ACCEPTED
06-15-00151-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/1/2015 4:45:30 PM
DEBBIE AUTREY
CLERK
CASE NO. 6-15-00151-CR
In The FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
COURT OF APPEALS
12/2/2015 8:52:00 AM
SIXTH DISTRICT OF TEXAS
DEBBIE AUTREY
AT TEXARKANA Clerk
________________________________________________________________________
EVENDER GENE JACKSON, JR., Appellant
VS.
THE STATE OF TEXAS, Appellee
On Appeal from 196th Judicial District Court
of Hunt County, Texas
Trial Court Cause No. 30,536
Honorable J. Andrew Bench, Judge Presiding
APPELLANT'S BRIEF
________________________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now the Appellant and submits this brief pursuant to the provisions of the
Texas Rules of Appellate Procedure in support of his request for the judgment of
conviction to be overturned in Cause No. 30,536.
Oral Arguments Requested
IDENTITY OF PARTIES AND COUNSEL
Appellant's Attorney:
Jessica Edwards
P.O. Box 9318
Greenville, TX 75404
Appellant's Attorney at Trial:
Jeffrey Jason Jackson
1101 Main Street
Commerce, TX 75428
Appellee:
The State of Texas by and through
Calvin Grogan
Assistant Hunt County District Attorney
4th Floor Hunt County Courthouse
2507 Lee Street
Greenville, TX 75401
2
TABLE OF CONTENTS
Identity of Parties and Counsel 2
Table of Contents 3
Index of Authorities 4
Statement of the Case 6
Issues Presented 6
Statement of Facts 6
Point of Error Number One 9
Point of Error Number Two 13
Point of Error Number Three 15
Prayer for Relief 21
Certificate of Service 21
Certificate of Compliance 22
3
INDEX OF AUTHORITIES
Case Authority Page(s)
Federal Cases
Jackson v. Virginia, 443 U.S. 307 (1979) 16
Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955) 14
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) 13,14
State Cases
Armstead v. State, 977 S.W.2d 791(Tex.App.-Fort Worth 1998, pet. ref’d) 17
Brooks v. State, 580 S.W.2d 825 (Tex.Crim.App. [Panel Op.] 1979) 17
Cathey v. State, 992 S.W.2d 460 (Tex.Crim.App.1999) 19
Cocke v. State, 201 S.W.3d 744 (Tex.Crim.App. 2006) 10
Cordova v. State, 698 S.W.2d 107 (Tex.Crim.App.1985) 17
Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007) 10, 19
Gamez v. State, 737 S.W.2d 315 (Tex.Crim.App. 1987) 10, 15
Garcia v. State, 57 S.W.3d 436 (Tex. Crim.App.2001), cert. denied, 537 U.S. 1195, 123
S.Ct. 1351, 154 L.Ed.2d 1030 (2003) 14
Laster v. State, 275 S.W. 3D 512 (Tex. Crim. App. 2009) 16
Martinez v. State, 763 S.W.2d 413 (Tex. Crim. App. 1988) 18
Maynard v. State, 166 S.W.3d 403 (Tex.App.-Austin 2005, pet. ref’d) 19
Paredes v. State, 129 S.W.3d 530 (Tex. Crim. App. 2004) 10
Ransom v. State, 920 S.W.2d 288 (Tex.Crim.App.1994) 17
4
Rylander v. State, 101 S.W.3d 107 (Tex.Crim.App.2003) 14
Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991) 10,11
Smith v. State, 332 S.W.3d 425 (Tex. Crim. App. 2011) 9,10
Solomon v. State, 49 S.W.3d 356 (Tex.Crim.App.2001) 19
Stephens v. State, 717 S.W.2d 338 (Tex.Crim.App.1986) 16
Thompson v. State, 9 S.W.3d 808 (Tex. Crim.App.1999) 14
Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005) 16
Walker v. State, 615 S.W.2d 728 (Tex.Crim.App.1981) 19
Washington v. State, 127 S.W.3d 197 (Tex. App. Houston [1st Dist. ] 2003,
pet. Dism'd) 16
Wincott v. State, 59 S.W.3d 691 (Tex.App.-Austin 2001, pet. ref’d) 19
Wooden v. State, 101 S.W.3d 542 (Tex.App.-Fort Worth 2003, pet. ref’d) 16,18
Statute and Rules
Tex. Code Crim. Pro. Article 38.14 9,19
Tex. Penal Code. Sec. 7.02 16,17
Tex. Penal Code. Sec. 15.02 17
5
STATEMENT OF THE CASE
This is an appeal of judgment and sentence in a criminal case from the 196th
Judicial District Court in Hunt County, Texas. Appellant was convicted by a jury of
Aggravated Robbery with a Deadly Weapon on August 11, 2015. On August 12, 2015,
the jury assessed Appellant's punishment at 50 years in the Texas Department of Criminal
Justice, Institutional Division.
