Clark, Jack Theotrice Jr.

PD-0439-15
PD-0439-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/17/2015 11:35:30 AM
Accepted 4/21/2015 11:51:54 AM
ABEL ACOSTA
IN THE COURT OF CRIMINAL APPEALS OF TEXAS CLERK
AUSTIN, TEXAS

JACK THEOTRICE CLARK, JR.,
APPELLANT

NO. __
(COURT OF APPEALS NO. 11-12-00134-
CR; TRIAL COURT NO. 9708-D)
STATE OF TEXAS,
APPELLEE
**************************************
PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
ELEVENTH JUDICIAL DISTRICT
EASTLAND, TEXAS
**************************************
CHIEF JUSTICE 11M R. WRIGHT, PRESIDING
*********************************************************
APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
*********************************************************
STAN BROWN
P.O. BOX 3122
ABILENE, TEXAS 79604
325-677 -1851
FAX 325-677-3107
STATE BAR NO. 03145000
EMAIL: mstrb@aol.com

April 21, 2015
ATTORNEY FOR APPELLANT
 IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS

JACK THEOTRICE CLARK, JR.,
APPELLANT

NO. __
(COURT OF APPEALS NO. 11-12-00134-
CR; TRIAL COURT NO. 9708-D)
STATE OF TEXAS,
APPELLEE

IDENTITY OF JUDGE, PARTIES, AND COUNSEL

Hon. Thomas M. Wheeler Stan Brown
350th District Court Appellant's Attorney/ Appeal
Taylor County Courthouse P.O. Box 3122
Abilene, TX 79602 Abilene, TX 79604

James Eidson Paul W. Hanneman
District Attorney Appellant's Attorney/Trial
Taylor County Courthouse 1305 Lamar Street
Abilene, TX 79602 Sweetwater, TX 79556

Patricia Dyer Jack Theotrice Clark, Jr., Appellant
Assistant District Attorney 303 W. Texas Ave.
Taylor County Plaza Sweetwater, TX 79556
Abilene, TX 79602

II
 TABLE OF CONTENTS

SUBJECT PAGE

IDENTITY OF JUDGE, PARTIES, AND COUNSEL ii

STATEMENT REGARDING ORAL ARGUMENT vi

STATEMENT OF THE CASE 1

STATEMENT OF PROCEDURAL HISTORY 2

QUESTION PRESENTED FOR REVIEW

Has the time come to formally abandon the unjust and ill-conceived
concept of assessing sufficiency of the evidence against some imaginary
"hypothetically correct" jury charge, particularly in view of the indictment
allegation Appellant bit Officer Jennings finger as the manner and means of
committing the offense of assault on a public servant, considering a bite
should have, of necessity, been proved beyond a reasonable doubt? (C.R. at
6). (V R.R. at 20-154)(VI R.R. at 11-160)(VII R.R. at 45-46)(IX R.R.
ExhibitVolume) 3

PRA YER FOR RELIEF 9

CERTIFICATE OF SERVICE 9

CERTIFICATE OF COMPLIANCE 9

III
 INDEX OF AUTHORITIES

CASES PAGE

Benson v. State, 661 S.W.2d 708 (Tex. Cr. App. 1982) 13

Bledsue v. Johnson, 188 FJd 250 (5th Cir. 1999) 13-14

Boozer v. State, 717 S.W.2d 608 (Tex. Cr. App. 1984) 13

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 3, 6, 9,10-12,13

Burks v. United States, 437 U.S. 1,98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) .15

City of Keller v. Wilson, 168 S.WJd 802 (Tex. 2005) .10

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) 5

Collier v. Poe, 732 S.W.2d 332 (Tex. Crim. App. 1987) 3,5

Delay v. State, 443 S.W.3d 909 (Tex. Crim. App. 2014) .10

Fuller v. State, 73 S.W.3d 250 (Tex. Cr. App. 2002) 3, 8,12,13

Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) 8-9

Hooper v. State, 214 S.W.3d 9, (Tex. Crim. App. 2007) .12

Greene v. Massey, 437 U.S. 19,98 S.Ct. 2151,57 L.Ed.2d 15 (1978) .15

In re J.F.C., 96 S.W.3d 256 (Tex. 2002) 9-10

In Re Winship, 397 U.S. 58, 90 S.Ct. 1068,25 LEd2d 368,375 (1970) 5

Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010) 4-5, 12

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979) passim

Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) 4

Lancon v. State, 253 S.W.3d 699 (Tex. Crim. App. 2008) .11

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .10

Malik v. State, 953 S.W.2d 234 (Tex. Cr. App. 1997) 8,13

IV
Richardson v. State, 973 S.W.2d 384 (Tex. App.-Dallas 1998, no pet.).l2-13

Schexnider v. State, 943 S.W.2d 194 (Tex. App.-Beaumont 1997, no pet.).l2

Shaw v. State, 243 S.W.3d 647 (Tex. Crim. App. 2007) .12

Smith v. State, 961 S.W.2d 501 (Tex. App.-San Antonio 1997, no pet.) .l2

Sorrells v. State, 343 S.W.3d 152 (Tex. Crim. App. 2011) 5

Temple v. State, 342 S.W.3d 572 (Tex. App.-Houston [14th Dist.] 2010, pet
granted) 9

Wallace v. State, 955 S.W.2d 148 (Tex. App.-Beaumont 1997, no pet.) .12

York v. State, 2001 WL 225490 (Tex. App.-Houston [lst Dist.] 2001, no
pet.)(unpublished memorandum opinion) 14-15

CONSTITUTIONAL PROVISIONS & RULES PAGE

U.S. CONST. amend. XIV passim

Tex. R. App. P. 9.4 17

Tex. R. App. P. 66.3(c) .3

v
 STATEMENT REGARDING ORAL ARGUMENT

Appellant believes the QUESTION PRESENTED; whether the State must

prove what it alleges to satisfy the requirements of Due Process of Law; is an

issue that merits further clarification for the bench and bar. Therefore, the usual

give and take of oral argument would be useful for the Court in determining the

parameters of measuring the sufficiency of proof as against the allegations

presented. Oral argument is essential in order to aid this Court's decisional

processes by providing a more in-depth exploration of that issue.

