William Collins v. State ( 2015 )


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  •                                                                                   ACCEPTED
    07-15-00180-CR
    SEVENTH COURT OF APPEALS
    AMARILLO, TEXAS
    11/9/2015 11:10:16 PM
    Vivian Long, Clerk
    No. 07-15-00180-CR
    In The
    Court of Appeals
    FILED IN
    7th COURT OF APPEALS
    AMARILLO, TEXAS
    Seventh District of Texas              11/9/2015 11:10:16 PM
    Amarillo, Texas                    VIVIAN LONG
    CLERK
    WILLIAM COLLINS,
    Appellant,
    ---versus---
    THE STATE OF TEXAS,
    Appellee.
    On Appeal from Cause No. 2013-400,381
    In the 364th Judicial District Court of Lubbock County, Texas
    The Honorable William R. Eichman Presiding
    APPELLANT’S OPENING BRIEF ON THE MERITS
    Allison Clayton
    State Bar No. 24059587
    Law Office of Allison Clayton
    P.O. Box 64752
    Lubbock, Texas 79464
    (806) 773-6889
    Fax (888) 688-4515
    Allison@AllisonClaytonLaw.com
    Attorney for Appellant
    ORAL ARGUMENT REQUESTED
    IDENTITY OF PARTIES AND COUNSEL
    Pursuant to TEX. R. APP. P. 38.1(a), the following is a complete list of the
    names of the parties and their counsel.
    P ARTIES                                     C OUNSEL
    WILLIAM COLLINS                                 Trial Counsel
    Defendant / Appellant                           Matthew Hawkins
    Shackelford, Hawkins & Associates
    1402 Texas Avenue
    Lubbock, Texas 79401
    Appellate Counsel
    Allison Clayton
    The Law Office of
    B. Allison Clayton
    P.O. Box 64752
    Lubbock, Texas 79464-4752
    THE STATE OF TEXAS                               Trial Counsel
    Prosecution / Appellee                              Sean Long
    Aaron Moncibaiz
    Assistant District Attorneys
    P.O. Box 10536
    Lubbock, Texas 79408-3536
    Appellate Counsel
    Jeffrey S. Ford
    Assistant District Attorney
    P.O. Box 10536
    Lubbock, Texas 79408-3536
    -i-
    TABLE OF CONTENTS
    Identity of Parties and Counsel ........................................................................ i
    Table of Contents ............................................................................................ ii
    Index of Authorities....................................................................................... iii
    Statement of the Case .................................................................................... vi
    Issues Presented............................................................................................ vii
    Statement of Facts .......................................................................................... 2
    Summary of the Argument.............................................................................. 9
    Argument ..................................................................................................... 10
    I.       THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY’S FINDING THAT
    BILL ACTED IN RETALIATION ............................................................ 10
    A. Determining the Sufficiency of the Evidence
    Establishing Retaliatory Intent .............................................. 10
    B.    The Evidence is Insufficient to Establish Bill
    Acted with Retaliatory Intent ............................................... 13
    1. The Evidence Failed to Establish Bill Knew Olda
    Reported Him to be the Robber ...................................... 13
    2. The Evidence Failed to Establish Bill Robbed Juan.......... 15
    3. The Evidence Otherwise Failed to
    Prove Retaliatory Intent ................................................. 16
    II. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY’S FINDING THAT
    BILL USED A DEADLY WEAPON ....................................................... 17
    Prayer .......................................................................................................... 22
    Certificates.................................................................................................... 23
    - ii -
    INDEX OF AUTHORITIES
    CASES
    Brooks v. State,
    
    323 S.W.3d 893
    (Tex. Crim. App. 2010) ..................................................... 10
    Brown v. State,
    No. AP-77,019, 
    2015 WL 5453765
    (Tex. Crim. App. Sept. 16, 2015) ...... 11, 14
    Cada v. State,
    
    334 S.W.3d 766
    (Tex. Crim. App. 2011) ..................................................... 10
    Carlson v. State,
    
    940 S.W.2d 776
    (Tex. App.—Austin 1997, pet. ref’d) ................................. 19
    Clark v. State,
    
    886 S.W.2d 844
    (Tex. App.—Eastland 1994, no pet.)................................. 20
    Denham v. State,
    
    574 S.W.2d 129
    (Tex. Crim. App. 1978) ..................................................... 17
    Garcia v. State,
    
    919 S.W.2d 370
    (Tex. Crim. App. 1994) ..................................................... 10
    Gibson v. State,
    Nos. 07-13-00412-CR, 07-13-00413-CR, 
    2014 WL 4197529
      (Tex. App.—Amarillo Aug. 25, 2014, pet. ref’d) ......................................... 18
    Guevara v. State,
    
    152 S.W.3d 45
    (Tex. Crim. App. 2004) ....................................................... 11
    Helleson v. State,
    