ISSUES PRESENTED
Point of Error No. 1:
The Trial Court erred in failing to submit an accomplice witness charge in the jury
instructions under Texas Code of Criminal Procedure Article 38.14.
Point of Error No. 2:
Appellant received ineffective assistance of trial counsel due to trial counsel’s
failure to request an accomplice witness instruction in the jury charge.
Point of Error No. 3:
The evidence is legally insufficient to prove Appellant guilty of Aggravated
Robbery with a Deadly Weapon.
STATEMENT OF FACTS
On June 15, 2015, Spencer Sweeden was playing video games and drinking beer
with a friend until the wee hours of the morning. (R.R. 3, p. 29). Mr. Sweeden was
carrying a CO2 pistol with him as he began to walk home. (R.R. 3, 29, 31). As Mr.
Sweeden walked down the street, he noticed a man on a bicycle pass him and go into a
6
white house. (R.R. 3, p. 32). Mr. Sweeden was able to identify the race of the man on the
bicycle as African-American. (R.R. 3, p. 32). As Mr. Sweeden continued to walk, the
man on the bicycle and another African-American man wearing basketball shorts came
out of the white house. (R.R. 3, p. 32). The two men began talking to Mr. Sweeden.
(R.R. 3, p. 33). Mr. Sweeden testified he became nervous and told the two men that he
was “strapping.” (R.R. 3, p. 33). According to Mr. Sweeden, the two men rushed up to
him, one going in front of him and one behind. (R.R. 3, p. 34). Mr. Sweeden testified the
man who had been on the bicycle was behind him, grabbed him by the head, forced him
to the ground and began to beat him. (R.R. 3, p. 34). Mr. Sweeden further testified the
other man stood in front of him brandishing a weapon that appeared to be a sawed-off
shotgun. (R.R. 3, p. 34-35). Mr. Sweeden testified the man who had been on the bicycle
asked him what he had on him and took his wallet, his keys, his hat and his CO2 pistol.
(R.R. 3, p. 35).
Later that morning, Mr. Sweeden described the individuals to the Commerce
Police Department. (R.R. 3, p. 38). Mr. Sweeden described the man on the bicycle as a
black male wearing a vest with many pockets. (R.R. 3, p. 38). Mr. Sweeden described
the other individual as wearing basketball shorts, a t-shirt, and having his hair done in
cornrows. (R.R. 3, p. 39).
A few days after the incident, Mr. Sweeden participated in a photo lineup at the
Commerce Police Department. (R.R. 3, p. 40). Mr. Sweeden testified he was able to
identify the two individuals involved in the incident in the photo lineup. (R.R. 3, p. 41).
In open court, Mr. Sweeden identified Appellant as one of the men involved in the
7
incident. (R.R. 3, p. 41). However, Appellant did not specify whether Appellant was the
man on the bicycle or the man with the gun.
The State called Eddie James Dean, Jr. to testify as an accomplice witness. (R.R.
3, p. 49). Mr. Dean testified that he committed the aggravated robbery of Spencer
Sweeden with Evender Jackson on June 15, 2015. (R.R. 3 p. 50-51). Mr. Dean testified
that he held the gun during the robbery and that Appellant is the one who struck Mr.
