ACCEPTED
01-15-00095-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
10/23/2015 1:17:41 PM
CHRISTOPHER PRINE
CLERK
NO. 01-15-00095-CR
01-15-00094-CR
FILED IN
IN THE COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
FOR THE FIRST DISTRICT OF TEXAS 10/23/2015 1:17:41 PM
CHRISTOPHER A. PRINE
Clerk
DIONYSIOS SPIRO KOSMETATOS
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from Cause Number 1449194 & 1414418
From the 338th District Court of Harris County, Texas
BRIEF FOR THE APPELLANT
TONYA ROLLAND MCLAUGHLIN
TBN 24054176
4301 Yoakum Boulevard
Houston, Texas 77006
Phone: (713) 529-8500
Fax: (713) 456-2203
Counsel for Appellant
ORAL ARGUMENT RESPECTFULLY REQUESTED
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Dionysios Spiro Kosmetatos
TDC# 1976828
French M. Robertson Unit
12071 FM 3522
Abilene, Texas 79601
TRIAL PROSECUTORS: David Bernard
Beth Exley
Assistant District Attorneys
Harris County, Texas
1201 Franklin Avenue
Houston, Texas 77002
DEFENSE COUNSEL AT HEARING: Randall Ayers
P.O. Box 1569
Houston, Texas 77251
COUNSEL ON APPEAL FOR APPELLANT: Tonya Rolland McLaughlin
4301 Yoakum Boulevard
Houston, Texas 77006
PRESIDING JUDGE: Hon. Brock Thomas
338th District Court
Harris County, Texas
1201 Franklin Avenue
Houston, Texas 77002
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .................................................................... 2
TABLE OF CONTENTS ....................................................................................................... 3
INDEX OF AUTHORITIES ................................................................................................ 4
STATEMENT OF THE CASE ............................................................................................. 5
STATEMENT REGARDING ORAL ARGUMENT ...................................................... 6
ISSUE PRESENTED .............................................................................................................. 7
STATEMENT OF FACTS ..................................................................................................... 7
SUMMARY OF THE ARGUMENT ................................................................................... 9
ARGUMENT ..........................................................................................................................10
ISSUE ONE: THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
INSTRUCTED VERDICT BECAUSE THE EVIDENCE IS INSUFFICIENT TO ESTABLISH
APPELLANT KNEW THE OFFICERS WERE PUBLIC SERVANTS.
ISSUE TWO: THE EVIDENCE IS INSUFFICIENT FOR A RATIONAL JURY TO FIND
BEYOND A REASONABLE DOUBT APPELLANT KNEW THE OFFICERS WERE PUBLIC
SERVANTS.
STANDARD OF REVIEW. ........................................................................................... 10
ANALYSIS: SUFFICIENCY OF THE EVIDENCE. ...................................................... 11
PRAYER...................................................................................................................................14
CERTIFICATE OF SERVICE ............................................................................................14
CERTIFICATE OF COMPLIANCE .................................................................................14
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INDEX OF AUTHORITIES
Cases
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).. ............................................... 10
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). .......................................... 10, 11
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).. .................................................. 10
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979);.. ........... 10, 11
McDaniel v. State, No. 01-11-00107-CR, 2012 Tex. App. LEXIS 406, 2012 WL 151465 (Tex.
App. – Houston [1st Dist.] January 19, 2012, pet. ref’d) (mem. Op. not designated for
publication). ... ..................................................................................................................... 12
Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). .............................................. 11
Constitutional Provisions, Statutes and Rules
Tex. Penal Code Ann. § 22.01(a)(2). ........................................................................................ 11
Tex. Penal Code Ann. § 22.02(a)(2) and 22.02(b)(2)(B). ....................................................... 11
Tex. Penal Code Ann. § 22.02(b)(2)(B). ................................................................................. 11
Tex. Penal Code Ann. § 22.02(c).............................................................................................. 11
Tex. R. App. Proc. § 38.1(e) ........................................................................................................6
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STATEMENT OF THE CASE
Appellant was charged in cause numbers 1414418, 1449194, and 1414419 with
two counts of Aggravated Assault - Public Servant and one count of Aggravated
Assault - Family Member, each alleged to have occurred on or about January 13, 2014.