    5 S.W.3d 393
    (Tex. App.—Fort Worth 1999, pet. ref'd) ........................ 12, 14
    Hemphill v. State,
    No. 08-03-00054-CR, 
    2004 WL 722247
     (Tex. App.—El Paso Apr. 1, 2004, pet. ref'd) ......................................... 18, 20
    - iii -
    INDEX OF AUTHORITIES
    CASES
    Herrera v. State,
    
    915 S.W.2d 94
    (Tex. App.—San Antonio 1996, no pet.) ............................. 12
    In re B.P.H.,
    
    83 S.W.3d 400
    (Tex. App.—Fort Worth 2002, no pet.) .............................. 12
    In re E.P.,
    
    257 S.W.3d 523
    (Tex. App.—Dallas 2008, no pet.) ................................ 16, 17
    In re K.H.,
    
    169 S.W.3d 459
    (Tex. App.—Texarkana 2005, no pet.) .............................. 15
    Jackson v. Virginia,
    
    443 U.S. 307
    , 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979) .................................... 10
    Lane v. State,
    
    151 S.W.3d 188
    (Tex. Crim. App. 2004) ..................................................... 19
    Moore v. State,
    No. 10-08-00211-CR, 
    2009 WL 1886450
     (Tex. App.—Waco July 1, 2009, pet. ref’d) ................................................ 18
    Ortiz v. State,
    
    93 S.W.3d 79
    (Tex. Crim. App. 2002) ......................................................... 14
    Powell v. State,
    
    939 S.W.2d 713
    (Tex. App.—El Paso 1997, no pet.)................................... 19
    Raybon v. State,
    No. 02-12-00071-CR, 
    2013 WL 4129126
     (Tex. App.—Fort Worth Aug. 15, 2013, pet. dsms’d).................................. 12
    Riley v. State,
    
    965 S.W.2d 1
    (Tex. App.—Houston [1st Dist.], pet. ref’d) ...................passim
    Thomas v. State,
    
    821 S.W.2d 616
    (Tex. Crim. App. 1991) ..................................................... 18
    - iv -
    INDEX OF AUTHORITIES
    CASES
    Tucker v. State,
    
    274 S.W.3d 688
    (Tex. Crim. App. 2008) ..................................................... 17
    Turner v. State,
    
    664 S.W.2d 86
    (Tex. Crim. App. 1983) .................................................. 18, 21
    Villarreal v. State,
    