VI
 IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
JACK THEOTRICE CLARK, JR.,
APPELLANT

NO. __
(COURT OF APPEALS NO. 11-12-00134-
CR)(TRIAL COURT NO. 9708-D)
STATE OF TEXAS,
APPELLEE
**************************************
PETITION FOR DISCRETIONARY REVIEW
FROM THE COURT OF APPEALS
ELEVENTH JUDICIAL DISTRICT
EASTLAND, TEXAS
**************************************
STATEMENT OF THE CASE

The trial court convicted Appellant of Second Degree felony assault

on a public servant, Christopher Jennings, Abilene Police Department, with

one prior alleged, by biting his finger while he was in the lawful discharge

of his official duty. On February 17, 2012, the trial court sentenced him to

ten years TDCJ-ID. (C.R. at 6, 163). Following the overruling of

Appellant's Motion for New Trial by operation of law (C.R. at 165), his

Notice of Appeal was filed May 11,2012. (C.R. at 172). The Trial Court's

Certification of Defendant's Right of Appeal was filed March 2, 2012.

(C.R. at 162). Appellant seeks review of the decision of the Court of

Appeals that affirmed the conviction.
 STATEMENT OF PROCEDURAL HISTORY

Appellant presented one issue in his brief, and the Eastland Court of

Appeals affirmed. Clark v. State, S.W.3d 2015 WL

1322669 (Tex. App.-Eastland March 12, 2015)(Appendix). Appellant filed a

motion for rehearing March 19, 2015, which was denied without written

opinion April 2, 2014. This petition is due to be filed by May 4, 2015; it is

therefore timely filed.

2
 QUESTION PRESENTED FOR REVIEW

Has the time come to formally abandon the unjust and ill-conceived
concept of assessing sufficiency of the evidence against some imaginary
"hypothetically correct" jury charge, particularly in view of the indictment
allegation Appellant bit Officer Jennings finger as the manner and means of
committing the offense of assault on a public servant, considering a bite
should have, of necessity, been proved beyond a reasonable doubt? (C.R. at
6). (V R.R. at 20-154)(VI R.R. at 11-160)(VII R.R. at 45-46)(lX R.R.
Exhibit Volume).

ARGUMENT

Due Process of Law demands the recognition by this Court the State

must prove what it alleges in order to lawfully obtain a conviction. That is

the gravamen of the basic case law governing sufficiency of the evidence.

Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010); Fuller v. State, 73

S.W.3d 250 (Tex. Cr. App. 2002); and see generally, Collier v. Poe, 732

S.W.2d 332 (Tex. Crim. App. 1987). By its determination at pages six and

seven of the Slip Opinion, "The focus is on the result of the defendant's

action and his culpable mental state, not on the precise act or the nature of

the conduct committed by the defendant," and by reliance on Johnson v.

State, 364 S.W.3d 292 (Tex. Crim. App. 2012) for that assertion, the court

below decided an important question of state and federal law that conflicts

with the foregoing applicable decisions of this Court and the Supreme Court

of the United States. Tex. R. App. P. 66.3(c).

The indictment alleged a Second Degree (by enhancement) felony

assault on a public servant, Christopher Jennings, Abilene Police by biting

3
his finger while he was in the lawful discharge of his official duty. (C.R. at

6)(Emphasis supplied). As we stated in our SUMMARY OF THE

ARGUMENT at page fifteen of Appellant's Brief filed in the court below,

"Texas case law, odontology, and our commonsense all reach the same

conclusion: To establish a bite, two opposing jaws must be shown to have

clamped down on the object that was allegedly bit. Despite the testimony

of Officer Christopher Jennings that Appellant bit his finger, all the other

relevant evidence convincingly says otherwise." Despite the absence of

proof of an actual bite as alleged, Johnson v. State, 364 S.W.3d 292,298

(Tex. Crim. App. 2012)1 makes plain under the ill-conceived "hypothetically

correct jury charge" standard of assessing sufficiency, the State was not

required to prove a bite. That is wrong, contrary to Due Process of Law, and

would allow, for example, an indictment alleging an assault by punching in

the nose to be adequately proved beyond a reasonable doubt by proof of

kicking in the butt.

DUE PROCESS OF LAW

When performing a legal sufficiency review, a reviewing court does

not reevaluate the weight and credibility of the evidence and substitute its

judgment for that of the trier of fact. Isassi v. State, 330 S.W.3d 633,638

1 "In the present case, appellant was charged with aggravated assault by causing serious
bodily injury. The variance in this case involves the charged acts of 'hitting the victim
with his hand' and 'twisting the victim's arm with his hand' versus the proved act of
'throwing the victim against the wall.' ... What caused the victim's injury is not the focus
or gravamen of this offense. The aggravated assault offense at issue is a result-of-conduct
crime with the focus or gravamen being the victim and the bodily injury that was
inflicted. The precise act or nature of conduct in this result-oriented offense is
inconsequential.' " (Footnotes omitted).