(1 CR at 7; 2 CR at 5).1 The State filed a motion to consolidate the three cases into
one trial on November 24, 2014, which was granted. (2 CR at 6).
On January 14, 2015, a jury found Appellant guilty in cause numbers 1414418
and 1449194 of both counts of Aggravated Assault – Public Servant. The jury found
Appellant not guilty in cause number 1414419 of Aggravated Assault – Family
Member. On January 14, 2015, the jury sentenced the Appellant to forty (40) years in
the Institutional Division of the Texas Department of Corrections. Appellant filed a
timely notice of appeal. (1 CR at 96; 2 CR at 38).
The two convictions are combined in a single brief for purposes of appeal.
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STATEMENT REGARDING ORAL ARGUMENT
Oral argument should be permitted because this appeal is not frivolous and the
facts and legal arguments are adequately presented. TEX. R. APP. PROC. 38.1(e).
Appellant requests oral argument because the Court of Appeal’s decision, whether the
evidence is sufficient to support the convictions, would be significantly aided by oral
argument.
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ISSUES PRESENTED
ISSUE ONE: THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR INSTRUCTED VERDICT BECAUSE THE EVIDENCE IS INSUFFICIENT TO
ESTABLISH APPELLANT KNEW THE OFFICERS WERE PUBLIC SERVANTS.
ISSUE TWO: THE EVIDENCE IS INSUFFICIENT FOR A RATIONAL JURY TO
FIND BEYOND A REASONABLE DOUBT APPELLANT KNEW THE OFFICERS
WERE PUBLIC SERVANTS.
STATEMENT OF FACTS
On January 13, 2014, Appellant, Dionysios Kosmetatos, was at his mother in
law’s apartment with his children and wife. (3 RR at 25). Appellant and his wife,
Rebecca Kosmetatos, began arguing inside of the apartment. (3 RR at 26). Rebecca
and her mother, Patricia Dow, left the Appellant and children inside of the apartment
and went to the apartment of downstairs neighbor, Urica Blackwell. Urica called 911.
(4 RR at 74).
Officer Patrick Woods and Officer Serguei Gromyko responded to the
disturbance call a little after midnight. (4 RR at 161). They did not use their sirens or
their lights. (4 RR at 118). Officer Woods testified at this point they only knew that
the Appellant was alleged to have locked his wife out of the apartment and Officer
Gromyko was behind him. (4 RR at 125). Officer Gromyko testified he thinks he saw
Appellant on the balcony looking at them when they first arrived; however, defense
counsel pointed out this was nowhere in the offense report supplements or their
sworn statements. (4 RR at 190, 192; 5 RR at 24). Officer Woods stated there had
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been no report of weapons and he did not feel threatened walking up the stairs. (4 RR
at 154).
CSU Officer Arthur Lyons wrote in his report the stairwell was dark with very
limited illumination and on the landing in front of Patricia’s apartment the light
fixture was out. (4 RR at 46-50). The available light was coming from the balcony
below. (4 RR at 51). Officer Woods testified they did not knock or announce police.
(4 RR at 128, 147). He said they were talking to Patricia when Appellant flung the
door open. (4 RR at 128). Urica’s testimony conflicts with the Officer’s because she
allegedly saw the Officers arrive and knock on the door. (4 RR at 79). Officer Woods
said Appellant screamed and rushed him. (4 RR at 130).