    255 S.W.3d 205
    (Tex. App.—Waco 2008, no pet.) ................................. 18, 21
    Winfrey v. State,
    
    393 S.W.3d 763
    (Tex. Crim. App. 2013) ..................................................... 16
    STATUTES
    TEX. GOV’T CODE ANN. § 311.023 .................................................................. 11
    TEX. PEN. CODE ANN. § 1.07(17)(B) ............................................................... 17
    TEX. PEN. CODE ANN. § 12.42(d)..................................................................... vi
    TEX. PEN. CODE ANN. § 22.02(b)(2)(C) .......................................................vi, 11
    TEX. R. APP. P. 38.1(a) .................................................................................... i
    -v-
    STATEMENT OF THE CASE
    Nature             This is an appeal from a conviction for aggravated assault-
    of the
    Case               retaliation and the resultant ninety-nine-year sentence.
    Trial Court        The Honorable William Eichman, presiding judge of the
    364th Judicial District Court of Lubbock County, Texas.
    Course of the     On April 1, 2015, a jury convicted Appellant William
    Proceedings
    and               Collins of the first-degree felony of aggravated assault, done
    The Trial Court’s
    Disposition       with a deadly weapon (Appellant’s foot) and done in
    of the Case
    retaliation. TEX. PEN. CODE ANN. § 22.02(b)(2)(C); (6 RR
    147; CR 67). 1 Mr. Collins pled true to two prior felony
    convictions, and the jury assessed his punishment at
    confinement for a term of ninety-nine years. TEX. PEN.
    CODE ANN. § 12.42(d); (7 RR 42,78). Appellant filed a
    Motion for New Trial on April 6, 2015, followed by a Notice
    of Appeal on April 22, 2015.
    1 The record in this case consists of one volume of the Clerk’s Record and ten volumes of the
    Reporter’s Record. Throughout this brief, the Clerk’s Record is cited as “CR” followed by the
    pertinent page number. The Reporter’s Record is cited as “RR,” with the volume of the record
    preceding “RR” and the pertinent page number of the record following “RR.” For example,
    “6 RR 149” references the sixth volume of the Reporter’s Record at page 149.
    - vi -
    ISSUES PRESENTED
    I.
    Is the evidence establishing Appellant acted in retaliation insufficient?
    II.
    Is the evidence establishing Appellant used a deadly weapon during the course
    of an assault insufficient?
    - vii -
    No. 07-15-00180-CR
    In The
    Court of Appeals
    Seventh District of Texas
    Amarillo, Texas
    WILLIAM COLLINS,
    Appellant,
    ---versus---
    THE STATE OF TEXAS,
    Appellee.
    On Appeal from Cause No. 2013-400,381
    In the 364th Judicial District Court of Lubbock County, Texas
    The Honorable William R. Eichman Presiding
    APPELLANT’S OPENING BRIEF ON THE MERITS
    TO THE HONORABLE COURT OF APPEALS:
    WILLIAM COLLINS, Appellant in docket number 07-15-00180-CR, submits
    this Opening Brief on the Merits in support of his request to reverse the Judgment
    entered in cause number 2013-400,381 out of the 364th Judicial District Court
    and remand the case for further proceedings in the court below.
    -1-
    STATEMENT OF FACTS
    Juan Bazaldua was putting up groceries in his apartment when, out of
    nowhere, an unknown assailant attacked him. (5 RR 10). The assailant, using
    Juan’s own cane, hit Juan in the back and waist before taking Juan’s money and
    running away. (Id.). Juan did not know his attacker; he had never seen him
    before that day. (Id. 13, 17). All Juan knew was the attacker was wearing a red
    shirt with matching red pants. 2 (Id. 18).
    Even though Juan could have recognized the attacker (id. 13), police never
    provided Juan with a photo lineup (id. 22). In fact, the police never contacted
    Juan in an effort to take his statement or otherwise investigate Juan’s
    recollection of the incident. (Id. 22-23).
    After the attacker left, Juan went outside for help. (Id. 19). Juan’s
    neighbor, Olda Dean Lewis, was just coming out of the shower. (Id. 211). Even
    though he had not seen anything relating to the robbery, when Olda Dean saw
    Juan he knew something was wrong. (Id. 211; 216-17). Olda Dean went outside
    to see if he could help Juan. (Id.).
    2 Video surveillance at Juan’s apartment complex recorded a person dressed in all red
    running away from the area of Juan’s apartment at about the time of the robbery. (State’s
    Ex. 4). Unfortunately, the recording is very pixilated. It is impossible to glean much about
    the assailant from the video, other than the person was wearing all red. (State’s Ex. 4 at 0:20-
    0:31, 1:22-1:28).
    -2-
    Because he speaks broken English, Juan had difficulty communicating
    with Olda Dean about what had just happened. (Id. 19). Olda Dean managed
    to figure out the gist of what Juan was trying to convey, even though Juan
    himself “didn’t know what to say or how to say it.” (Id. 19). When Olda Dean
    asked who the attacker was, Juan got out a notepad and pointed to a red mark
    on the pad. (Id. 211). Juan told Olda Dean, “this color, clothes.” (Id.).