4
(Tex. Crim. App. 2010).2 Instead, the reviewing court determines whether

the necessary inferences are reasonable based upon the cumulative force of

the evidence when viewed in the light most favorable to the verdict. Sorrells

v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011).3 The reviewing court

presumes that the trier of fact resolved conflicting inferences in favor of the

verdict and defers to that resolution. Jackson, 443 U.S. at 326. Collier v.

Poe, 732 S.W.2d 332, 343-344 (Tex. Crim. App. 1987) held Due Process

rights belong to the indi vidual, not the State. It is evident the requirement

there can be no criminal conviction but by sufficient evidence necessary to

convince a trier of fact beyond a reasonable doubt of every element of the

offense, and the trier of fact must rationally apply that standard to the

evidence presented, is mandated by Due Process of Law. "[T[he Due

Process Clause protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute the crime

2 Isassi, supra, 330 S.W.3d at 638, "Rather, we defer to 'the responsibility of the trier of
fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.' This same standard applies equally to
circumstantial and direct evidence. 'Our role on appeal is restricted to guarding against
the rare occurrence when a factfinder does not act rationally.''' (Footnotes and citations
omitted).
3 Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 20] I), citing Clayton v. State,
235 S.W.3d 772 (Tex. Crim. App. 2007), summarized the sufficiency process as follows:
"When we review a court of appeals's application of the legal sufficiency standard set out
in Jackson v. Virginia, the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. This standard accounts for the
factfinder's duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Therefore, in analyzing legal
sufficiency, we 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. (Emphasis supplied).

5
with which he is charged." In Re Winship, 397 U.S. 58, 90 S.Ct. 1068,25

LEd2d 368, 375 (1970). (Emphasis supplied).

Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781,61 L.Ed.2d 560

(1979) teaches that Winship:

requires more than simply a trial ritual...[S]o fundamental a
substantive constitutional standard must also require that the
factfinder will rationally apply that standard to the facts in
evidence ...After Winship the critical inquiry on review of the
sufficiency of the evidence to support a criminal conviction
must be not simply to determine whether the jury was properly
instructed, but to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable
doubt. Id. at 572-573 (footnotes and citations omitted). [T]he
relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Id. 61 L.Ed.2d at 574.

Due Process of Law demands Jack Clark be acquitted as the State was

unable to prove a material allegation of the indictment. Jackson v. Virginia,

443 U.S. 307,99 S.Ct. 2781,61 L.Ed.2d 560 (1979) is firmly grounded in

basic principles of Due Process. When this Court overruled Clewis v. State,

922 S.W.2d 126 (Tex. Crim. App. 1996) and did away with factual

sufficiency review, it directed, "We ... overrule Clewis and decide that the

Jackson v. Virginia legal-sufficiency standard is the only standard that a

reviewing court should apply in determining whether the evidence is

sufficient to support each element of a criminal offense that the State is

required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010). A more in-depth analysis of Jackson v.

Virginia is necessary.

6
 Jackson v. Virginia reiterated an obvious concept:

It is axiomatic that a conviction upon a charge not made
or upon a charge not tried constitutes a denial of due
process ... These standards no more than reflect a broader
premise that has never been doubted in our constitutional
system: that a person cannot incur the loss of liberty for an
offense without notice and a meaningful opportunity to
defend ... A meaningful opportunity to defend, if not the right to
a trial itself, presumes as well that a total want of evidence to
support a charge will conclude the case in favor of the accused.
Accordingly, we held in the Thompson case that a conviction
based upon a record wholly devoid of any relevant evidence of
a crucial element of the offense charged is constitutionally
infirm ... The "no evidence" doctrine of Thompson v. Louisville
(362 U.S. 199) thus secures to an accused the most elemental of
due process rights: freedom from a wholly arbitrary deprivation
of liberty. Id. 61 L.Ed.2d at 571. (Some citations omitted).

The Supreme Court continued, "In short, Winship presupposes as an

essential of the due process guaranteed by the Fourteenth Amendment that

no person shall be made to suffer the onus of a criminal conviction except

upon sufficient proof -- defined as evidence necessary to convince a trier of

fact beyond a reasonable doubt of the existence of every element of the

offense." Id. (Emphasis supplied). And having built on that firm

foundation, the Supreme Court concluded:

The question whether a defendant has been convicted upon
inadequate evidence is central to the basic question of guilt or
innocence. The constitutional necessity of proof beyond a
reasonable doubt is not confined to those defendants who are
morally blameless. E. g., Mullaney v. Wilbur, 421 U.S., at 697-
698 (requirement of proof beyond a reasonable doubt is not
"[limited] to those facts which, if not proved, would wholly
exonerate" the accused). Under our system of criminal justice
even a thief is entitled to complain that he has been
unconstitutionally convicted and imprisoned as a burglar.

We hold that in a challenge to a state criminal conviction
... the applicant is entitled to habeas corpus relief if it is found

7
 that upon the record evidence adduced at the trial no rational
trier of fact could have found proof of guilt beyond a reasonable
doubt. Id. 61 L.Ed.2d at 576-577. (Emphasis
supplied)(Citation omitted).