Sweeden and took his things. (R.R. 3, p. 51). According to Mr. Dean, he and Appellant
had not made any plan to commit the aggravated robbery of Mr. Sweeden, or of anyone
else. (R. R. 3, p. 52-53). Mr. Dean never informed Appellant that he had a gun nor did
Mr. Dean tell Appellant he was going to get and use a gun. (R.R. 3, p. 62). Mr. Dean
testified that he did not get his shotgun until Mr. Sweeden said he was armed. (R.R. 3, p.
54). Mr. Dean testified that when Appellant first arrived at the garage where Mr. Dean
was, Mr. Dean did not have his shotgun. (R.R. 3, p. 54). Mr. Dean testified that
Appellant approached Mr. Sweeden first and was talking to him and that Mr. Dean
retrieved his shotgun from his garage after Mr. Sweeden announced he had a was armed.
(R.R. 3, p. 55). There is no evidence in the record that Appellant every aided, solicited,
or in any way encouraged Mr. Dean to use or exhibit his gun.
Eddie James Dean, Jr. was a convicted felon at the time he testified against
Appellant. (R.R. 3, p. 58).
Officer Tyler Oakley with the Commerce Police Department testified he received
a description of two suspects from Spencer Sweeden. (R.R. 3, p. 74). Tyler Oakley,
David Wallace and Marcus Cantera all testified that they came upon Appellant outside
8
the house on Washington Street, standing beside a vehicle. (R.R. 3, p. 76, 93, 110). The
officers testified that they saw items on the hood of the vehicle, including the California
ID of Spencer Sweeden. (R.R. 3, p. 76, 93, 110). None of the witnesses testified they saw
Appellant in possession of the items, nor was any evidence presented that Appellant
placed the items on the hood of the vehicle. None of the State’s three law enforcement
officers saw Appellant wearing the vest with many pockets described by Mr. Sweeden.
None of the State’s law enforcement witnesses saw Appellant on the bicycle described by
Mr. Sweeden. Marcus Cantera testified that as he approached the scene of the crime, saw
the “silhouette of an individual, which appeared to be on a bicycle. (R.R. 3, p. 109). Sgt.
Cantera further testified that he turned a corner and then saw a black male standing
beside a vehicle with a bicycle on the ground next to him. (R.R. 3, 110). Sgt. Cantera said
it was his belief this was the same person he had seen on the bicycle. (R.R. 3, p. 10).
POINT OF ERROR NUMBER ONE
The Trial Court erred in failing to submit a jury instruction under Texas Code of Criminal
Procedure Article 38.14.
The Law
Under Texas Code of Criminal Procedure Article 38.14, a conviction cannot stand
on an accomplice witness’s testimony unless the testimony is corroborated by other, non-
accomplice evidence that tends to connect the accused to the offense.
The Legislature has held that the factfinder in any criminal case should exercise
caution when considering the testimony of an accomplice. Smith v. State, 332 S.W.3d 425,
9
439 (Tex. Crim. App. 2011) Accomplice testimony is particularly suspect as “accomplices
often have incentives to lie, such as to avoid punishment or shift blame to another person.”
Id. An accomplice is a person who participates in the offense before, during, or after its
commission with the requisite mental state. Druery v. State, 225 S.W.3d 491, 498 (Tex.
Crim. App. 2007) citing Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).
A State’s witness may be an accomplice as a matter of law or as a matter of fact.
Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App. 2006). A witness who is indicted
for the same offense or a lesser-included offense as the accused is an accomplice as a
matter of law. Id at 748. When the evidence clearly shows that a witness is an
accomplice as a matter of law, the trial judge must instruct the jury accordingly. Gamez v.
State, 737 S.W.2d 315, 322 (Tex.Crim.App. 1987). Failure to provide such a charge is
error. Id. When the jury is not informed of this requirement it makes it possible for
rational jurors to convict even absent corroboration which they find convincing. Id.