    Earlier that day, Olda Dean had visited with William “Bill” Collins. (Id.
    210). When Juan indicated red was “this color, clothes,” Olda Dean recalled
    “that morning [Bill] had on some red.” (Id. 211). At that point, Olda Dean
    “knew” it was Bill. (Id.). Olda Dean’s moment of revelation actually came
    during his 911 call. After Juan communicated the attacker was wearing red, Olda
    Dean said, “ok, he said the dude had red. I know who he is . . . He had all red on.
    Red top, red bottom.” (State’s Ex. 1 4:00-4:15). The operator then asked
    whether the attacker was Black, White, or Hispanic. (Id. at 4:15). Without
    hesitation or pausing to check with Juan, Olda Dean replies, “He’s Black.” (Id.
    4:18). Olda Dean went on to explain, “I know who he is. They call him Honey.”
    (Id. 4:33). Olda Dean did not personally see any part of the incident. (5 RR 216-
    17). He concluded because he had not seen anyone else wearing red that day, it
    must have been “Honey.” (Id. 217).
    -3-
    Olda Dean told police “everything [he] knew.” (Id. 217). Police took the
    alias “Honey” and put it into the police department’s name database, which is a
    compilation of known aliases and other contact information of included persons.
    (Id. 68-69). The database only contained one file with the moniker “Honey” –
    the file for Bill Collins, who goes by “Honey Nut.” (Id. 69, 133; State’s Ex. 7
    7:30). Consequently, the police turned their investigation to Bill.
    When he knew the police were wanting to speak with him, Bill called the
    investigating officer, Thomas Prumer. During that phone call, Bill admitted he
    was in the area at the time of the robbery and had run when he saw the assailant
    running. (State’s Ex. 7 1:44-1:47). Bill said on the day of the robbery, he was
    wearing a blue and red shirt with turquoise and yellow shorts (clearly not one for
    fashion). (Id. 3:42; 5:21-:26). Bill explained Juan has known Bill since Bill was
    a child. (Id. 2:27). Bill told Prumer to contact Juan, and Juan would verify Bill
    was not his attacker. (Id. 2:36, 8:05).
    Prumer did not reach out to Juan. (5 RR 22-23). Instead, Prumer asked
    Bill to come to the police station and submit himself to interrogation. Bill did as
    the officer requested, setting up a time for the interview, showing up, and
    answering Prumer’s questions for almost a full hour. (State’s Ex. 8).
    -4-
    During the interview, Bill said he had seen “Honey Pie” running from
    Juan’s apartment at the time of the robbery. 3 (Id. 6:47). Honey Pie had on a
    red Dickey suit. (Id. 4:15). Bill again urged Prumer to bring Juan in, as he was
    confident Juan could clear his name. (Id. 19:23, 22:00, 26:16, 32:10). Bill even
    offered to stand in a lineup. (Id. 4:04).
    In response to Bill’s pleas that Prumer actually speak with the victim,
    Prumer said he had contacted Juan, and Juan said Bill was the robber. (Id.
    32:00). Prumer had not contacted Juan. (5 RR 129). Even in the face of Prumer
    repeatedly saying Juan had implicated Bill, Bill steadfastly maintained Juan
    knew Bill, and he would verify Bill was not the attacker. (State’s Ex. 8, 32:48,
    34:13, 34:18, 38:14, 38:18, 38:22, 38:26, 52:01).
    Prumer also told Bill “numerous people” and “everyone” was saying Bill
    had attacked Juan. This, again, was not true. (5 RR 130). In the face of
    Prumer’s repeated attacks, based on blatantly incorrect statements, Bill held his
    ground, whimpering repeatedly that it was not him. (State’s Ex. 8 27:57, 28:34,
    38:38, 39:14, 40:58, 42:00, 43:48). Prumer’s case against Bill was built solely on
    the statements of a man who did not even witness the attack. (5 RR 131).
    3 Another resident at the apartment complex, Lee Hall, described for Prumer a “Honey Pie”
    who was wearing a red outfit. (5 RR 120). Prumer never asked Mr. Hall about “Honey Nut.”
    (Id. 122). He did not show Mr. Hall a picture of Bill to see if Mr. Hall recognized Bill. (Id.).
    -5-
    It was not until trial that Juan was asked who robbed him. Juan testified
    he would recognize his attacker. (5 RR 13). The following then occurred:
    Q.    Can you see all of the different people in the courtroom today?
    A.    Oh, yeah.
    Q.    Do you see the man who was in your apartment in the
    courtroom today?
    A.    I don’t see him.
    (Id. 13-14). The prosecution, testing Juan’s vision then asked,
    Q.    Can you see all the people? Can you see me?
    A.    Yeah.
    Q.    Can you see my face clearly?
    A.    Yes.
    (Id. 14). The court then excused the jury and allowed Juan “to walk around the
    courtroom . . . [and] look at everybody.” (Id. 15 (emphasis added)). Juan did as
    the court asked. (Id. 16). The following then occurred:
    THE COURT:        Did you get a chance to see everybody clearly?
    THE WITNESS: Yeah.
    THE COURT:        Okay. And did you see the guy who was in your
    apartment that night?
    THE WITNESS: Huh-uh.
    (Id. 16).
    -6-
    Ten days after Juan was robbed, Bill and Olda Dean got into a fight. Olda
    Dean was intoxicated, however, and the fight was short and very one-sided.
