ACCEPTED
06-16-00072-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
10/10/2016 12:00:00 AM
DEBBIE AUTREY
CLERK
06-16-00072-CR
In The FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
COURT OF APPEALS 10/10/2016 9:41:00 AM
SIXTH DISTRICT OF TEXAS DEBBIE AUTREY
AT TEXARKANA Clerk
__________________________________________________________________
TIMOTHY JAMES MAYS, Appellant
VS.
THE STATE OF TEXAS, Appellee
On Appeal from County Court at Law #1
of Hunt County, Texas
Trial Court Cause CR1500926
Honorable Timothy J. Linden, 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. CR1500926.
Oral Arguments Requested
1
I. IDENTITY OF PARTIES AND COUNSEL
Appellant's Attorney:
Jessica Edwards
P.O. Box 9318
Greenville, TX 75404
Appellant's Attorney at Trial:
Shaun Council
The Council Law Firm, PLLC.,
2615 Lee Street,
Greenville, Texas 75403
Appellee:
The State of Texas by and through
Matthew Brett Morris
Assistant Hunt County Attorney
4th Floor Hunt County Courthouse
2507 Lee Street
Greenville, TX 75401
2
II. TABLE OF CONTENTS
I. IDENTITY OF PARTIES AND COUNSEL ......................................................2
II. TABLE OF CONTENTS ....................................................................................3
III. INDEX OF AUTHORITIES ............................................................................5
A. Case Law ..........................................................................................................5
B. Statutes..............................................................................................................6
IV. STATEMENT OF THE CASE ........................................................................7
V. ISSUES PRESENTED ........................................................................................7
A. Point of Error Number 1 ...................................................................................7
The trial court erred in denying Appellant’s request to include an accomplice-
witness instruction in the jury charge after defense counsel properly objected. .7
B. Point of Error Number 2 ...................................................................................7
Withstanding the first point of error, the evidence is legally insufficient to find
Appellant guilty of assault causing bodily injury, as the only evidence against
Appellant was uncorroborated accomplice witness testimony merely showing
the crime had been committed. ............................................................................7
VI. STATEMENT OF FACTS ...............................................................................7
VII. POINT OF ERROR NUMBER ONE ............................................................13
A. Issue Presented ...............................................................................................14
B. The Law ..........................................................................................................14
C. Argument ........................................................................................................18
D. Harm Analysis ................................................................................................25
VIII. POINT OF ERROR NUMBER TWO............................................................27
A. The Law ..........................................................................................................27
B. Argument ........................................................................................................28
IX. PRAYER FOR RELIEF .................................................................................30
3
X. CERTIFICATE OF SERVICE ..........................................................................31
XI. CERTIFICATE OF SERVICE .......................................................................31
XII. CERTIFICATE OF COMPLIANCE .............................................................31
4
III. INDEX OF AUTHORITIES
A. Case Law
Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) ......................... 25,26
Biera v. State, 280 S.W.3d 388, 394 (Tex. App.—Amarillo 2008, pet. ref'd) ........26
Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998) ..................... 14,15,16
Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.Crim.App.2010). ............. 14,15,27
Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999) .................................17
Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). ...............................28
Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006) ......................... 16,18
Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002) ................................25
Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S.Ct. 2781, 2788–89, 61 L.Ed.2d
560 (1979). ...........................................................................................................27
Laster v. State, 275 S.W.3d 512, 517(Tex.Crim.App.2009) ...................................27
Maynard v. State, 166 S.W.3d 403, 410 (Tex.App.-Austin 2005, pet. ref’d...........16
McFarland v. State, 928 S.W.2d at 514...................................................................15
Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim. App. 1999) ........................... 14,18
Riggs v. State, 744 S.W.2d 140, 141 (Tex. App. 1986) ..................................... 15,17
Singletary v. State, 509 S.W.2d 572, 575 (Tex. Crim. App. 1974) .........................14
Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011) ................................17
Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App.2001) ................................16
Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982); 28
Walker v. State, 615 S.W.2d 728, 731 (Tex.Crim.App.1981) .................................16
Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007................................28
Wincott v. State, 59 S.W.3d 691, 698 (Tex.App.-Austin 2001, pet. ref’d)..............16
5
B. Statutes
Tex. Code Crim. Proc. §36.19, V.A.C.C.P. (1974) .................................................25
Tex. Pen. Code Ann. §7.01(a) (Vernon 1974) .........................................................15
6
IV. STATEMENT OF THE CASE
This is an appeal of judgment and sentence in a criminal case from the
County Court at Law #1, Hunt County, Texas. Appellant was convicted of Assault
Causing Bodily Injury on March 29, 2016 after a jury trial. On that same date, the
jury assessed Appellant’s punishment at 2 years community supervision and a
$2,000 fine. Appellant appeals this conviction.