Harm Analysis
Omission of an unrequested jury instruction applicable to the case calls for a new
trial only when the defendant was greatly disadvantaged thereby. Saunders v. State, 817
S.W.2d 688, 692 (Tex. Crim. App. 1991). This degree of harm, sufficiently serious to be
called “egregious,” is present whenever a reviewing court finds that the case for conviction
or punishment was actually made clearly and significantly more persuasive by the error .
Id.
Appellate Courts have found the error was egregiously harmful because “rational jurors
10
would have found the State’s case for conviction clearly and significantly less persuasive
had they been properly instructed Id. at 693.
Argument
Eddie James Dean, Jr. was one of the State’s principal witness against Appellant at
his trial. At the time Mr. Dean testified against Appellant, he himself had been indicted for
the same offense for which Appellant was standing trial. (R.R. 3, p. 11-12). The
indictment filed in Appellant’s case alleged that Appellant, “individually and acting
together with Eddie James Dean, Jr.” committed the offense for which Appellant was tried.
Mr. Dean was unquestionably therefore an accomplice as a matter of law, and it was error
for the trial court to fail to submit an accomplice-witness instruction to the jury.
Although Appellant did not object at trial, Appellant is nonetheless entitled to a
reversal as the record demonstrates that the error resulted in egregious harm. The State’s
most incriminating evidence against Appellant was the testimony of the accomplice, Eddie
Dean. Our law requires that such testimony be corroborated by evidence connecting
Appellant with the offense before conviction is warranted. Failure to inform the jury of this
requirement makes it possible for rational jurors to convict even absent corroboration
which they find convincing.
In the instant cause, the State's only evidence defining Appellant’s role in the
charged offense came from the accomplice, Eddie Dean. While Spencer Sweeden, the
victim named in the State’s indictment, was able to identify Appellant’s face as someone
he recognized, he was never able to identify which of the two person’s Appellant was; i.e.
11
the man on the bicycle or the man in the basketball shorts. Mr. Sweeden’s identification
was so weak that, without the accomplice testimony, the jury would have no idea whether
Appellant was alleged to be the man who held the gun or the man who hit Mr. Sweeden.
Therefore, Mr. Dean’s testimony as to Appellant being the individual who struck Mr.
Sweeden during the encounter is totally uncorroborated.
None of the State’s other witnesses were able to testify that Appellant had any
involvement in the offense. The only evidence provided by the State’s law enformcment
witnesses merely places Appellant in the vicinity of the crime. The State put forward
three law enforcement officers who testified seeing Appellant near the scene of the
robbery. None of the witnesses identified Appellant as being either the man in the
basketball shorts nor the man who was riding the bicycle and wearing the vest with many
pockets. Rather, Appellant, an African-American man, was found in a predominately
black neighborhood (R.R. 3, p. 33), near the items that were deemed to be evidence in the
crime being investigated. None of the State’s witnesses saw Appellant to be wearing the
much talked of vest nor to be in possession of any of the items taken from Mr. Sweeden.
None of the law enforcement officers were able to identify Appellant as riding the bicycle
described by Mr. Sweeden. Sgt. Cantera did say he saw a “silhouette” of an individual,
and after he turned a corner he saw a man, later identified as Appellant, standing beside a
bicycle and a vehicle. Sgt. Cantera then testified he believed the silhouette he saw to be
the same man standing beside the vehicle, however he does not articulate any reasonable
facts for his assumption.
Our law requires that accomplice testimony must be corroborated before
12
conviction is warranted. Failure to inform the jury of this requirement makes it possible
for rational jurors to convict even absent corroboration which they find convincing. The
court failed to provide sufficient guidance to allow the jury to reliably ascertain the
witnesses’ status and to properly weigh the evidence. Other than the accomplice
testimony, there is no evidence in the record to prove that Appellant had any involvement
in the charged robbery other than being in the vicinity where a crime occurred.
It is clear that the trial court had a duty to charge the jury regarding accomplice
testimony and it is equally clear the courted failed to do so. The trial court’s error
effectively denied Appellant a fair trial as all evidence connecting defendant to the
offense, other than accomplice testimony, was exceedingly weak.
For those reasons, the trial court’s error in failing to charge the jury regarding
accomplice testimony caused Appellant egregious harm and Appellant’s conviction
should be reversed.