    Video surveillance, which again is so pixilated it is impossible to make out the
    identities of the people involved, showed one person going up to another person.
    (State’s Ex. 6 15:54). Observers said it was “Honey Nut” (which is Bill’s
    nickname) who went up to Olda Dean and instigated the fight. (5 RR 149, 155).
    The video shows Bill somehow struck Olda Dean, though there is no
    evidence he used a closed fist (in a punch) rather than an open hand (in a slap).
    (Id.; 6 RR 91). In any event, something happened and Olda Dean went down to
    the ground. (State’s Ex. 6 16:07). As Olda Dean was on the ground, Bill struck
    him two to three times with one of his feet. (Id. 16:17, 16:33; 6 RR 83-84).
    Evidence established Olda Dean suffered a 2 centimeter cut on the back of the
    his head, which required three staples, and a busted lip as a result of the incident.
    (5 RR 153; State’s Ex. 23 at 18).
    Bill went to the police station and admitted he had assaulted Olda Dean.
    (State’s Ex. 24). Bill explained the two did not get along because they “mess
    with the same girl.” (Id. 1:27, 2:02). He confessed to hitting Olda Dean once
    with his open hand (id. 5:42, 5:43, 5:58) and then kicking him in the face. ( 
    Id. 5:42-:45, 5:58,
    6:02-:06).
    -7-
    The State charged Bill with aggravated assault for causing bodily injury
    to Olda Dean by using a deadly weapon, i.e. his foot. The State also asserted Bill
    assaulted Olda Dean because Olda Dean had reported the robbery.
    Police suspected Bill’s retaliatory intent because the assault occurred the
    same day police interrogated Bill about the robbery. During the interrogation,
    the officer asked Bill who he routinely saw at the apartment complex. (State’s
    Ex. 8 11:54, 12:32). Bill began detailing some of the people he saw at the
    complex. (Id. 11:54-12:38). In this context, the officer asked, “do you know
    Olda?” (Id. 12:39). Bill responded he did not. (Id. 12:40). The officer then said,
    “Olda Lewis?” (Id. 12:43). Bill again indicated he did not know Olda. (Id.
    12:44).   Olda Dean later testified he goes by Olda or by Dean. (6 RR 23). No
    one ever asked Bill if he knew Dean. (5 RR 123). In fact, when Bill was later
    discussing the assault he said he assaulted Dean. (State’s Ex. 24 2:10). Several
    minutes later in the interview, Prumer shifted gears from finding out what Bill
    saw that day to directly accusing Bill of being the robber. (State’s Ex. 8 compare
    12:43 and 19:16). Police never told Bill that Olda Dean had implicated Bill in
    robbing Juan. Even if they had, they used a name Bill did not recognize.
    The jury found Bill guilty of aggravated assault-retaliation. They then
    sentenced him to serve ninety-nine years in prison. The instant appeal follows.
    -8-
    SUMMARY OF THE ARGUMENT
    A jury sentenced Bill Collins to ninety-nine years’ incarceration over a
    busted lip and a cut two centimeters (approximately ¾ of an inch) long.
    The jury found Bill robbed Juan Bazaldua and then assaulted Olda Dean
    Lewis when he found out Olda reported the robbery and Bill to the authorities.
    The evidence, however, is insufficient to establish the assault was in retaliation
    for Olda’s report. First, the evidence did not show Bill even knew Olda had
    reported him to the police as the robber. Moreover, Juan’s testimony at trial
    established Bill was not the person who robbed him.
    The jury also found Bill used his foot as a deadly weapon when he assaulted
    Olda. The evidence is not sufficient to support the jury’s determination. The
    evidence only showed Bill used his foot to kick Olda. A foot is not a deadly
    weapon, per se. Without some additional evidence establishing how the foot
    could have constituted a deadly weapon, the jury’s determination is
    insupportable. The State failed to offer any evidence about the size difference
    between Bill and Olda or Bill’s strength. There was no expert testimony about
    how Bill’s particular use of his foot on Olda elevated the assault to one involving
    a deadly weapon. Viewing all the record evidence, the jury’s deadly weapon
    determination is not supported by sufficient evidence.
    -9-
    ARGUMENT
    I. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY’S FINDING THAT
    BILL ACTED IN RETALIATION
    A. Determining the Sufficiency of the Evidence
    Establishing Retaliatory Intent
    Due process demands the State prove, beyond a reasonable doubt, every
    element of the crime charged. Jackson v. Virginia, 
    443 U.S. 307
    , 317-18, 
    99 S. Ct. 2781
    , 2788, 
    61 L. Ed. 2d 560
    (1979); Cada v. State, 
    334 S.W.3d 766
    , 773-74 (Tex.
    Crim. App. 2011). If the evidence was insufficient to support the jury’s verdict,
    it cannot stand. 
    Jackson, 443 U.S. at 317-18
    , 99 S.Ct. at 2788.
    In determining whether the evidence is sufficient to support a finding of
    guilt, the reviewing court should evaluate all of the record evidence in the light
    most favorable to the verdict and determine whether the factfinder was
    “rationally justified in finding guilt beyond a reasonable doubt.” Brooks v. State,
    