V. ISSUES PRESENTED
A. Point of Error Number 1
The trial court erred in denying Appellant’s request to include an
accomplice-witness instruction in the jury charge after defense counsel
properly objected.
B. Point of Error Number 2
Withstanding the first point of error, the evidence is legally insufficient to
find Appellant guilty of assault causing bodily injury, as the only evidence
against Appellant was uncorroborated accomplice witness testimony merely
showing the crime had been committed.
VI. STATEMENT OF FACTS
Appellant was charged by information with the offense of assault causing
bodily injury on September 8th, 2015.1 The information alleged that on or about
the 3rd day of August, 2015, A.D., in Hunt County, Texas, Appellant did then and
1 (C.R. 1, p. 6).
7
there intentionally, knowingly, or recklessly cause bodily injury to Hank Allison
by striking the body of the victim with BB pellets shot from a BB gun.2
At trial, the State first called alleged victim, Hank Allison ("Allison").3
Allison testified that on the afternoon of August 30th, 2015, he was mowing his
lawn via riding lawnmower at a trailer park in Commerce, Texas.4 While mowing,
Allison witnessed Appellant and other individuals congregating near Appellant's
truck in a nearby lot.5 Allison testified the group of individuals was composed of
Appellant, four young men, and one woman.6 The named individuals involved
were later identified as Appellant Timothy James Mays, Appellant's girlfriend
Chastin Michelle White, Dwayne Cash, Dwayne's sixteen-year old son Kiland
Cash, and Jordan Patrick.
After observing the group Allison continued to mow, but Allison testified he
then felt a "sharp pain in [his] back" that sent a shock wave through his body.7
Allison testified he "instantly knew what happened" and that he knew he had been
shot.8 Allison testified he knew this because he "had seen Tim with that pump-up
BB pellet gun many times at night and during the day shooting it around there."9
2 (R.R. 3. P. 11).
3 (R.R. 3, p. 19).
4 (R.R. 3, p. 19-20).
5 (R.R. 3, p. 21).
6 (R.R. 3, p. 24).
7 (R.R. 3, p. 22).
8 (R.R. 3, p. 24).
9 Id.
8
After stopping the mower, Allison then walked over to the group of
individuals congregating near Appellant's truck.10 Allison approached the group to
"find out who done it and ask for an apology."11 Allison testified the group laughed
at him and that Appellant told Allison that something must have flown up from the
mower and struck him in the back.12 Allison, having not received an apology, re-
mounted his mower and finished mowing; he then went inside, got his phone and
called 911.13 Allison testified that the four individuals with Appellant were already
departing the scene when Allison informed them he had phoned the police, the
individuals then started walking faster.14 Allison testified that when the police
arrived, only Appellant's girlfriend and himself were present near the scene.15
Allison testified he did not see Appellant or anyone else shoot him because
Allison's back was turned.16 Allison testified he observed Appellant and four other
people "minutes before" something hit him in the back.17 Allison was not familiar
with any of the individuals in the group, aside from Appellant due to previous
interactions.18 Allison had never had any conflict with Appellant prior to that day. 19
10 (R.R. 3, p. 24).
11 (R.R. 3, p. 25).
12 Id.
13 (R.R. 3, p. 26).
14 Id.
15 (R.R. 3, p. 27).
16 (R.R. 3, p. 31).
17 (R.R. 3, p. 32).
18 (R.R. 3, p. 44).
19 (R.R. 3, p. 45).