POINT OF ERROR NUMBER TWO
Appellant received ineffective assistance of trial counsel due to trial counsel’s
failure to request an accomplice witness instruction in the jury charge.
The Law
Ineffective assistance of counsel claims are evaluated under the two-part test
formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984) requiring a showing of both deficient performance and
prejudice. To show that trial counsel was ineffective, appellant must demonstrate that: 1)
13
trial counsel’s performance was deficient because it fell below an objective standard of
reasonableness; and 2) a probability sufficient to undermine confidence in the outcome
existed that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. Id. Judicial scrutiny of counsel’s performance must be highly
deferential and that a reviewing court "must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance. Id. Thus "the
defendant must overcome the presumption that, under the circumstances, the challenged
action `might be considered sound trial strategy.'" Id., quoting Michel v. Louisiana, 350
U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). Failure of appellant to make either of
the required showings of deficient performance and sufficient prejudice defeats the claim
of ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.App.1999)
.A Strickland claim must be "firmly founded in the record" and "the record must
affirmatively demonstrate" the meritorious nature of the claim. Id. at 812. Trial counsel’s
conduct is reviewed with great deference, without the distorting effects of hindsight,
where counsel’s reasons for failing to do something do not appear in the record. Id. at
813. We have said that "trial counsel should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d
107, 111 (Tex.Crim.App.2003). Absent such an opportunity, an appellate court should
not find deficient performance unless the challenged conduct was "so outrageous that no
competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex.
Crim.App.2001), cert. denied, 537 U.S. 1195, 123 S.Ct. 1351, 154 L.Ed.2d 1030 (2003).
Argument
14
It is clear that Appellant was entitled to a jury charge regarding accomplice
testimony, as Eddie James Dean, Jr. was an accomplice as a matter of law. (see Point of
Error Number One). The record is equally clear that trial counsel failed to request such a
charge. The accomplice witness charge is of such importance to the fair trial of an
accused that it is error not to provide such a charge where one is warranted. Gamez at
322.
While great deference should be given to the trial strategy by trial counsel, there is
no sound trial strategy that can explain counsel’s failure to request this important
instruction to the jury. The instruction would have properly advised the jury of their
responsibility to find Appellant not guilty, unless the accomplice testimony was
corroborated by other evidence. As outlined in point of error number one, the
corroborating evidence in this case was either wholly lacking, or so weak as to provide no
credible corroboration.
Had the jury been properly charged, there is a significant probability that the
outcome would have been different in this case. Trial counsel’s unprofessional error is of
such significance as to undermine the confidence in the verdict. But for counsel’s failure
to request the accomplice witness charge, the result of the proceedings would have been
different.
POINT OF ERROR NUMBER THREE
The evidence is legally insufficient to find Appellant guilty of Aggravated
Robbery with a Deadly Weapon.
The Law
15
In a criminal case, an appellant may raise legal sufficiency for the first time on
appeal. Washington v. State, 127 S.W.3d 197 (Tex. App. Houston [1st Dist. ] 2003, pet.
Dism'd). When reviewing legal sufficiency of the evidence, a court must look at all of
the evidence in the light most favorable to the verdict to determine whether any rational
trier of fact could have found the essential elements of the offense were proven beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State,
158 S.W.3d 502 (Tex. Crim. App. 2005). While giving the proper deference to the
factfinder's role, this court must safe guard against the rare occurrence when a factfinder
does not act rationally. Laster v. State, 275 S.W. 3D 512 (Tex. Crim. App. 2009).
Law of Parties
Under the law of parties, a person may be convicted as a party to an offense if the
offense is committed by his own conduct or by the conduct of another for which he is
criminally responsible. TEX. PEN. CODE § 7.02. The penal code provides two ways by
which a person may be criminally responsible for another’s conduct: (1) by being a “party”
to the offense under section 7.02(a); or (2) by being part of a conspiracy to commit a felony
under section 7.02(b). See id. § 7.02(a), (b).
