ACCEPTED
03-14-00702-CR
4934719
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/17/2015 1:43:27 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00702-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
TEXAS AT AUSTIN, TEXAS 4/17/2015 1:43:27 PM
JEFFREY D. KYLE
Clerk
********
ANTONIOUS DESMOND BRINSON
VS.
THE STATE OF TEXAS
********
ON APPEAL FROM THE 264th DISTRICT COURT
OF BELL COUNTY, TEXAS
Cause No. 72150
******
STATE’S BRIEF
******
HENRY GARZA
DISTRICT ATTORNEY
BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
Oral Argument Not Requested
1
TABLE OF CONTENTS
ITEM PAGE
Index of Authorities …………………………………………………………………… 3
Statement Regarding Oral Argument ………………………………………….. 4
Statement of the Case ………………………………………………………………… 4
Statement of Facts ……………………………………………………………………... 5
Summary of State’s Argument ……………………………………………………. 11
Argument and Authorities …………………………………………………………. 11
Issue on Appeal ……………………………………………………………….. 11
WAS EVIDENCE SUFFICIENT TO PROVE BEYOND
A REASONABLE DOUBT THAT THE APPELLANT
ASSAULTED VICTIM AS ALLEGED IN THE
INDICTMENT?
Standard of Review …………………………………………………………. 11
Application and Analysis …………………………………………………. 12
Prayer ……………………………………………………………………………………… 17
Certificate of Compliance with Rule 9 ……………………………………….. 18
Certificate of Service ………………………………………………………………… 18
2
INDEX OF AUTHORITIES
CASES PAGE
Brooks v. State, 323 S.W.3d 893 ………………………………………………. 12
(Tx. Cr. App. 2010)
Hacker v. State, 389 S.W.3d 860 ……………………………………………….. 16
(Tx. Cr. App. 2013)
Isassi v. State, 330 S.W.3d 633 …………………………………………………. 12, 17
(Tx. Cr. App. 2010)
Jackson v. Virginia, 443 U.S. 307 (1979) …………………………………… 11, 12
Murray v. State, __S.W.3d__, No. PD-1230-14 …………………………….. 16
(Tx. Cr. App. April 15, 2015)
Williams v. State, 235 S.W.3d 742 …………………………………………… 12
(Tx. Cr. App. 2007)
3
STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The Appellant, Antonious Desmond Brinson, was charged by
indictment with the offense of assault with bodily injury on family
member, having a prior conviction for assault with bodily injury on a
family member. The indictment also included allegations in the second
paragraph that the Appellant had been previously convicted of a felony
offense for purposes of enhancement of sentence. (CR-4).
The Appellant was tried before a jury in the 264th District Court of
Bell County, Texas, Judge Martha J. Trudo presiding. The jury found the
Appellant guilty as charged in the indictment. (CR-85, 87; RR7-144).
Upon the Appellant’s election (CR-64), the same jury considered
the issue of punishment. The jury found the enhancement allegation in
the indictment to be true and assessed punishment at 13 years in the
Texas Department of Criminal Justice Institutional Division and a fine of
$1,000.00. (CR-86, 87; RR8-41).
The Appellant gave timely notice of appeal (CR-91) and the trial
court certified his right to do so. (CR-78).
4
STATEMENT OF FACTS
The Appellant and the State entered into a stipulation, approved
by the trial court, that the Appellant had been previously convicted of
assault with bodily injury upon a family member as alleged in the
indictment. (RR6-5, 6).
On the evening of October 10, 2013, the victim, Javonda Johnson,
was at home with her 8 children. (RR6-63, 65). There had been a
birthday party that day for one of the children and a number of toys had
been left outside in the front yard, including a metal baseball bat. (RR6-
64). The Appellant was the father of two of her children and lived with
them on a come and go basis and all of the children considered him their
stepfather. (RR6-98, 99; RR7-9).
That day both the Appellant and the victim had been drinking
heavily (RR6-69, 110, 111; RR7-12, 13), they had argued, and the
Appellant left. At about 8:00 p.m., the victim’s 13 year old daughter, M.J.,
heard a knock on the door. She looked out and saw the Appellant and
three other men. (RR6-65, 66, 100). She asked for, and received,
permission from her mother to open the door. (RR6-66, 67).