9
Allison testified all of the individuals he approached after dismounting his mower
were laughing and "carrying on about something."20 Allison believed all of the
individuals in the group seemed to "know what was going on."21
After Allison testified, the State called Kiland Cash ("Cash").22 Cash
testified he was not a personal friend of Appellant, noting he only knew Appellant
as a friend of his father's.23 Cash also testified it was the first time he met Jordan
Patrick.24 Cash testified he and the others were present on the day in question to fix
the broken axle of a mobile home.25 Cash testified that upon arriving to where
Appellant and the others were, he noticed a BB gun lying in the back of what he
assumed was Appellant's truck.26
Cash then testified that Appellant said "Watch this," immediately before
shooting a BB gun in the direction of Allison.27 Cash said he did not see a shot but
saw "the old guy" on the mower react to a shot.28 Cash testified that the only thing
he remembered after the alleged shot was Allison yelling that he was calling the
police.29 Cash denied laughing when approached by Allison and testified that he
20 (R.R. 3, p. 34).
21 (R.R. 3, p. 39).
22 (R.R. 3, p. 49).
23 Id.
24 (R.R. 3, p. 55).
25 (R.R. 3, p. 48-49).
26 (R.R. 3, p. 49).
27 (R.R. 3, p. 52-53).
28 (R.R. 3, p. 53).
29 (R.R. 3, p. 56).
10
decided to leave because of his status as a varsity high-school athlete.30 Cash could
not remember if Appellant left the scene before or after he departed.31 Cash then
admitted to leaving the scene after learning Allison called the police; he also
testified to later being picked up by police while walking away from the scene
alongside Jordan Patrick.32
The State then called Jordan Patrick ("Patrick").33 Patrick arrived to testify
the day of trial restrained by handcuffs and shackles.34 The Court gave Appellant's
trial counsel limiting instruction as to the scope of Patrick's criminal history before
proceeding.35 Patrick testified that he did not know Appellant personally but that
he saw Appellant shoot Allison with a BB gun.36 Patrick testified that he was in the
presence of Appellant and the others when Appellant grabbed a BB gun and shot it,
but he denied laughing when approached by Allison.37 Patrick further testified
Appellant "ran" after Allison informed those present that he was calling the
police.38 After leaving, Patrick testified he was apprehended by police while
walking with Cash approximately a quarter-mile away from where the incident
30 (R.R. 3, p. 60-63).
31 (R.R. 3, p. 57-58).
32 (R.R. 3, p. 55).
33 (R.R. 3, p. 77).
34 (R.R. 3, p. 76).
35 (R.R. 3, p. 73).
36 (R.R. 3, p. 79-84).
37 (R.R. 3, p. 84).
38 (R.R. 3, p. 85).
11
occurred.39 Importantly, Patrick testified that he could not remember how many
days during the month of August that he was using drugs.40 Patrick testified that he
was likely under the influence of narcotics on the day in question.41 Patrick
testified he was on felony probation for failing a urinary analysis but accurately
remembered the events that occurred that day.42
Next, the State called Officer Samantha Manrique ("Manrique"), the Officer
who first arrived on location, dispatched because of Allison's call.43 Manrique
testified she first made contact with Allison who told her the males had fled the
scene but that Appellant's girlfriend was still present.44 Manrique then identified
the woman present on the scene as Chastin Michelle White ("White") due to
previous interactions.45 Manrique testified she made contact with White but did not
believe her to be the alleged shooter.46 Manrique then testified she was unable to
locate a weapon in the thick brush or from the search of Appellant's vehicle.47
Manrique testified that based on what she had gathered from witnesses,
specifically "…the victim, two witnesses who witnessed it as well that are
39 (R.R. 3, p. 96-97).
40 (R.R. 3, p. 90).
41 Id.
42 (R.R. 3, p. 86-91).
43 (R.R. 3, p. 98).
44 (R.R. 3, p. 103).
45 Id.
46 (R.R. 3, p. 103-04).
47 (R.R. 3, p. 105-06).