Texas Penal Code Section 7.02(a)(2) provides that a person is criminally responsible
for an offense committed by the conduct of another if, acting with intent to promote or
assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to
aid the other person to commit the offense. Id. § 7.02(a)(2). To convict a defendant as a
party to an aggravated offense, the State must prove that the defendant was criminally
responsible for the aggravating element. Wooden v. State, 101 S.W.3d 542, 547–48
16
(Tex.App.-Fort Worth 2003, pet. ref’d) (citing Stephens v. State, 717 S.W.2d 338, 340
(Tex.Crim.App.1986)). The defendant must have, with intent to promote or assist the
aggravated assault, solicited, encouraged, directed, aided, or attempted to aid the other
person in committing the aggravated assault. Id.
When a legal sufficiency complaint is raised, as an offender convicted as a party,
the evidence will be held sufficient to convict under the law of parties where the defendant
is physically present at the commission of the offense and encourages its commission by
words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994);
Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985). For a conviction to be
upheld, the evidence must show that at the time of the offense, the parties were acting
together, each contributing some part towards the execution of their common purpose.
Brooks v. State, 580 S.W.2d 825, 831 (Tex.Crim.App. [Panel Op.] 1979); Armstead v.
State, 977 S.W.2d 791, 797 (Tex.App.-Fort Worth 1998, pet. ref’d).
The second way that a person can be criminally responsible for another’s conduct
is found in section 7.02(b), which provides that if, in the attempt to carry out a conspiracy
to commit one felony, another felony is committed by one of the conspirators, all
conspirators are guilty of the felony actually committed, though having no intent to commit
it, if the offense was committed in furtherance of the unlawful purpose and was one that
should have been anticipated as a result of the carrying out of the conspiracy. TEX
PEN.CODE ANN § 7.02(b). The term “conspiracy” is defined as an agreement between
two or more persons, with intent that a felony be committed, that they, or one or more of
them, engage in conduct that would constitute the offense. Id. § 15.02(a).
17
A person’s criminal responsibility for another’s conduct does not extend further than that
which he specifically intended to promote in aiding. Martinez v. State, 763 S.W.2d 413,
425 (Tex. Crim. App. 1988) (evidence of appellant’s plan and aid to commit robbery was
legally insufficient to show his encouragement and intent to commit capital murder); see
also Wooden, 101 S.W.3d at 547–49 (evidence of appellant’s intent to promote or assist
attempted theft as lookout was not legally sufficient to support conviction for subsequent
aggravated assault.)
Argument
The evidence is insufficient to sustain Appellant’s Aggravated Robbery with a
Deadly Weapon conviction as Appellant did not use or exhibit a deadly weapon, nor did
he encourage, promote or assist in the use of a deadly weapon. The record is devoid of
any evidence to show Appellant had any knowledge that a deadly weapon was present
during the encounter. In fact, the only evidence presented is that Appellant did not have
any prior knowledge that Eddie Dean had a gun or that Mr. Dean would use said gun
during Appellant’s encounter with Mr. Sweeden.
The State presented Eddie Dean as an accomplice witness against Appellant and
Spencer Sweeden as the victim of the charged offense. Neither witness provided any
evidence that Appellant solicited, encouraged, directed, aided or attempted to aid Eddie
Dean in the use of a deadly weapon during the encounter with Spencer Sweeden. The
State’s own accomplice witness denied there was any plan to commit a robbery.
Appellant never asked Mr. Dean to use a gun, nor did he have any knowledge Mr. Dean
would retrieve a gun from his garage. Therefore, Appellant is not criminally responsible
18
for the actions of Mr. Dean and the evidence is insufficient to find that Appellant used or
exhibited a deadly weapon.
Viewing the evidence in the light most favorable to the verdict fails to establish
there was a plan or agreement to commit robbery with Eddie Dean, nor to use or exhibit
a deadly weapon. There is no evidence on which the jury could inferred that Appellant
intended to promote or assist in the use of a deadly weapon.