5
Javonda Johnson went outside to talk with the Appellant. (RR6-67,
68). M.J. claimed at trial that her mother then picked up the baseball bat
and swung at the Appellant, who caught it in his hand. (RR6-68, 69, 72).
When she gave her handwritten statement to the police that night,
however, M. J. stated that the Appellant had grabbed the bat, charged at
her mother, and hit her with it. (RR6-76, 77).
M.J. testified that both the Appellant and the victim fell to the
ground and that he hit her in the face with the bat while she was
attempting to get it away from him. (RR6-72). She stated that the
Appellant had hit her mother in the head with the bat and that she saw
him strike the blow. (RR6-74, 78). She said that the first time he hit her
with the bat it was “on purpose” and he simply grabbed the bat and
swung it at her mother. (RR6-94).
M.J. conceded that she had spoken with her mother a lot about the
case (RR6-92) and that the Appellant had moved back in with the victim
and her family after the incident. (RR7-93).
M.J.’s older sister, T. J., heard the knock on the door and looked out
to see the Appellant and three of his friends. (RR6-100). She heard the
Appellant tell her mother to come outside so that he could ask her some
questions. She also heard her mother say that she was not going to walk
6
out there because there was “a bunch of them and only one of her.”
(RR6-102).
T.J. left the room for a short time and when she returned she saw
M.J. standing in the doorway and heard her mother yelling. T.J. got her
younger siblings to sit down and then went to the doorway. (RR6-102,
103). She saw the Appellant and her mother on the ground wrestling
with the bat between them. She said that the bat hit her mother in the
face and that the Appellant had the bat in his hands and her mother
pushed it away. She said the Appellant hit her mother in the face with
the bat. (RR6-104, 105).
T.J. called 911 because she could see a visible knot on her
mother’s forehead and she was bleeding. (RR6-105). See State’s Exhibit
4. (RR9).
For the first time at trial, T.J. claimed that she saw her mother
grab the bat first and stated that she believed that the Appellant then
took it out of her hand. She said both were punching the other after
they fell to the ground. (RR6-107, 108).
T.J. wrote out a handwritten statement for the police minutes
after the incident. In that statement she said that the Appellant was
angry with the victim and that he attacked her with the metal baseball
7
bat. She did not say anything about her mother picking up the bat first.
(RR6-113, 114, 130, 131). Like her sister, she had talked about the case
with her mother. She also confirmed that the Appellant was living with
them again about two weeks after the incident. (RR6-114, 115).
T. J. never saw any injuries on the Appellant but did see the knot
on her mother’s head. (RR6-132). She called 911 because the Appellant
had attacked her mother. (RR6-134).
Javonda Johnson testified that two of her nine children had been
fathered by the Appellant and that he had stayed with her the night
before the incident. She said that they had been drinking a lot of beer
and arguing. (RR7-6, 8, 11, 12). That evening the Appellant had come to
the door with three other men. She and the Appellant went outside and
started arguing. (RR7-12, 13). He was upset about her going to other
people’s houses and talking to “somebody”. He was probably angry
because he thought she was cheating on him. (RR7-15). Javonda is 5’4”
tall and weighs 140 pounds. The Appellant is 6’2” tall and weighs 215
pounds. (RR7-16).
At trial Javonda said that she picked up the bat and they were
struggling over it and fell to the ground. She said that when she
managed to get back up she had a knot on her head. She claimed that
8
she did not remember the Appellant swinging at her and they both had
their hands on it during the struggle. (RR7-1&).
She stated that she obviously was hit because she had a softball
sized knot on her forehead. (RR7-19). She was pregnant with the
Appellant’s child at the time. (RR7-40).
Javonda Johnson admitted that she had told the 911 operator that
the Appellant had ordered her outside to confirm something he had
heard about her and that he had picked up the bat and told her that if
she was not truthful he would “kick her ass”. She told the operator that
he then hit her on the head with the bat. (RR7-72). See 911 recording
State’s Exhibit 7. (RR9). She also confirmed that she had told the first
police officer on the scene that the Appellant had picked up the bat and
hit her on the head with it. (RR7-24). In her handwritten statement she
stated that the Appellant had accused her of something, put his hands
on her and then hit her on the head with the bat. (RR7-24-26).
Javonda also signed a release of obligation stating that she did not
wish to pursue charges against the Appellant and included in that
document that the Appellant had hit her on the head with the bat. (RR7-
27). State’s Exhibit 9 (RR9).