12
independent" that there was enough information to charge Appellant with a
crime.48
After the State rested, Appellant's counsel moved the court to make a finding
that Cash and Patrick were party to the action and requested a directed verdict
based on inability to corroborate the facts of the case outside their own testimony.49
Appellant's trial counsel then moved for a directed verdict based on insufficiency
of the evidence, specifically, an inability to "connect the dots between this alleged
shooting and the actual injury being a result of that shooting."50 Further,
Appellant's trial counsel objected to the charge, specifically to "any charge that
does not include an instruction as to the law of parties…" which the court denied.51
Next, Appellant’s trail defense counsel submitted a proposed charge having
removed the word “or” from in-between “BB” and “pellets” to read “… by
striking the body of the victim with BB pellets…” in order to separate the two
objects as they are mutually exclusive.52 After the closing arguments, the jury
returned a guilty verdict upon which this appeal is based.
VII. POINT OF ERROR NUMBER ONE
48 (R.R. 3, p. 106-10).
49 (R.R. 3, p. 130-31).
50 (R.R. 3, p. 131).
51 (R.R. 3, p. 137-38, 141).
52 (R.R. 3, p. 134).
13
The trial court erred in denying Appellant his right to the inclusion of an
accomplice-witness instruction in the jury charge after defense counsel properly
objected.
A. Issue Presented
Whether a jury must be instructed to determine if the State's witnesses are
accomplices under art. 38.14, Texas Code of Criminal Procedure, when the
witnesses were found having fled the scene, having delivered inconsistent
testimony, and when Appellant's trial counsel properly objected.
B. The Law
In Singletary, the court explained that if there is a conflict in the evidence
regarding an accomplice witness, the court should charge the jury on the question
of whether the witness was an accomplice as a matter of fact. But if there is not
enough evidence to support a charge against the witness either as a principal, an
accomplice, or an accessory, then he is not an accomplice witness.53 If the evidence
is conflicting, it is proper to leave the question of whether an inculpatory witness is
an accomplice witness as a matter of fact to the jury under instructions defining the
term accomplice.54
An accomplice witness is one who can be prosecuted for the offense with
which the accused is charged or for a lessor-included offense.55 Mere presence at
53 Singletary v. State, 509 S.W.2d 572, 575 (Tex. Crim. App. 1974)
54 Blake v. State, 971 S.W.2d 451, 455 (Tex. Crim. App. 1998)
55 Brooks v. State, 686 S.W.2d 952, 957 (Tex.Crim.App.1985) (en banc); Medina v. State, 7
S.W.3d 633, 641 (Tex.Crim.App.1999).
14
the scene of the commission of a crime does not compel the conclusion that a
witness is an accomplice witness.56 In determining whether a witness is an
accomplice the evidence must be viewed in the same manner that evidence would
be viewed in determining whether a person should be found a party to a crime. 57
As the court in Gonzales explained, "to constitute one an accessory in this state his
participation in the crime and acts must all have occurred subsequent to the
commission of the offense. And to constitute one an accomplice, his acts must
have occurred prior to the commission, and he at the time doing nothing in the
furtherance of the common purpose and design."58
The court must look to the events before, during, and after the commission
of a crime to determine the involvement of the accomplice witness.59 A person is
an accomplice if there is sufficient evidence connecting him to the criminal offense
as a blameworthy participant.60 The participation necessary to be considered an
accomplice must involve an affirmative act or omission by the witness to promote
the commission of the offense.61
56 Brooks at 957.
57 Tex. Penal Code Ann. sec. 7.01(a) (Vernon 1974).
58 Id. at 576.
59 Brooks v. State, 686 S.W.2d at 957. Riggs v. State, 744 S.W.2d 140, 141 (Tex. App. 1986).
60 Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App.1998).
61 Id. at 454; McFarland v. State, 928 S.W.2d at 514.
15
A State’s witness may be an accomplice as a matter of law or as a matter of
fact.62 Whether the witness is actually charged with a crime for participation in the
offense is irrelevant; what is relevant is what is shown by the evidence.63 Under
article 38.14 of the Texas Code of Criminal Procedure “[a] conviction cannot be
had upon the testimony of an accomplice unless corroborated by other evidence
tending to connect the defendant with the offense committed; and the corroboration
is not sufficient if it merely shows the commission of the offense.”
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.”64 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.65 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.66
62 Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App. 2006).
63 Blake v State at 455.
64 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).
65 Druery at 498.
66 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).