    323 S.W.3d 893
    , 902 (Tex. Crim. App. 2010); see 
    Jackson, 443 U.S. at 318
    , 99 S.Ct.
    at 2788. This standard applies to a review of a jury’s findings on punishment
    issues. Garcia v. State, 
    919 S.W.2d 370
    , 378 (Tex. Crim. App. 1994). This
    standard “gives full play to the responsibility of the trier of fact 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
    , 99 S.Ct.
    - 10 -
    at 2789. “If, given all of the evidence, a rational jury would necessarily entertain
    a reasonable doubt as to the defendant's guilt, the due process guarantee requires
    that we reverse and order a judgment of acquittal.” Guevara v. State, 
    152 S.W.3d 45
    , 49 (Tex. Crim. App. 2004) (emphasis in original).
    Section 22.02(b)(2)(C) of the Texas Penal Code establishes the following are
    the pertinent elements of aggravated assault-retaliation: The person
    (1) intentionally, knowingly, or recklessly causes bodily injury to another
    (2) using a deadly weapon
    (3) in retaliation against a prospective witness to or who has reported the
    occurrence of a crime.
    TEX. PEN. CODE ANN. § 22.02(b)(2)(C). Retaliation is not defined in Section
    22.02. See 
    id. It is,
    however, discussed as an independent offense in Section 36.06
    of the Penal Code. See 
    id. § 36.06;
    see Brown v. State, No. AP-77,019, 
    2015 WL 5453765
    (Tex. Crim. App. Sept. 16, 2015) (looking to Section 36.06 in the case of
    an offense under Section 19.03(a)(2), murder in the course of retaliation). That
    provision establishes a person commits the offense of retaliation if he
    intentionally or knowingly harms or threatens to harm another by an unlawful
    act in retaliation for the person reporting a crime. Id.; see TEX. GOV’T CODE ANN.
    § 311.023 (stating in construing a statute a court may consider laws on the same
    or similar subjects).
    - 11 -
    It is not sufficient for the State to merely prove the assault temporally
    followed report of the crime. See Raybon v. State, No. 02-12-00071-CR, 
    2013 WL 4129126
    at *4 (Tex. App.—Fort Worth Aug. 15, 2013, pet. dsms’d). Rather, the
    law requires the State to prove “the unlawful act was committed in retaliation
    for, or on account of, another person’s service . . .” Riley v. State, 
    965 S.W.2d 1
    ,
    2 (Tex. App.—Houston [1st Dist.], pet. ref’d); see Helleson v. State, 
    5 S.W.3d 393
    ,
    395 (Tex. App.—Fort Worth 1999, pet. ref’d) (establishing “[t]o support a
    conviction for the offense of retaliation, the evidence must establish the
    retributory element found in section 36.06(a)(1), i.e., that the unlawful act was
    committed in retaliation for or on account of another person’s service as a public
    servant”).
    Stated differently, “[r]etaliation is a result oriented offense and the focus
    is on whether the conduct is done with an intent to effect the result specified in
    the statute.” In re B.P.H., 
    83 S.W.3d 400
    , 407 (Tex. App.—Fort Worth 2002,
    no pet.). That is, did the defendant engage in the action with the intent to harm
    another because that person reported a crime or might later become a witness
    against him. See id.; Herrera v. State, 
    915 S.W.2d 94
    , 98 (Tex. App.—San
    Antonio 1996, no pet.).
    - 12 -
    B. The Evidence is Insufficient to Establish Bill Acted with Retaliatory Intent
    Bill assaulted Olda. He has never denied the assault. The question for the
    Court, however, is whether the assault was because of Olda reporting the robbery
    or because of a different, non-retaliatory reason. The answer to that question
    involves determining Bill’s state of mind at the time he assaulted Olda.
    1. The Evidence Failed to Establish Bill Knew Olda
    Reported Him to be the Robber
    As an initial matter, the State failed to establish Bill knew Olda had
    reported Bill to be the robber. Evidence at trial showed Bill knew Juan came out
    of his apartment after the assault and went to his neighbor’s (Olda’s) apartment.
    (State’s Ex. 8 2:08). Bill assumed, “I guess the guy next door called the police or
    whatever.”    (Id. 2:13).   Bill never indicated, however, that he knew Olda
    implicated him in the robbery during that call.
    Detective Prumer did ask if Bill knew Olda Lewis. He did so, however, in
    the context of Bill detailing everyone he knew at the complex, not in the context
    of Olda inculpating Bill as the robber. Moreover, there was no evidence to
    establish Bill knew Olda as “Olda” and not “Dean,” a name Olda also went by.
    So if Prumer’s statement could have somehow tipped off Bill that Olda said Bill
    was the robber, there is no evidence establishing Bill understood “Olda” to be the
    man he knew as “Dean.”
    - 13 -
    Bill would otherwise have no reason to conclude Olda implicated him in
    the robbery. Olda did not see the robbery. Bill steadfastly contended Juan (the
    robbery victim) would say Bill was not the robber. Therefore, Bill would have
    no grounds upon which to conclude Olda would implicate him in the phone call
    to the police.
    There is simply insufficient evidence indicating Bill knew Olda inculpated
    him. Without that requisite knowledge, there can be no retaliation. See 
    Helleson, 5 S.W.3d at 395
    ; 
    Riley, 965 S.W.2d at 2
    . Unless he knew Olda said “Bill was the
    robber,” Bill would have no reason to retaliate against him. See Ortiz v. State, 
    93 S.W.3d 79
    , 87 (Tex. Crim. App. 2002)(holding evidence supporting retaliation
    finding sufficient where the defendant and witness had committed crime together
    and therefore, without a doubt, the defendant knew the witness had knowledge
    of defendant’s participation in a crime); Brown v. State, 
    2015 WL 5453765
    at *7
    (holding evidence sufficient to support retaliation where defendant stated several
    times he knew the declarant had called the police). Because there is no evidence
    indicating Bill knew or should have known Olda made any such statement, the
    evidence is insufficient to support the retaliation element.
    - 14 -
    2. The Evidence Failed to Establish Bill Robbed Juan
    If Bill did not rob Juan, then there would likewise be no cause for him to
    retaliate against Olda. Olda was not a witness to the robbery. (5 RR 216-17).
    Juan was. (Id. 13). Bill was confident Juan would say Bill was not the robber.
    (State’s Ex. 8 19:23, 26:16, 32:10, 32:48, 34:13, 34:18, 35:18, 38:22, 38:26, 52:01).
    Juan was never asked to look at Bill before trial and verify Bill was the robber.
    (5 RR 22-23).      At trial, when he finally got the opportunity to voice his
    recollection, Juan essentially said Bill was not the robber – just as Bill had
    foretold. (Id. 13-16).
    If Bill did not rob Juan, then Bill would not have any reason to retaliate
    against Olda for calling 911. The only evidence indicating Bill was the one who
    robbed Juan was Olda’s testimony that Bill was wearing red the day of the
    robbery, which was the same color worn by the robber. Such a broad description,
    however, is a far cry from establishing with any degree of certainty that Bill and
    the robber were one and the same. This tenuous link breaks altogether when the
    robbery victim himself indicated Bill was not the robber.4
    4  The retaliation statute admittedly does not expressly require the defendant to have
    committed the underlying crime. See In re K.H., 
    169 S.W.3d 459
    , 464 (Tex. App.—Texarkana