Uncorroborated Accomplice Witness Witness
In Texas, a conviction cannot be had upon the testimony of an accomplice unless
that testimony is corroborated by other evidence tending to connect the defendant with the
offense. Tex.Code Crim. Proc. Ann. art. 38.14 (West 2005). The testimony of an
accomplice witness is inherently untrustworthy and should be received and acted on with
caution because it is “evidence from a corrupt source.”3 Walker v. State, 615 S.W.2d 728,
731 (Tex.Crim.App.1981); Wincott v. State, 59 S.W.3d 691, 698 (Tex.App.-Austin 2001,
pet. ref’d). This accomplice-witness rule creates a statutorily imposed review and is not
derived from federal or state constitutional principles that define the factual and legal
sufficiency standards. Druery at 498 . Thus, to weigh the sufficiency of the corroborative
evidence, a court must disregard the accomplice’s testimony and examine the remaining
portions of the record to ascertain whether there is evidence tending to connect the accused
with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361
(Tex.Crim.App.2001); Maynard v. State, 166 S.W.3d 403, 410 (Tex.App.-Austin 2005,
pet. ref’d). If the combined weight of the non-accomplice evidence tends to connect the
defendant to the offense, then the requirement of article 38.14 has been fulfilled. Cathey v.
19
State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999). However, evidence that merely proves
that the offense was committed does not suffice. Id.
Argument
The key witness in the State’s case defining Appellant’s role in the charged
offense was accomplice witness, Eddie Dean. As argued above, while Spencer Sweeden,
the victim named in the State’s indictment, was able to identify Appellant’s face as
someone he recognized, he was never able to identify which one, of the two persons he
described as being involved in the offence, was Appellant. Mr. Sweeden’s identification
was so weak that, without the accomplice testimony, the jury would have no idea whether
Appellant was alleged to be the man who held the gun or the man who hit Mr. Sweeden.
Mr. Sweeden never testified that Appellant hit him. Mr. Dean’s accomplice testimony as
to Appellant being the individual who struck Mr. Sweeden during the encounter is totally
uncorroborated.
The only other evidence provided by witnesses other than the accomplice and Mr.
Sweeden merely places Appellant in the vicinity of the crime, near items that were
determined to be evidence. None of the State’s law enforcement witnesses observed
Appellant take part in any elements of the offense, neither did said witnesses observe
Appellant in possession of the items taken from Mr. Sweeden. Mr. Sweeden did not
testify that Appellant was the person who took the items from him. Appellant was not
tied to the items taken from Mr. Sweeden by fingerprints or any other type of forensic
analysis. Again, the sole link at trial to Appellant being the individual who took items
from Mr. Sweeden was the uncorroborated testimony of accomplice Dean.
20
The suspect and unreliable testimony of a convicted felon, himself under
indictment for Aggravated Robbery with a Deadly weapon, is an insufficient basis upon
which to predicate a felony conviction. Therefore, Appellant’s conviction is not
supported by the facts presented at trial and should therefore be reserved.
PRAYER FOR RELIEF
For the reasons stated hereinabove, it is respectfully submitted that, upon appellate
review, the Court of Appeals should reverse the judgment of conviction and sentence of
the Trial Court.
Respectfully submitted,
/s/ Jessica Edwards
JESSICA EDWARDS
Attorney for Appellant
Evender Gene Jackson, Jr.
State Bar Number - 24000994
P.O. Box 9318
Greenville, Texas 75404
Telephone Number - (903) 458-9108
Facsimile Number - (903) 200-1359
jessicaedwardslaw@gmail.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant's Brief was served on the Hunt
County District Attorney's Office through the efiletexas website on December 1, 2015.
21
/s/ Jessica Edwards
Jessica Edwards
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant's Brief was delivered to
Appellant via certified mail to the Telford Unit; TDCJ-ID on December 2, 2015
/s/ Jessica Edwards
Jessica Edwards
CERTIFICATE OF COMPLIANCE
I certify that Appellant's Brief is written in Times New Roman font in 13 point
text. Appellant's brief has 4929 words according to the word count feature on the
undersigned attorneys word processing program.
/s/ Jessica Edwards
Jessica Edwards
22