16
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.67
However, evidence that merely proves that the offense was committed does not
suffice.68
For example, in Riggs the court found the testimony of an accomplice
witness to be unreliable because of the witness's tacit involvement in crimes
leading up to the murder. The court agreed with Appellant that the trial court erred
as a matter of law in failing to submit to the jury the witnesses’ role as an
accomplice. The court stated “Where there is doubt whether a witness is an
accomplice, submitting the issue to the jury is sufficient even though the evidence
seems to preponderate in favor of the conclusion that the witness is an accomplice
as a matter of law.”69
The Legislature has held that the fact finder in any criminal case should
exercise caution when considering the testimony of an accomplice.70 Accomplice
testimony is particularly suspect as “accomplices often have incentives to lie, such
as to avoid punishment or shift blame to another person.”71 The defendant is
entitled to an accomplice-witness instruction if and only if “there is sufficient
67 Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999).
68 Id.
69 Riggs v. State, 744 S.W.2d 140, 142 (Tex. App.—Houston [1st Dist.] 1986, no pet.)
70 Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011)
71 Id.
17
evidence in the record to support a charge against the witness alleged to be an
accomplice.”72
But, as the court stated in Cocke, "it is well settled that a defendant has a
right to an instruction on any defensive issue raised by the evidence, whether that
evidence is weak or strong, unimpeached or contradicted, and regardless of what
the trial court may think about the credibility of the evidence." This rule is
designed to ensure that the jury, not the judge, decides the credibility of the
evidence.73
C. Argument
The trial court erred in denying Appellant his right to the inclusion of an
accomplice-witness instruction in the jury charge because there is sufficient
evidence present in the record to support the Appellant's theory that Kiland Cash
and Jordan Patrick, two witnesses who testified on behalf of the State, were
accomplice–witnesses. Their testimony was uncorroborated outside of each other's
accounts and they were circumstantially connected and complicit to the
commission of the crime as either accomplices or accessories.
A review of the facts brings to light the inaccuracies apparent in Cash's and
Patrick's accounts of the events and their inherent untrustworthiness. More
72 Id. at 455 (internal quotation marks omitted); Medina v. State, 7 S.W.3d 633, 641 (Tex. Crim.
App. 1999)
73 Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006)
18
importantly, the court's act of unilaterally deciding that Cash and Patrick were not
accomplice–witnesses usurped the role of the jury and deprived Appellant of an
impartial trial. The failure of the court to include accomplice-witness instruction in
the charge ultimately led to the erroneous conviction of Appellant. Without the
uncorroborated testimony from Cash or Patrick, the State would otherwise have
been unable to support a conviction, which violated article 38.14 of the Texas
Code of Criminal Procedure because the State would only be able to show the
possible commission of a crime.
Beginning by order of appearance and looking at the involvement of Kiland
Cash before, during, and after the commission of the alleged crime, it can be
determined that Cash's testimony is both untrustworthy and inconsistent and thus
required the court to submit as an issue to be resolved as a matter of fact by the
jury upon instruction.
Cash testified that on the day in question he had never before met or spoken
to Jordan Patrick. This is inconsistent when viewed by his actions, namely being
found walking with Patrick shortly before being apprehended by police, having
already fled the scene of the incident. Cash met Patrick the day of the incident and
both were by all accounts accessories because of their failure to disclose to Officer
Manrique the location of the BB gun, which is an affirmative act.
19
Additionally, the period in-between when the alleged shooting took place
and when Cash and Patrick were apprehended gave both subjects many
opportunities to fabricate and corroborate each other's fictitious accounts of what
transpired. Doubt was cast and is present in the record as to the witnesses’ statuses
as a matter of fact. Such doubt was expressed as Appellant's trial defense counsel
timely and properly objected to preserve the error. Appellant's defense counsel
illustrated the need for witness-accomplice instruction in order to put the jury on
notice that the reliability of testimony from Cash and Patrick was untrustworthy.
Here, when Appellant's trial defense counsel properly objected, the court should
have found conflict enough to include charge to the jury as an issue of fact in order
to comport with decades of precedent.
There was no evidence produced at trial that would corroborate the
accomplice witness testimony. No weapon was recovered, no ammunition or
packaging for ammunition was recovered, there was no recordation or mention of
the crime by Appellant, and the victim alone is unable to substantiate the weapon
used, or if a weapon was used, or the identity of the shooter. Moreover, the
uncorroborated testimony of Cash merely shows a crime may have been
committed. However, as Appellant's trial defense counsel suggested, there remains
nothing in the record to connect the dots.