9
She and the Appellant made up a couple of days later. (RR7-30).
She then gave the Appellant’s attorney a non-prosecution statement
requesting that the case be dismissed. (RR7-34, 35, 43, 44).
In her failure to cooperate with the prosecution of the Appellant,
Javonda Johnson followed an established pattern. Her children had
called 911 about ten days earlier when the Appellant had grabbed her
around the neck during an argument. She declined to press charges.
(RR7-20). Ms. Johnson was the victim in the case resulting in the 2012
conviction for assault on a family member charged in the indictment
and stipulated to by the Appellant. In that case, during an argument
resulting from his accusations that she was cheating, he punched her
and broke her nose. She attempted for decline to prosecute in that case
as well. (RR7-61). In 2013 the Appellant had thrown a bowl, cutting her
forehead, but again she declined to prosecute. (RR7-60).
Javonda said that she never wants to prosecute the Appellant.
(RR7-64). She told Killeen Police Victim’s Assistance Officer Lisa
Hatfield that they had children together and she did not want to see him
go to prison. She testified during the punishment hearing in this case
that she never wanted the trial and pled for leniency. (RR8-10, 13).
10
SUMMARY OF STATE’S ARGUMENT
When all of the evidence is reviewed in the light most favorable to
the verdict and deference is given to the jury’s rational inferences from
that evidence and its exclusive right to determine the credibility and
weight of the evidence and to resolve conflicts in the evidence, it cannot
be said that a rational jury could not have found beyond a reasonable
doubt that the Appellant committed the offense as alleged in the
indictment.
ARGUMENT AND AUTHORITIES
Issue on Appeal
Was the evidence insufficient to prove beyond a reasonable doubt
that the Appellant assaulted the victim as alleged in the indictment?
Standard of Review
Due process of law requires that the State prove, beyond a
reasonable doubt, every element of the offense charged in the
indictment. Jackson v. Virginia, 443 U.S. 307, 313 (1979). In reviewing
the sufficiency of the evidence to support the conviction the court must
consider all of the evidence in the case in the light most favorable to the
verdict in order to determine whether, based upon the evidence and
11
reasonable inferences therefrom, a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt.
Brooks v. State, 323 S.W. 3d 893, 899 (Tx. Cr. App. 2010).
In reviewing the evidence in the light most favorable to the
verdict, the court must presume that the trier of fact resolved conflicts
in the testimony, weighed the evidence, and drew reasonable inferences
from that evidence in a manner that supports the verdict. Jackson at
318. The court must consider only whether the fact finder reached a
rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tx. Cr. App. 2010).
The weight and credibility of the evidence is solely for the fact
finder and the court will not re-evaluate those matters nor substitute its
judgment for that of the fact finder. Isassi at 638; Williams v. State, 235
S.W.3d 742, 750 (Tx. Cr. App. 2007).
Application and Analysis
In this case the pertinent part of the indictment alleged that the
Appellant did “….intentionally, knowingly, or recklessly cause bodily
injury to Javonda Johnson…by hitting and pushing and striking the said
Javonda Johnson with the hands and fists of the defendant and by hitting
and striking the said Javonda Johnson in the head and face with a metal
12
baseball bat….”. (CR-4). Those elements were set out in the trial court’s
charge as well. (CR-69).
The Appellant contends that the evidence was insufficient to
prove that he intentionally, knowingly, or recklessly caused bodily
injury to Ms. Johnson by hitting her with his fists or a metal bat.
(Appellant’s Brief at 3). In so arguing he relies upon one side of the
conflicting testimony in the case, while totally ignoring the other side.
This disregards the exclusive right of the jury to determine the
credibility and weight of the evidence was well as the presumption that
the jury resolved conflicts in the evidence in favor of its verdict of guilty.
Clearly, credibility became a major issue in the case. Javonda
Johnson had a long history of covering for the Appellant after he had
assaulted her and her testimony at trial was sometimes in conflict with
what she had related to the 911 operator, the police officers, and the
victim coordinator. She admittedly told these witnesses that the
Appellant made accusations against her and had picked up the baseball
bat and charged at her swinging it and striking her in the face. Her
daughter, M.J., said that she saw the Appellant swing the bat and strike
her mother in the face. Javonda Johnson had a knot on her head the size
of a softball.