The Court then noted "The respondents have suggested that this

constitutional standard will invite intrusions upon the power of the States to

define criminal offenses. Quite to the contrary, the standard must be applied

with explicit reference to the substantive elements of the criminal offense as

defined by state law. Whether the State could constitutionally make the

conduct at issue criminal at all is, of course, a distinct question." Id. 61

L.Ed.2d at 577, FN 16. And quite correctly, this Court, citing that footnote,

recognized Due Process demands sufficiency of the evidence be assessed in

view of the trial court's charge to the jury (which of course must track the

indictment):

Gollihar's' standard of measuring evidentiary sufficiency
against the "elements of the offense as defined by the
hypothetically correct jury charge for the case" clearly is not
the same as the Jackson v. Virginia standard of measuring
evidentiary sufficiency against the "substantive elements of the
criminal offense as defined by state law." Compare Jackson, 99
S.Ct. at 2792 fn. 16, with, Gollihar, 46 S.W.3d at 255. Gollihar,
therefore, does not apply to appellant's Jackson v. Virginia
evidentiary sufficiency claim. Fuller v. State, 73 S.W.3d 250,
252 (Tex. Cr. App. 2002).

Prior to Fuller, Malik v. State, 953 S.W.2d 234 (Tex. Cr. App. 1997)

and Gollihar, supra; considered together; stood for the proposition the

"hypothetically correct jury charge" standard of assessing sufficiency of the

evidence was to be applied in both jury charge error cases and evidentiary

4 Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001).

8
sufficiency cases. Fuller v. State, supra, 73 S.W.3d at 252 then made clear

the "hypothetically correct jury charge" standard is not to be employed in

assessing evidentiary sufficiency regarding the sufficiency of the evidence to

prove beyond a reasonable doubt that Appellant Jack Clark assaulted a

public servant, Officer Chris Jennings, by biting his finger.

JACKSON STANDARD MUST BE THE HIGHEST STANDARD OF
REVIEW
Brooks has been criticized for intruding upon the constitutional

factfinding prerogative of the courts of appeals. See, Temple v. State, 342

S.W.3d 572, 620-621 (Tex. App.-Houston [14th Dist.] 2010, pet

granted)(Seymore, J., concurring). As Brooks also mandates Jackson v.

Virginia is "the only standard" to be applied, that may well be its triumph in

the end. "Legal sufficiency of the evidence is a test of adequacy, not mere

quantity. Sufficient evidence is 'such evidence, in character, weight, or

amount, as will legally justify the judicial or official action demanded.' In

criminal cases, only that evidence which is sufficient in character, weight,

and amount to justify a factfinder in concluding that every element of the

offense has been proven beyond a reasonable doubt is adequate to support a

conviction. There is no higher burden of proof in any trial, criminal or civil,

and there is no higher standard of appellate review than the standard

mandated by Jackson. All civil burdens of proof and standards of appellate

review are lesser standards than that mandated by Jackson." Brooks v. State,

supra, 323 S.W.3d at 917 (Cochran, J. concurring).

The Jackson v. Virginia standard of review is however, as a practical

9
matter, not the highest standard of review applied by Texas courts. The

clear and convincing legal sufficiency standard is actually more probing.

"In evaluating evidence for legal sufficiency under a clear and convincing

standard, we review all the evidence in the light most favorable to the

finding to determine whether a reasonable factfinder could have formed a

firm belief or conviction that the finding was true." In re i.F.C., 96 S.W.3d

256, 266 (Tex. 2002). "We resolve disputed fact questions in favor of the

finding if a reasonable factfinder could have done so, and we disregard all
contrary evidence unless a reasonable factfinder could not have done so."

City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005); In re i.F.C.,

supra, 96 S.W.3d at 266. (Emphasis supplied). A clear and convincing

sufficiency review means contrary evidence is not to be disregarded; it is to

be weighed to determine whether it could have been reasonably disregarded.

Jackson v. Virginia is in fact the highest standard of review. Questions

of fact must be resolved with the utmost scrutiny. A reviewing court may

consider whether the trier of fact "got it wrong" because the verdict the trier

of fact renders is irrational considering the evidence presented. See, Laster

v. State, 275 S.W.3d 512,517-518 (Tex. Crim. App. 2009).

As this Court has aptly noted, " ...sometimes appellate review of legal

sufficiency involves simply construing the reach of the applicable penal

provision in order to decide whether the evidence, even when viewed in the

light most favorable to conviction, actually establishes a violation of the

law." Delay v. State, 443 S.W.3d 909,912-913 (Tex. Crim. App. 2014). The

IO
 following analysis will show this case represents one such occurrence where

the trier of fact was not rational. Brooks held in conducting a legal

sufficiency review, (1) reviewing courts are to review all of the evidence,

and not just the evidence that favors the conviction, (2) in the light most

favorable to the prosecution, and (3) affirm the conviction if the evidence is

legally sufficient for a rational trier of fact, and not just any trier of fact, to

find all of the elements of the offense beyond a reasonable doubt. Brooks,

supra, at 323 S.W.3d 899.

Questions that arise are: how much deference should a reviewing court

give to the verdict, what is a "rational" trier of fact, and when this Court

considers all of the evidence in the light most favorable to the verdict, was

the trier of fact rational in finding guilt beyond a reasonable doubt? In

ruling a "great amount of deference" must be given to the verdict of the trier

of fact, the this Court acknowledged it had never previously stated precisely

how much deference it must give to the verdict of the trier of fact, and

especially to the trier of fact's credibility and weight determinations. Brooks,

supra, 323 S.W.3d at 900. Further, "total deference" to the trier of fact's

credibility and weight determinations is not required. Id. at 902 n.l9

(emphasis added). This Court rejected the suggestion from the dissenting

opinion in Lancon v. State, 253 S.W.3d 699, 707-709 (Tex. Crim. App.