20
Additionally, viewing the actions of Cash after the commission of the
alleged crime and when confronted by Allison, Cash was unable to corroborate
Patrick's testimony, and vice-versa. Namely, Allison's testimony regarding his
confronting of the group after he had been shot is in stark contrast to Cash's and
Patrick's testimony. Allison testified that the group was laughing and carrying on
about something. Cash's recollection was of Allison informing the group that
Allison was calling the cops. Patrick's recollection added that Allison approached
the group and demanded an apology. Neither Cash nor Patrick admitted to
laughing. Differing accounts of what transpired should have exposed to the trial
court that certain facts were muddled and Appellant's request to include
accomplice–witness instruction was substantiated from such accounts.
Additionally, looking at the actions of the Cash as the Officer viewed them,
Cash could just have easily have been charged with the crime had Appellant been
apprehended first. Cash was present at the scene, denied involvement when
confronted by Allison, and ultimately fled upon realizing the police were on the
way. These actions when applied to the standard used in Blake should be regarded
as affirmative actions, enough so to qualify Cash as an accomplice witness, or at
the least, submit the issue to the jury.
Cash's status as an accessory is consistent as his testimony reveals he
observed a weapon initially in Appellant's truck, then in Appellant's hands, but he
21
was unable to place the weapon when confronted by Allison who saw the group
laughing, or when question by Officer Manrique. Cash's testimony elicited doubt
regarding his criminal involvement in the incident. Accordingly, Cash should have
been viewed as an accomplice-witness, and the trial court should have allowed the
issue to be submitted to the jury when Appellant's trial counsel objected.
Further, Cash essentially testified that Appellant's actions were nearly
identical to his own but Cash rearranged Appellant as the alleged shooter in place
of either himself, Patrick, or his father, Dwayne Cash. The irony remains that
because Cash and Patrick were apprehended prior to Appellant, they were able to
deliver their account to Manrique and avoid arrest.
The testimony of Patrick reveals a similar pattern of untrustworthy actions
reflected in the record. However, his testimony is even less credible as Patrick
admitted it was likely a recollection of what transpired when he was under the
influence of illegal narcotics. Patrick's testimony, as Appellant's trial defense
counsel correctly stated, was potentially motivated by self-preservation because
Patrick was on probation at the time of the incident.
Also, while fleeing the scene Patrick had the opportunity and motive to
corroborate with the younger, more impressionable Cash. Cash was a sixteen-year
old, and by every account, a child; whereas Patrick, a known felon housed in a
substance abuse program and admittedly on drugs throughout the events likely
22
acted with self-preservation in mind. Patrick's status as an accomplice or accessory
is equal to or above Cash because of his questionable sobriety and criminal record.
For these reasons, Appellant was entitled to accomplice-witness in the jury charge.
These events alone give the court reason to include accomplice–witness
instruction, if not an obligation. As the court stated in Cocke, the rule is designed
to ensure that the jury, not the judge, decides the credibility of the evidence.
Ultimately, because of the error of the trial court, the jury was unable to
accurately assess the credibility of the witnesses due in part to (1) the unconnected
non-accomplice evidence presented, and (2) the issue as a matter of fact as to
whether Patrick and Cash were accomplice witnesses. The record reflects the
limited persuasive value of the unconnected non-accomplice evidence presented.
Alone, this evidence would at best possibly show a crime had been committed.
This submission would not comport with article 38.14 and likely result in outright
dismissal prior to any trial ever being set.
The importance of the non-accomplice evidence available in the record
reveals beyond question the status of Cash and Patrick as accomplice–witnesses.
To illustrate this, the court could simply look at the testimony of Allison and
Manrique on the assumption it was relied on by the State to corroborate Cash's and
Patrick's testimony. In doing so it becomes clear the State was unable to connect
the dots and corroborate much of anything, aside from Allison's injury from an
23
unknown object. As such, it was error for the trial court to rule out the possibility
of the Appellant's defensive theory.