    2005, no pet.)(holding Section 36.06 requires the State to prove the defendant had actually
    committed a crime in a case where the underlying action was not technically illegal). The
    statute makes no sense, however, if it can apply to an innocent person, for why would an
    innocent person care if someone reports a crime.
    - 15 -
    3. The Evidence Otherwise Failed to Prove Retaliatory Intent
    Immediately before the assault, Olda heard Bill say “you won’t say
    nothing else, you won’t do that again.” (6 RR 15). The factfinder is permitted
    to make rational inferences about whether a comment indicates a retaliatory
    intent. It may not, however, impermissibly speculate about one’s intent by
    “theorizing or guessing about the possible meaning of [the] facts and evidence
    presented.” Winfrey v. State, 
    393 S.W.3d 763
    , 771 (Tex. Crim. App. 2013).
    This statement is too vague to establish Bill was referencing Olda speaking
    with the police about the robbery. See In re E.P., 
    257 S.W.3d 523
    , 526 (Tex.
    App.—Dallas 2008, no pet.)(finding retaliatory intent in the phrase “I’m gonna
    kick your ass for turning me in”). There is no evidence the “that” to which Bill
    was referring was Olda speaking with the police about the robbery.              The
    statement could have referenced anything. Without something more to establish
    intent, this statement is insufficient to show Bill acted with retaliatory intent.
    Considering the entire record, the evidence is insufficient to establish Bill
    had any motive for retaliating against Olda. The evidence fell far short of
    proving Bill had even robbed Juan in the first place, much less that Bill knew
    Olda implicated him in the robbery. The evidence was insufficient to establish
    Bill had any retaliatory intent in assaulting Olda.
    - 16 -
    II. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY’S FINDING THAT
    BILL USED A DEADLY WEAPON
    A “deadly weapon” is “anything that in the manner of its use or intended
    use is capable of causing death or serious bodily injury.” TEX. PEN. CODE ANN.
    § 1.07(17)(B). “Serious bodily injury” is “bodily injury that creates a substantial
    risk of death or that causes death, serious permanent disfigurement, or protracted
    loss or impairment of the function of any bodily member or organ.” 
    Id. (46). In
    order to establish an object constituted a deadly weapon, the State is
    not required to make any one, specific showing. It need not show the victim
    actually suffered serious bodily injury. See Tucker v. State, 
    274 S.W.3d 688
    , 691
    (Tex. Crim. App. 2008). There is no prerequisite for expert testimony explaining
    how the object could be a deadly weapon. Denham v. State, 
    574 S.W.2d 129
    , 131
    (Tex. Crim. App. 1978) (en banc).
    While no one showing is necessary, the State must nevertheless provide for
    the jury sufficient evidence upon which it could conclude a particular object
    constitutes a deadly weapon. Even in cases where the weapon is a knife, the State
    must introduce evidence in the form of either the actual knife, a victim’s
    description of the knife or how it was used, evidence of the victim’s injuries, or
    testimony about the knife’s life-threatening capabilities before the jury can
    conclude the knife constituted a deadly weapon. See Gibson v. State, Nos. 07-13-
    - 17 -
    00412-CR, 07-13-00413-CR, 
    2014 WL 4197529
    , at *4 (Tex. App.—Amarillo Aug.
    25, 2014, pet. ref’d) citing Thomas v. State, 
    821 S.W.2d 616
    , 619 (Tex. Crim. App.
    1991) (en banc); Villarreal v. State, 
    255 S.W.3d 205
    , 209 (Tex. App.—Waco 2008,
    no pet.). No one factor is necessary, but there must be some combination of these
    or other relevant factors in order to establish an object was used as a deadly
    weapon.
    Applying this analysis to the instant case, there are several different factors
    that may aid in the determination of whether the evidence was sufficient to
    support the jury’s determination that a foot was used as a deadly weapon: the
    manner of its use or intended use; the nature or existence of inflicted wounds; and
    any testimony of the object’s life-threatening capabilities. See 
    Villarreal, 255 S.W.3d at 209
    ; Moore v. State, No. 10-08-00211-CR, 
    2009 WL 1886450
    (Tex.
    App.—Waco July 1, 2009, pet. ref’d)(applying Villarreal in a case where the
    deadly weapon was alleged to be a foot). Evidence about the relative size of the
    parties and the size and condition of the foot may also support the jury’s
    determination. See Turner v. State, 
    664 S.W.2d 86
    , 90 n. 5 (Tex. Crim. App. 1983);
    Hemphill, 
    2004 WL 722247
    at *4.
    - 18 -
    For example, in one case the defendant first knocked his wife to the floor
    and then kicked her in the lower back and chest. Lane v. State, 
    151 S.W.3d 188
    ,
    192 (Tex. Crim. App. 2004). As a result of the attack the wife lost consciousness
    and suffered a concussion. 
    Id. Additional evidence
    from a paramedic, a nurse,
    and two police officers established the defendant’s use of his hands and feet could
    cause seriously bodily injury. 
    Id. Based on
    this combination of facts, the Court
    of Criminal Appeals found the evidence was sufficient to support the jury’s
    deadly weapon finding.
    In a similar case, the evidence was sufficient where a witness testified as to
    defendant’s actions during the attack; a doctor testified such actions could cause
    serious bodily injury; and the victim suffered a concussion. Powell v. State, 
    939 S.W.2d 713
    , 718 (Tex. App.—El Paso 1997, no pet.). Again, the deadly weapon
    evidence was sufficient in a case where the victim suffered several broken bones
    in his face, an eyewitness testified about the specific manner in which the victim
    was attacked, and there was evidence the attack was so violent the attacker
    injured himself. Carlson v. State, 
    940 S.W.2d 776
    , 780 (Tex. App.—Austin 1997,
    pet. ref’d).
    - 19 -
    The jury may also consider the relative sizes of the attacker and victim. In
    yet another case where the evidence supported the deadly weapon finding, the
    victim was 5’2” and 105 pounds, and her attacker was 5’8” and 200 pounds.
    Hemphill v. State, No. 08-03-00054-CR, 
    2004 WL 722247
    , at *4 (Tex. App.—El
    Paso Apr. 1, 2004, pet. ref’d). The victim detailed the assault, wherein she
    sustained “severe” injuries and bruising. 
    Id. A doctor
    and a police officer both
    testified the attacker’s use of his hands and knees in the manner used against the
    victim, could be deadly. Id.; See Clark v. State, 
    886 S.W.2d 844
    , 845 (Tex. App.—
    Eastland 1994, no pet.)(evidence supported finding feet constituted deadly
    weapons where the defendant struck and kicked a two-year-old child in a manner
    capable of causing death).
    Even with the wide latitude allowed to the State in establishing the deadly
    weapon enhancement, the State in the case at bar failed to provide evidence
    proving Bill used his foot as a deadly weapon. The evidence against Bill is a very
    pixilated recording showing one figure (Bill) striking another (Olda) with his foot.
    While such an action is undoubtly an assault (for which Bill took responsibility),
    there is nothing more indicating Bill’s foot was a deadly weapon.
    - 20 -
    There was no evidence about any size difference between Bill and Olda. See
    