2008), that "total deference" is the standard. [d.s And this Court also held

5 Brooks v. State, supra, 323 S.W.3d 902, fn 19, "A dissenting opinion in Lancon stated
that the majority opinion "seems to say that from now on, the level of deference due a
jury's decision will be total deference when the decision is based on an evaluation of
credibility." See Lancon, 253 S.W.3d at 708 (Johnson, J., dissenting). We disagree. Our

II
there is some evidence that a rational trier of fact cannot disregard or

disbelieve. If all of the evidence, even that which is contrary or inconsistent,

must be weighed in a clear and convincing review, then certainly more is

required by Jackson v. Yirginia?

Finally, the standard of proof in circumstantial evidence cases is the

same standard as used in "direct evidence" cases, and a reviewing court may

consider the existence of all alternative reasonable hypotheses in conducting

such a review. Isassi, supra, 330 S.W.3d at 638; Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007); Schexnider v. State, 943 S.W.2d 194,

198 (Tex. App.-Beaumont 1997, no pet.); Wallace v. State, 955 S.W.2d 148,

151 (Tex. App.-Beaumont 1997, no pet.); Smith v. State, 961 S.W.2d 501,

504 (Tex. App.-San Antonio 1997, no pet.); Richardson v. State, 973

decision in Lancon merely recognizes that the jury is the "sole judge of a witness's
credibility, and the weight to be given the testimony" thus requiring the reviewing court
to defer to the jury on these determinations (i .e., view the evidence in the light most
favorable to the verdict). Viewing the evidence in the light most favorable to the verdict,
however, begins the Jackson v. Virginia legal-sufficiency analysis. The Jackson v.
Virginia standard still requires the reviewing COUlt to determine whether "any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt." See Jackson, 443 U.S. at 319,99 S.Ct. 2781 (emphasis in original); Watson, 204
S.W.3d at 418 n. 7 (Hervey, J., dissenting). This is the portion of the Jackson v. Virginia
standard that essentially incorporates a factual-sufficiency review. See Clewis v. State,
876 S.W.2d 428, 438-39 (Tex.App.-Dallas 1994) (Jackson v. Virginia standard
necessarily encompasses a factual-sufficiency review), vacated, 922 S.W.2d at 136."

6 While it is axiomatic that appellate courts do not engage in credibility assessments, the
Court of Criminal Appeals has recognized that an appellate court must, at times,
determine whether a jury's reliance upon certain evidence to support its conclusion is
rational. See, Shaw v. State, 243 S.W.3d 647, 658 (Tex. Crim. App. 2007), "The
requirement that the evidence must rationally support a jury finding before a defensive
instruction is required serves to preserve the integrity of the jury as the factfinder by
ensuring that it is instructed as to a defense only when, given the evidence, that defense is
a rational alternative to the defendant's criminal liability. If a jury were instructed as to a
defense even though the evidence did not rationally support it, then the instruction would
constitute an invitation to the jury to return a verdict based on speculation." (Footnotes
omitted).

12
 S.W.2d 384, 385 (Tex. App.-Dallas 1998, no pet.).

THE "HYPOTHETICALLY CORRECT" JURY CHARGE
STANDARD DOES NOT APPLY

As a result of Fuller and Brooks, the "hypothetically correct jury

charge" standard does not apply. Moreover, Malik v. State, supra, overruled

Benson v. State, 661 S.W.2d 708, 715 (Tex. Cr. App. 1982)("We hold that

when a charge is correct for the theory of the case presented we review the

sufficiency of the evidence in a light most favorable to the verdict by

comparing the evidence to the indictment as incorporated into the charge.");

and Boozer v. State, 717 S.W.2d 608, 611 (Tex. Cr. App. 1984)("Under the

trial court's charge in the instant case, the only verdict authorized in view of

the evidence was 'not guilty;' restated, had the jury followed the trial court's

instructions, appellant would have been acquitted."); they stood for the

proposition sufficiency of the evidence is assessed against the charge given.

Malik v. State, supra, 953 S.W .2d at 239. Considering the holdings in

Fuller and Brooks that the "hypothetically correct jury charge" standard no

longer applies in assessing evidentiary sufficiency pursuant to Due Process

of Law, we submit the more sensible rule of Benson and Boozer should

again be the law. See generally, Bledsue v. Johnson, 188 F.3d 250, 266 (5th

Cir. 1999)(Wiener, J., dissenting).'

7 !lA. Sufficiency Analysis Under Jackson v. Virginia
In reviewing challenges to constitutional sufficiency of the evidence, we begin with
the well-known Jackson v. Virginia standard. As noted, we must determine whether, in
the light most favorable to the prosecution, "any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt," with "explicit reference
to the substantive elements of the criminal offense as defined by state law. " When the

13
 THE STATE UTTERLY FAILED TO PROVE WHAT WAS
ALLEGED

Did the evidence show beyond a reasonable doubt Appellant bit

Officer Jennings' finger? It certainly did not. As we pointed out in our brief,

the evidence came nowhere near rebutting what Appellant Jack Theotrice

Clark, Jr. maintained from the beginning-he did not intentionally bite the

finger of Officer Jennings. The former jail doctor fully corroborated

Appellant'S excited utterance the officer had put his hand in Appellant's

mouth causing a cut under the tongue. (VI R.R. at 44-46)(State's Exhibit One,

arrest video). Moreover, a former shift sergeant at the Taylor County Jail

described Appellant as "disheveled" when he came in contact with him on

September 13, 2009, and recalled Appellant telling him then "that he thought

they sprayed their hand and stuck it in his mouth ... " (VI R.R. at 63-65).