Allison's testimony failed to corroborate anything besides either he was hit
with debris from a mower or that a crime may have been committed. Allison's
testimony regarding previous sightings of Appellant using a BB gun shows nothing
more than Appellant's possible ownership or use of a BB gun. Should the court
allow ownership of a commonly owned instrument, possibly used in a crime, to
suffice as corroborative or connective non-accomplice evidence without more
detail, would open the door to flagrant prosecutorial abuse and endless uncertainty.
It would potentially allow non-accomplice testimony to corroborate anything, like
an alleged drunk driver's ownership of a car used as evidence to connect him to
drunk driving because non-accomplice witness testimony may have seen him
driving a car in the weeks prior to the event.
Allison's testimony provided nothing other than the fact that it was a BB gun
he had previously seen in the weeks prior. BB guns are common instruments;
ownership alone without further details or descriptions shows nothing but possible
ownership and fails to meet any standard of corroboration. Ultimately, because
issues of fact regarding the testimony and status of accomplice-witnesses were
present in the record and properly objected to, the trial court should not have
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unilaterally ruled out Appellant's defensive theory and should have submitted the
issue to the jury.
D. Harm Analysis
The degree of harm that must be present to require reversal of a case
depends upon whether the error was preserved or unpreserved.74 Concerning error
that was preserved at trial by a timely and specific objection, that error must have
been “calculated to injure the rights of [the] defendant.”75 A defendant must have
suffered “some” actual, rather than theoretical, harm from the error in order for a
case to be overturned.76 The Court of Criminal Appeals chose the term "some" to
indicated the minimum degree of harm necessary for reversal of cases involving
preserved charging error.77 In determining the strength of a particular item of non-
accomplice evidence, we examine (1) its reliability or believability and (2) the
strength of its tendency to connect the defendant to the crime. 78
Courts in Texas have held that if appellant properly preserved his claim of
error by timely calling to the trial court's attention the omission of an accomplice in
fact instruction, the court reviews the error to determine if “some” harm resulted
74 Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986)
75 Article 36.19, V.A.C.C.P. (1974)
76 Id.
77 Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986)
78 Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002)
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from the omission.79 Courts have held that cases involving preserved charge error
are to be affirmed only if no harm has occurred.80
Here, the essence of the error by the trial court in failing to include
accomplice–witness instruction lies in the near-absolutism that Appellant would
not have been convicted but not for the uncorroborated testimony of Cash and
Patrick. The record reveals Appellant's trial defense counsel timely and properly
preserving error by objecting. The certainty that harm is present fits squarely into
the courts definition of "some harm” in Arline, and very likely rising above the
minimal degree of harm required for reversal. A review of the record shows that
without their uncorroborated testimony the State would be left solely with the
testimony of Allison and Officer Manrique. The State would undoubtedly be able
to show the deficient prong of article 38.14, that the crime was committed.
However, the State would falter on the principal element of 38.14, that Appellant
committed the crime. This is because Allison never saw the shot, White told the
Officer nothing of value, and the Officer arrived on scene only to find no weapon
and no Appellant. Instead, the officer did find a felon who was likely not sober and
an impressionable teenager concerned more with high-school athletics than the
health and wellbeing of his fellow man. Both were given enough time while
79 Biera v. State, 280 S.W.3d 388, 394 (Tex. App.—Amarillo 2008, pet. ref'd)
80 Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986)
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fleeing and the opportunity to conceal and inculpate any crime on Appellant,
diverting investigative attention away from themselves. The trial court's decision to
rule out the possibility of the existence of Appellant's theory was harmful. As a
result, Appellant was convicted on account of such refusal without the jury having
had the chance to consider the possibility the accomplices or be warned of their
degree of involvement.
VIII. POINT OF ERROR NUMBER TWO
The evidence is legally insufficient to find Appellant guilty of assault causing
bodily injury, as the only evidence against Appellant was uncorroborated
accomplice witness testimony.
A. The Law
Challenges to the sufficiency of the evidence are reviewed under the
standard enunciated in Jackson v. Virginia.81 Under the Jackson standard, evidence
is insufficient to support a conviction if, considering all the record evidence in the
light most favorable to the verdict, no rational fact finder could have found that
each essential element of the charged offense was proven beyond a reasonable
doubt.82 Evidence is insufficient under four circumstances: (1) the record contains
no evidence probative of an element of the offense; (2) the record contains a mere
81 Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S.Ct. 2781, 2788–89, 61 L.Ed.2d 560 (1979).
Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.Crim.App.2010).
82 See Jackson, 443 U.S. at 317–19, 99 S.Ct. at 2788–89; Laster v. State, 275 S.W.3d 512,
517(Tex.Crim.App.2009).
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“modicum” of evidence probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; or (4) the acts alleged do not
constitute the criminal offense charged.83 We consider both direct and
circumstantial evidence and all reasonable inferences that may be drawn from that
evidence in making our determination.84
The Jackson standard defers to the fact finder to resolve any conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from “basic
facts to ultimate facts.”85 An appellate court presumes the fact finder resolved any
conflicts in the evidence in favor of the verdict and defers to that resolution,
provided that the resolution is rational.86 If an appellate court finds the evidence
insufficient under this standard— meaning that no rational fact finder could have
found that each essential element of the charged offense was proven beyond a
reasonable doubt—it must reverse the judgment and enter an order of acquittal.87
B. Argument
The State failed to produce sufficient evidence to support the conviction of
Appellant. On the assumption this court shares the position of Appellant on the
83 See Jackson, 443 U.S. 66 at 314, 318, 99 S.Ct. at 2786, 2788–89 & n. 11; Laster, 275 S.W.3d
at 518; Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007).
84 Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).
85 Jackson, 443 U.S. at 318–19, 99 S.Ct. at 2788–89; Clayton, 235 S.W.3d at 778.
86 See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793.
87 See Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982); Jackson,
443 U.S. at 317–19.
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first point of error, the testimony of Cash and Patrick is to be viewed as removed.
Then, a review of the record leaves the State with an insufficient amount of
testimony and evidence that at best, possibly shows a mere modicum of evidence
probative of an element of the offense, specifically, the identity of the person who
committed the crime. While the testimony of Allison could possibly establish the
commission of a crime, the State, without corroborated testimony from other
witness, of which there was none, would be unable to prove all of the elements of
the assault.
Further, the State would be forced to rely on the testimony of Allison, a
victim who did not see the assailant's identity or actions and did not see the weapon
used to commit the alleged act. While the State would likely rely upon Allison's
account of having seen Appellant with a BB gun in the weeks leading up to the
incident, this would only conclusively establish reasonable doubt in the record as
the State would be unable to offer anything of more value relating to the
culpability or identity of the alleged shooter.
Additionally, Appellant’s defense counsel’s removal of the word “or” from
the State’s proposed jury charge matching the information rendered the verdict
incorrect as there is no probative evidence of “BB pellets” used in the commission
of any crime. BBs and pellets are mutually exclusive as they are completely
different types of ammunition. A review of the record possibly reflects the use of
29
BBs, but there is no mention and thus insufficient evidence to sustain that Allison
was in fact struck by “BB pellets.” At the time of this brief, there exists no such
combination or anything called a “BB pellet”. There are BBs and there are pellets
and these two forms of ammunition are completely different from each other.
Because the State omitted the disjunctive connector “or,” the record cannot affirm
the conviction on account of a completely non-existent object as an element in the
information.
Therefore, because of flagrant error on account of the flawed jury charge and
insufficient evidence in the record, the State’s conviction cannot be affirmed.
Accordingly, Appellant’s conviction should be reversed and rendered.
IX. 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
Timothy James Mays
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State Bar Number - 24000994
P.O. Box 9318
Greenville, Texas 75404
Telephone Number - (903) 458-9108
Facsimile Number - (903) 200-1359
jessica@jessicaedwardslaw.com
X. CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant's Brief was served on the
Hunt County Attorney's Office through the efiletexas website on October 9, 2016.
/s/ Jessica Edwards
Jessica Edwards
XI. CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant's Brief was delivered to
Appellant via certified mail.
/s/ Jessica Edwards
Jessica Edwards
XII. CERTIFICATE OF COMPLIANCE
I certify that Appellant's Brief is written in Times New Roman font in 14-
point text. Appellant's brief has 6,199 words according to the word count feature
on the undersigned attorneys word processing program.
/s/ Jessica Edwards
Jessica Edwards
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Timothy James Mays v. State
Combined Opinion