Patricia Dow first testified on direct for the State that she saw Appellant come
out of her apartment with a knife in his hand and heard him threaten the Officers. (3
RR at 45-46). But on cross testified she did not see any altercation between Appellant
and the Officers and never saw Appellant with the knife. (4 RR at 26, 29). Urica said
she saw him come out screaming with a knife above his head and tried to stab the
Officers. Her testimony again conflicts with the Officers because she allegedly saw
them telling Appellant to put the knife down and then she heard gunshots. (4 RR at
81-83). Officer Woods testified he did not tell Appellant to drop the knife. (4 RR at
132). Urica also claims to have called 911 a second time because the Officers needed
help, but there is no recording or proof of the second call. (4 RR at 108-109).
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Officer Woods and Officer Gromyko concur it was mere seconds from the
time the door flung open to the firing of his gun. (4 RR at 149, 154, 183). Officer
Gromyko testified there was no time to reflect. (4 RR at 184). Officer Woods fired his
gun shooting Appellant twice. (4 RR at 135, 174). He had never shot anyone before.
Appellant fell down the stairs. (4 RR at 138, 174). Neither Officer sustained any
injuries. (4 RR at 158, 187).
At trial, defense counsel moved for an instructed verdict once the State rested
arguing there was insufficient evidence to prove the assault on Appellant’s wife or to
support Appellant’s knowledge that Officer Woods and Officer Gromyko were peace
officers at the time of the offense. (5 RR at 31). In the States rebuttal, they misstate
the testimony of the Officers and incorrectly argue to the trial court “with respect to
the aggravated assault on the peace officer cases, both police officers and the scene
investigator, Officer Lyons, and Sergeant Holbrook testified that the lighting was
adequate on the top floor to see a police uniform.” (5 RR at 34). The trial court
denied the defense’s motion. (5 RR at 34).
SUMMARY OF THE ARGUMENT
Appellant complains there is insufficient evidence to support his convictions
for Aggravated Assault on a Public Servant. He did not know the Officers were Public
Servants at the time of the offense.
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ARGUMENT
ISSUE ONE: THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
FOR INSTRUCTED VERDICT BECAUSE THE EVIDENCE IS INSUFFICIENT TO
ESTABLISH APPELLANT KNEW THE OFFICERS WERE PUBLIC SERVANTS.
ISSUE TWO: THE EVIDENCE IS INSUFFICENT FOR A RATIONAL JURY TO FIND
BEYOND A REASONABLE DOUBT APPELLANT KNEW THE OFFICERS WERE
PUBLIC SERVANTS.
S TAN DARD OF R EV IEW
Challenging the trial court’s ruling on directed verdict is a challenge to the legal
sufficiency of the evidence to support the conviction. Williams v. State, 937 S.W.2d
479, 482 (Tex. Crim. App. 1996). Appellate courts review both legal and factual
sufficiency challenges using the same standard of review. Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010). When reviewing sufficiency of the evidence,
appellate courts examine all 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 v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The factfinder
is the exclusive judge of the credibility of witnesses and the weight of the evidence.
Isassi, 330 S.W.3d at 638; Brooks v. State, 323 S.W. 3d 893, 899 (Tex. Crim. App. 2010).
It is 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. Jackson,
443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When
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the record supports conflicting inferences, the reviewing court presumes that the
factfinder resolved the conflicts in favor of the prosecution and defer to that
determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
A NALYSIS : S UFFICIEN CY OF THE E V IDEN CE
Due process requires the State to prove beyond a reasonable doubt every
element of the crime charged. Jackson, 443 U.S. at 313. A person commits an assault if
he intentionally or knowingly threatens another with imminent bodily injury. Tex.
Penal Code Ann. § 22.01(a)(2). The offense is elevated to an aggravated assault if the
person uses or exhibits a deadly weapon during the commission of the assault and is
punishable as a first-degree felony if the offense is committed against a person the
actor knows is a public servant while the public servant is lawfully discharging an
official duty. Tex. Penal Code Ann. § 22.02(a)(2) and 22.02(b)(2)(B). The State in this
case was required to prove beyond a reasonable doubt Appellant knew Officer
Gromyko and Officer Woods were public servants at the time of the offense. The
statute creates a presumption that an accused knew that the person assaulted was a
public servant if the person was wearing a distinctive uniform or badge indicating the
person's employment as a public servant. Tex. Penal Code Ann. § 22.02(c). However,
viewing all of the evidence in Appellant’s case in the light most favorable to the
prosecution a rational trier of fact could not have found this element beyond a
reasonable doubt.