Appellant steadfastly maintained his position from the initial res gestae

statements that can be heard in the video of the scuffle that the officer was

Jackson Court formulated this standard, it re-emphasized the Fourteenth Amendment's
guarantee that "no person shall be made to suffer the onus of a criminal conviction except
upon sufficient proof," but contemplated the intrusion by federal courts into state
convictions as a matter of finality and federal-state comity. The Court concl uded that
finality of judgment should not be achieved at the expense of a constitutional right,
stating:

The question whether a defendant has been convicted upon inadequate
evidence is central to the basic question of guilt or innocence. The
constitutional necessity of proof beyond a reasonable doubt is not
confined to those defendants who are morally blameless. Under our
system of criminal justice even a thief is entitled to complain that he has
been unconstitutionally convicted and imprisoned as a burglar.
(Footnotes and citations omitted).

14
sticking his hand in Appellant's mouth, through his testimony at trial. And in

order for there to be a bite, two opposing jaws must clamp down on the object

that was allegedly bit. "[A] bite implies intentional conduct because the actor

must not only take the object into his mouth, but also close his teeth on the

object." York v. State, 2001 WL 225490 at Slip Op 2 (Tex. App.-Houston [1st

Dist.] 2001, no pet.)(unpublished memorandum opinion).

CONCLUSION

Appellant asks this Court to weigh all the evidence and determine

whether any rational trier of fact could have found beyond a reasonable

doubt he bit the officer's finger, as alleged. Considering the tenuous nature

of the evidence adduced at trial regarding the alleged bite, Appellant further

asks for a finding the determination beyond a reasonable doubt he bit the

officer's finger was not rational. Review should therefore be granted in

order to clarify for the bench and bar Due Process of Law means the State

must prove what it alleges in order to convict, and Appellant's conviction of

assault on a public servant should therefore be reversed and reformed to

show an acquittal. Burks v. United States, 437 U.S. 1,98 S.Ct. 2141,57

L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19,98 S.Ct. 2151, 57 L.Ed.2d

15 (1978).

15
 PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Court grant discretionary review and oral argument and, after

full briefing on the merits, issue an opinion reversing and this conviction to

show a judgment of acquittal, or, alternatively, remand this cause to the

Court of Appeals for a proper sufficiency analysis.

Respectfully submitted,
lsi Stan Brown
STAN BROWN
P.O. BOX 3122
ABILENE, TEXAS 79604
325-677 -1851
FAX 325-677-3107
STATE BAR NO. 03145000
EMAIL: mstrb@aol.com

ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

I hereby certify that on this 17th day of April, 2015, a true and
correct copy of the above and foregoing Petition for Discretionary Review
was emailed to Patricia Dyer, Appellate Section, Taylor County District
Attorney's Office, Taylor County Courthouse, Abilene, Texas
dyerp@taylorcountytexas.org; lames Eidson, District Attorney, Taylor
County Courthouse, Abilene, Texas eidsonj@taylorcountyteas.org; and to
Ms. Lisa McMinn, State Prosecuting Attorney, at
information@spa.texas.gov.

lSI Stan Brown
STAN BROWN

16
 CERTIFICATE OF COMPLIANCE

I hereby certify that according to my computer program used to
prepare the foregoing document, the word count, in accordance with Tex. R.
App. P. 9.4, is 4105 words; and further certify that the brief is in Times
14-point type, except for footnotes which are Times 12-point type.
lSI Stan Brown
STAN BROWN

17
APPENDIX
Opinion filed March 12, 2015

In The

~ltbtntb ~ourt of ~taIs
No. 11-12-00134-CR

JACK THEOTRICE CLARK, JR., Appellant
v.
THE STATE OF TEXAS, Appellee

On Appeal from the 350th District Court
Taylor County, Texas
Trial Court Cause No. 9708-D

OPINION
The trial court convicted Appellant, Jack Theotrice Clark, Jr., of the offense
of assault on a public servant. 1 After Appellant pleaded "true" to an enhancement
paragraph, the trial court assessed his punishment at confinement for a term of ten
years. In his sole issue on appeal, Appellant challenges the sufficiency of the
evidence. We affirm.
I. The Charged Offense
The grand jury indicted Appellant for the offense of assault on a public
servant. The indictment alleged that, on or about September 13, 2009, Appellant