13
The victim’s statements at the time of the offense, as well as those
of her daughters, were completely consistent with the Appellant having
attacked her in anger with the baseball bat and having struck her in the
face.
It was only at trial that Ms. Johnson and her daughters suddenly
claimed that she had picked up the bat and that she had been hit is some
undefined way after she and the Appellant had fallen to the ground to
struggle over the bat. Even then, however, M.J. still stated that the
Appellant clearly hit her mother with the bat “on purpose” and that he
had grabbed the bat and swung it at her. (RR6-94).
The jury heard that Javonda Johnson was completely opposed to
prosecuting the Appellant and signed a request to that effect even while
stating that he had attacked her with the bat. It also heard the she had
offered a non-prosecution statement to try to persuade the State not to
pursue the case. She and the Appellant had reconciled a couple of days
after the assault and moved back in together. M.J. and T.J. had lived in
the house with both their mother and the Appellant. Their mother had
talked to them about the case. Their testimony had changed by the time
of trial.
14
Furthermore, the Appellant had physically assaulted Javonda
Johnson three times before and each time she had attempted to drop the
charges to protect the father of two of her nine children and had been
successful twice.
The new version of the offense by the time of trial obviously
created a conflict in the evidence, as to who first picked up the bat and
whether or not the victim was attacked directly by the Appellant with
the bat or was injured by the Appellant with the bat during a struggle.
Nevertheless, there was evidence before the jury that the Appellant had
started an argument with the victim, ordered her to come outside,
picked up a metal baseball bat, and hit her in the face with it.
It must be presumed that the jury weighed the credibility of all of
this evidence and then resolved the conflicts in the way that support the
verdict of guilty. It also must be presumed that the jury drew all of the
rational inferences from that evidence necessary to support its verdict.
When all of the evidence is considered there was sufficient evidence for
a rational jury to find beyond a reasonable doubt that the Appellant
intentionally, knowingly, or recklessly caused bodily injury to Javonda
Johnson by striking her with his hands or a metal baseball bat.
15
The Appellant simply relies upon that part of the evidence in
which the victim and her daughters sought to protect him, while
ignoring all of the rest of the evidence supporting the verdict. However,
the appellate courts are not permitted to use such a “divide and
conquer” strategy in evaluating the sufficiency of evidence. Instead the
court must consider the cumulative force of all of the evidence and
where the record supports conflicting inferences, must presume that
the jury resolved those conflicts in favor of the verdict, and then must
defer to that determination. Murray v. State, __S.W.3d__. No. PD-1230-14
(Tx. Cr. App. April 15, 2015), citing Hacker v. State, 389 S.W.3d 860, 873
(Tx. Cr. App. 2013).
In this case there was evidence that the Appellant picked up the
baseball bat and struck Ms. Johnson in the face “on purpose” from which
the jury could reasonably find that he struck her with the bat
intentionally, knowingly, or recklessly. The Appellant does not contend
that she did not suffer bodily injury from that blow or challenge the
proof of the relationship between them as alleged in the indictment.
The fact that there is conflicting testimony that the blow may have been
somehow struck during the course of a struggle for the bat and that the
victim first picked it up does not mean that the jury could not have
16
rationally and reasonably inferred that the blow was struck with the
requisite culpable mental state. The jury weighed the credibility of the
evidence and reconciled the conflicts in the evidence and presumably
did so in favor of the verdict it rendered. That determination must be
given great deference. The role of the appellate court is restricted to
guarding against the rare occurrence when a fact finder does not act
rationally in its determination. Isassi at 638. This is not such an
occurrence.
PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be, in all things, be affirmed.
Respectfully Submitted,
HENRY GARZA
District Attorney
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
P.O. Box 540
Belton, Tx 76513
(254) 933-5215
FAX (254) 933-5704
DistrictAttorney@co.bell.tx.us
SBA No. 15200000
17
CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Brief is in compliance with Rule 9
of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 2,736 words.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, Tim Copeland, Counsel for Appellant, by electronic
transfer via Email, addressed to him at ecopeland63@yahoo.com on this
17th day of April, 2015.
/s/ Bob D. Odom
BOB D. ODOM
Assistant District Attorney
18
Antonious Desmond Brinson v. State
Combined Opinion