consuming alcohol at her residence in the afternoon. II RR
164, 222. At the time she was also taking prescription medication for
depression which should not be mixed with alcohol. II RR 222. They then
continued drinking alcohol later at a bar or club frequented or “owned” by
a motorcycle club. II RR 165, 224. They stayed until last call which Ms.
Koonce believed was midnight. II RR 167. She then invited a lot of
people, at least five or six, back to her home. II RR 167-68, 169. Ms.
Koonce was not even sure as to the identity of some of these people. II RR
224.
She did not remember how long she stayed awake, but that she was
drinking with others on the patio. II RR 168. Her last memory was
everyone sitting on the back porch drinking, talking and carrying on. II
RR 170. The next thing she remembered was waking up in her bedroom
banged up. II RR 170. She woke up after she had taken her daughter to
her ex-husband and met the deputy. II RR 170.
3
Deputy Stockwell3 testified that she responded to the gas station,
met Ms. Koonce and her former husband, took a statement from her as
well as photographs. III RR 9, 12, 15. Following this meeting she
contacted Mr. Powell and arrested him. II RR 27-28. A further discussion
of the facts is included in the argument section of this brief.
SUMMARY OF ARGUMENT
There is one issue for this Court to consider. Was the evidence
legally sufficient to fin Donald Powell guilty of the assault? There is no
doubt that Ms. Koonce was assaulted, the question is by whom was she
assaulted?
3
In May 2012, Deputy Jennifer Burkhalter responded to and met Ms. Koonce. Between that
time and trial she was married. III RR 43. Because the reporter’s record refers to the witness by
her married time, for the convenience of the Court, counsel will also do so in this Brief.
4
ARGUMENT
ISSUE ONE, RESTATED: THERE WAS LEGALLY INSUFFICIENT
EVIDENCE TO FIND APPELLANT GUILTY OF THE OFFENSE OF
ASSAULT.
A. Standard of Review
Appellant contends that the evidence is legally insufficient to
support the verdict. The standard for reviewing a legal sufficiency
challenge is whether any rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. See Jackson
v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d
560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.
App. 1993). The evidence is examined in the light most favorable to the
verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871
S.W.2d at 186. A successful legal sufficiency challenge will result in
rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457
U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).
5
B. Elements of the Offense
A person commits assault if he intentionally, knowingly or recklessly
causes bodily injury to another. TEX. PENAL CODE ANN. §22.01(a)(1) (West
2011). Bodily injury means physical pain, illness, or any impairment of
physical condition. TEX. PENAL CODE ANN. §1.07(a)(8) (West 2011).
C. Application to These Facts
Ms. Koonce, due to alcohol and prescription medications had almost
no recollection of the events in this case. II RR 190, 192, 221-222, 241.
She did not remember what she was wearing when she woke up. II RR
171. She did not remember taking her daughter to a gas station, meeting
her former husband or meeting the deputy. II RR 171, 172. She only
knew that she spoke with the deputy because the prosecutor and her
former husband told her that it occurred. II RR 173. She did not
recognize a statement made that morning. II RR 175-177, 181, 214. She
was unable to recognize her signature. II RR 188, 212. She believes that
she made the statement while under the influence of alcohol, and anti-
depressant medications, Zoloft and Xanax. II RR 243-245, 242.
Ms. Koonce had previously alerted the District Attorney’s Office that
6
she was unable to remember the events of that evening. II RR 182-183,
205, 232; Def. Exs. 1 and 2, I V RR 43 and 44. She began these efforts as
early as August 2012. II RR 227. She did not remember meeting the
deputy and was probably still drunk and under the influence of the
prescription medications. II RR 227-28.
Ths simple truth is that Ms. Koonce has no recollection of who
caused the injuries to her that evening. II RR 226. It could have been
from Mr. Powell, anyone else at the house, or some other person. II RR
226.
Deputy Stockwell confirmed that Mr. Powell had injuries, a bite
mark or scratch marks, a bruised eye. III RR 29, 30. She also took
photographs of Mr. Powell later that morning. III RR 32. Stockwell did
not see any defensive wounds on Ms. Koonce. III RR 46. After Stockwell
saw the wounds on Powell, she did not attempt to determine if they came
from Koonce. III RR 47, 49. Mr. Powell’s hands did not have any marks
of indications that he had assaulted anyone. III RR 50, 52.
The jury, as the trier of fact, "is the sole judge of the credibility of the
witnesses and of the strength of the evidence." Fuentes v. State, 991
S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe
7
or disbelieve any portion of the testimony. Sharp v. State, 707 S.W.2d
611, 614 (Tex. Crim. App. 1986). The jury may also draw reasonable
inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d
126, 133 (Tex. Crim. App. 1996). When faced with conflicting evidence,
the appellate court presumes the trier of fact resolved conflicts in the
prevailing party's favor. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim.
App. 1993). However, the duty of a reviewing court requires ensuring that
the evidence presented actually supports a conclusion that the defendant
committed the crime charged. Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007). An appellate court can not uphold a fact-finder's
decision if it is irrational or unsupported by more than a mere modicum
of the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.
1988).
In this case, there is no doubt that Ms. Koonce was assaulted. The
State believed that the assault was made by Mr. Powell, despite the lack
of evidence on his hands, or the lack of defensive wounds on her hands.
Ms. Koonce attempted twice in writing, and other times in telephone calls
to communicate the fact that she had no recollection of the events of that
night.
8
D. Conclusion
This Court should sustain this issue and reverse the judgment of the
trial court and render an acquittal to the charge of assault.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
prays that the trial court’s decision be reversed and judgment of acquittal
rendered, and for other such relief as allowed by law.
Respectfully submitted,
/s/ James Huggler
James W. Huggler, Jr.
State Bar Number
00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR
APPELLANT
9
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by regular mail on this the 6th day of
July, 2015.
/s/ James Huggler
James W. Huggler, Jr.
Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,073 words as counted by
Corel WordPerfect version x5.
/s/ James Huggler
James Huggler
10