ITEx. PENAL CODE ANN. § 22.01(b)(J) (West Supp. 2014).
intentionally and knowingly caused bodily injury to Officer Christopher Jennings,
a person Appellant knew was a peace officer attempting to lawfully discharge his
official duty, by biting Officer Jennings on the finger. A person commits the
offense of assault on a public servant if he intentionally, knowingly, or recklessly
causes bodily injury to a person the actor knows is a public servant while the
public servant is lawfully discharging an official duty. PENAL § 22.01(a)(1),
(b)(1).2 In addition, the indictment included an enhancement paragraph that listed
a prior felony conviction for delivery of marihuana. See TEX. HEALTH& SAFETY
CODEANN. § 481.120 (West 2010) (Offense: Delivery of Marihuana). An offense
of assault on a public servant with an enhancement is punished as a felony of the
second degree. See PENAL§§ 12.42(a), 22.01 (b)(1).
Appellant pleaded "not guilty." The trial court found Appellant guilty of
assault on a public servant.
II. Evidence at Trial
John Wilson, a police officer with the Abilene Police Department, responded
to a disturbance call early in the morning on September 13, 2009. He wore an
Abilene police uniform and a duty belt and drove a marked patrol car. Appellant
approached Officer Wilson's patrol car as Officer Wilson arrived on the scene of
the disturbance call. Officer Wilson asked Appellant to stand in front of the patrol
car so the in-car video camera could record their interaction. Officer Christopher
Jennings arrived at the scene shortly after Officer Wilson; Officer Jennings also
wore an Abilene police uniform with badges and drove a marked patrol car.
Officer Wilson requested, for safety reasons, that Appellant keep his hands
out of his pants pockets. Officer Wilson was concerned because he was not sure if
Appellant was armed. Appellant initially stood in front of the patrol car but later

2 Although the statute allows for a conviction based on reckless conduct, the indictment did not

include reckless conduct in its charge. Therefore, we will only consider whether Appellant's conduct was
intentional or knowing.
2
moved out of view from the video camera, and he continued to place his hands in
his pockets. After several requests by Officer Wilson for Appellant to remove his
hands from his pockets, Officer Wilson grabbed Appellant's wrist and employed a
"soft hand technique" to get Appellant's hands out of Appellant's pockets.
Appellant resisted, and a struggle ensued. Appellant then tried to escape to
his vehicle. Officer Wilson said that, at this time, he used a "hard hands"
technique, sprayed Appellant with pepper spray, and struck Appellant with an
ASP3 several times, but Appellant refused to comply with the orders. A third
Abilene police officer, Chris Lazirko, arrived on scene during the struggle, and the
three officers-Wilson, Jennings, and Lazirko-finally subdued Appellant.
Officer Jennings corroborated Officer Wilson's testimony that they had
asked Appellant a number of times to remove his hands from his pockets because
they were unsure if he was armed and were concerned about their safety. After
Appellant repeatedly put his hands back in his pockets, both Officer Jennings and
Officer Wilson approached Appellant, and when Officer Wilson grabbed
Appellant's arm, Appellant resisted. The officers were then forced to use pepper
spray, punches, and a metal baton or ASP to control Appellant and to keep him
from grabbing the officers' guns.
During the struggle, Appellant drew his head back and then lunged forward
to bite Officer Jennings's finger or hand, and Appellant bit Officer Jennings on the
index finger, which broke the skin, and also on the middle finger. Officer Jennings
said that the bite, which he thought Appellant did intentionally, caused
"[e]xcruciating pain."
Appellant testified that he pulled his arm away from Officer Wilson's "soft
hand technique" because he believed contact was not justified. He said that the
officers hurt him and that he tried to escape from their physical contact. Appellant

3 An ASP is a metal club or baton.
3
also said that he was never told why he was being detained until after he was
handcuffed by the officers. Appellant said that the officers sprayed pepper spray
on their hands and put their fingers in his mouth and that it was impossible for his
teeth not to touch their fingers. Appellant claimed he never bit anyone and never
wanted to hurt the police officers even though he was strong enough to do so.
Evette Aguilar, the girl with whom Appellant had argued before the police
arrived, witnessed the struggle and testified that she never saw Appellant bite
either officer. Martha Anne Walke, a doctor that treated Appellant two days after
the struggle, testified that Appellant told her that a police officer scratched the
inside of his mouth; she also testified that she observed a scratch in Appellant's
mouth. Officer Jennings denied that he put his fingers in Appellant's mouth.
After the incident, Officer Jennings went to Hendrick Medical Center, where
medical personnel treated and took pictures of his wounds. Steven Kastl, a board-
certified emergency medicine doctor, testified that he observed bite marks on
Officer Jennings's left index and middle fingers at the hospital.
The defense called Robert Glenn Williams, a dentist and board-certified
forensic odontologist," to testify about the marks on Officer Jennings's fingers.
Dr. Williams could not conclude one way or another, based upon a review of
photographs of the supposed bite marks, whether a bite caused the wound depicted
in the pictures. Dr. Williams also opined that Dr. Kastl's testimony-that he
observed bite marks-should be discounted because Dr. Kastl did not apply any
forensic techniques and was swayed by Officer Jennings's belief that the wounds
came from a bite.

4A forensic odontologist is a dentist that specializes in the application of dentistry to the law.
They help identify deceased people, compare bite marks, and serve as expert witnesses, among other
things.
4
 III. Issue Presented
Appellant asserts m a single issue that the evidence was insufficient to
support his conviction.
IV. Standard of Review
We review the sufficiency of the evidence under the standard of review set
forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex.
App.-Eastland 2010, pet. ref d). Under the Jackson standard, we examine all of
the evidence in the light most favorable to the verdict and determine whether,
based on that evidence and any reasonable inferences from it, any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App.2010).
The trier of fact is the sole judge of the weight and credibility of the
evidence, and a reviewing court may not reevaluate the weight and credibility of
the evidence so as to substitute its own judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The reviewing
court must presume that the factfinder resolved any conflicting inferences in favor
of the prosecution and defer to that resolution. Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007).
V. Analysis
Appellant argues that the evidence was insufficient to show that he bit
Officer Jennings and that Officer Jennings was acting in the lawful discharge of his
official duty when the incident occurred. The Texas Court of Criminal Appeals
has broadly interpreted the definition of bodily injury to include "even relatively
minor physical contacts so long as they constitute more than mere offensive
touching." Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). Lawful