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In McDaniel v. State, this court found the evidence was legally sufficient to
support the defendant’s conviction where his argument implied that he did not know
he was pointing a gun at police officers. McDaniel v. State, No. 01-11-00107-CR, 2012
Tex. App. LEXIS 406, 2012 WL 151465 (Tex. App. – Houston [1st Dist.] January 19,
2012, pet. ref’d) (mem. Op. not designated for publication). The Houston Police
Department was called to a weapons disturbance at an apartment. (Id. at 1). Three
Officers arrived in uniform to speak to the reportee that stated his roommate had
locked him out of the apartment after threatening him with a gun. (Id.). It was
approximately midnight, but all three officers testified there was enough light outside
the apartment for the defendant to see their uniforms. (Id. at 2) They knocked
forcefully on the door, and loudly announced Houston Police Department three times
with a total of 9 knocks when the defendant opened door with a gun in hand. (Id.).
Officers told him to drop the weapon and when the defendant pointed it at them they
tackled the defendant and subdued with force. (Id.).
Although a similar scenario, our case differs. Houston Police Department was
likewise dispatched to an apartment where Appellant’s wife was claiming to have been
locked out, but there was no mention of weapons. (4 RR at 125, 154). Officer Woods
testified he never knocked on the door or announced police. (4 RR at 128, 147).
Officer Lyons testified it was dimly lit and missing a light. (4 RR at 46). Additionally,
in this case Officers subdued Appellant with force by shooting him multiple times and
acknowledged everything happened very quickly with little time to reflect. (4 RR at
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149-154, 184). The Officers did not sustain any injuries. (4 RR at 187). This case does
not have the necessary, reasonable inferences the Court relied on in McDaniel to find
the defendant knew the Officers were public servants. (Id.). Appellant did not know
Police Officers were outside the apartment door.
The trial court erred in denying the defense’s motion for instructed verdict.
This is likely due to the State’s misstatement of Officer testimony. The State argued
against the instructed verdict for this case on the grounds that all of the Officers
testified the lighting was adequate on the top floor to see a police uniform. (5 RR at
34). When in fact, that is nowhere in the record. The only mention of lighting is from
Officer Lyons testifying the stairwell was dark with very limited illumination and the
light in front of the apartment was out. (4 RR at 46-50). The lack of lighting alone in
this case overcomes the presumption that Appellant from inside of his apartment saw
the officers outside in uniforms with badges.
The combined evidence reveals there was a lack of light, Officer Woods and
Officer Gromyko did not arrive with lights and sirens, they never knocked or
announced their presence, and within seconds Appellant was shot multiple times. A
jury could not have rationally inferred with those facts that Appellant knew beyond a
reasonable doubt that there were men outside of the apartment door that evening or
that they were Police Officers. It was simply too dark and too quick.
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PRAYER
Appellant prays this Court to reverse the conviction and remand the case to the
trial court for entry of an order of acquittal.
Respectfully submitted,
_s/Tonya Rolland McLaughlin
Tonya Rolland McLaughlin
4301 Yoakum Boulevard
Houston Texas 77006
Phone: (713) 529-8500
Fax: (713) 453-2203
TBN 24054176
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been delivered via
e-service to the following:
curry_alan@dao.hctx.net
Chief Prosecutor, Appellate Division
Harris County District Attorney’s Office
1201 Franklin Suite 600
Houston, Texas 77002-1923
_s/Tonya Rolland McLaughlin
Tonya Rolland McLaughlin
CERTIFICATE OF COMPLIANCE
I certify that this computer-generated document has a word count of 2,578
words, based upon the representation provided by the word processing program used
to create the document.
_s/Tonya Rolland McLaughlin
Tonya Rolland McLaughlin
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