5
discharge of an official duty "means that the public servant is not criminally or
tortiously abusing his office as a public servant." Hall v. State, 158 S.W.3d 470,
475 (Tex. Crim. App. 2005). Examples of such abuse include acts of "official
oppression" or "the use of unlawful, unjustified force." Id. (citing PENAL § 39.03
(Official Oppression». Knowledge that the assaulted person was a public servant
is presumed if the person was wearing a distinctive uniform or badge that indicated
the person's employment as a public servant. PENAL § 22.01(d).
Direct evidence of each element is not required to support a conviction;
circumstantial evidence alone can be sufficient to establish guilt. Hooper v. State,
214 S.W.3d 9,14-15 (Tex. Crim. App. 2007) (citing Guevara v. State, 152 S.W.3d
45, 49 (Tex. Crim. App. 2004». In addition, "a jury may infer that a victim
actually felt or suffered physical pain because people of common intelligence
understand pain and some of the natural causes of it." Wingfield v. State, 282
S.W.3d 102, 105 (Tex. App.-Fort Worth 2009, pet. ref'd) (citing Randolph v.
State, 152 S.W.3d 764, 774 (Tex. App.-Dallas 2004, no pet.j). Juries may utilize
common sense and apply common knowledge gained from ordinary experiences in
life to draw reasonable inferences from the evidence. Id. (citing Wawrykow v.
State, 866 S.W.2d 87,88-89 (Tex. App.-Beaumont 1993, pet. ref'd) (finding that
a rational jury could have inferred that pushes to the chest caused "physical
pain"»; see also Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.-Corpus
Christi 1988, pet. refd) (stating that people of common intelligence understand
what naturally causes physical pain).
A. Bodily Injury Element
Appellant claims there is insufficient evidence to prove he bit Officer
Jennings. An assault against a public servant is a result-oriented offense. Brooks v.
State, 967 S.W.2d 946, 950 (Tex. App.-Austin 1998, no pet.); see Johnson v.
State, 364 S.W.3d 292, 298 (Tex. Crim. App. 2012). The focus is on the result of

6
the defendant's action and his culpable mental state, not on the precise act or the
nature of the conduct committed by the defendant. Johnson, 364 S.W.3d at 298;
Brooks, 967 S.W.2d at 950. The State presented as evidence a picture of Officer
Jennings's wounded fingers; the picture was taken at the hospital after the struggle.
Dr. Kastl, the emergency room doctor, testified that he observed the injuries on
Officer Jennings's fingers. Officer Jennings testified that his fingers were injured
by Appellant and that the injury was painful. Officer Jennings also testified that
Appellant bit two of his fingers and that the bite broke the skin on his index finger.
The State adduced sufficient evidence that Appellant knowingly or intentionally
caused bodily injury to Officer Jennings's finger.
B. Element of Acting in Lawful Discharge of Duty
Appellant also argues that the testimony of Stan Standridge, Chief of Police
for the City of Abilene, is evidence that Officer Jennings did not act in the lawful
discharge of his duty. An officer investigating a "suspicious circumstance," while
in uniform and driving a marked patrol car, is evidence the officer is acting in the
lawful discharge of his official duty. Farris v. State, 819 S.W.2d 490, 496 (Tex.
Crim. App. 1990), overruled on other grounds by Riley v. State, 889 S.W.2d 290,
298 (Tex. Crim. App. 1993). Chief Standridge also acknowledged that it is
Abilene police policy "that when feasible the officers must state their purpose to
detain or arrest a suspect, give the reason for the detention or arrest, and warn the
suspect that force will be used."
The evidence at trial indicated that the officers, both in uniform and driving
marked patrol cars, reported to the scene of the struggle to investigate a
disturbance call. During their encounter with Appellant, Appellant repeatedly
failed to comply with their requests to stay in front of the patrol car and keep his
hands out of his pockets. When Appellant failed to comply, Officer Wilson
attempted to enforce compliance through a "soft hand technique," but Appellant

7
resisted. The officers then escalated their attempts to control Appellant and used
"hard hands," pepper spray, and an ASP to force his compliance. Appellant
continued to resist and was eventually subdued by three officers. Officer Jennings
testified that, because of Appellant's actions before and during the struggle, the
officers had no chance to inform Appellant that he was being detained.
We conclude from our review of the record that there is sufficient evidence
from which the trier of fact could have determined beyond a reasonable doubt that
Appellant knowingly or intentionally injured Officer Jennings's finger while the
officer was acting in the lawful discharge of his official duties. See Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. We overrule Appellant's sole issue.
VI. This Court's Ruling
We affirm the judgment of the trial court.

MIKE WILLSON
JUSTICE

March 12,2015
Publish. See TEX.R. ApP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

8
 11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT

Jack Theotrice Clark, Jr., * From the 350th District
Court of Taylor County,
Trial Court No. 9708-D.

Vs. No. 11-12-00134-CR * March 12,2015

The State of Texas, * Opinion by Willson, J.
(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)

This court has inspected the record in this cause and concludes that there
is no error in the judgment below. Therefore, in accordance with this court's
opinion, the judgment of the trial court is in all things affirmed.