    Villarreal, 255 S.W.3d at 209
    . There was likewise nothing establishing whether
    Bill was barefoot or wearing boots. See 
    Turner, 664 S.W.2d at 90
    n. 5. While Bill
    admitted he kicked Olda in the face, there was no evidence indicating he did so
    with any great measure of force. There was no evidence establishing Bill was
    particularly strong or heavy and that he was otherwise capable of utilizing his
    foot as a deadly weapon.
    There was also no evidence of severe injuries. Olda only suffered a busted
    lip and a two centimeter cut. There was no evidence of a concussion. (State’s
    Ex. 23, pg. 12). There were no fractures. (Id. 6). Olda did stay in the hospital
    for approximately five days, but there was absolutely no evidence indicting he
    had to stay for treatment of the busted lip and cut caused by Bill. To the
    contrary, the medical records indicated Olda had several underlying problems
    (independent of Bill’s assault) requiring medical treatment. None of those
    conditions, however, were linked to Bill. Finally, there was no testimony from
    either a police officer or a medical expert that evaluated Bill’s attack and
    concluded Bill’s foot constituted a deadly weapon.
    - 21 -
    The State does not have to show Olda actually suffered a severe injury or
    provide expert testimony or show what kind of footwear Bill had on at the time
    of the attack or any one of the factors detailed above. No one factor is required,
    but there is not even a combination of factors upon which the jury’s finding can
    stand. The State has to provide some form of evidence establishing something
    beyond mere assault with a foot. A foot is not per se a deadly weapon. The State
    cannot simply allege Bill used his foot to kick Olda and present no additional
    evidence establishing how his foot (in addition to being an instrument of assault)
    was utilized as a deadly weapon.
    The State only proved Bill used his foot to kick Olda. Bill admitted as
    much himself. It did not, however, present any additional evidence establishing
    how that use entered the deadly weapon realm. The record evidence is insufficient
    to establish Bill used his foot as a deadly weapon.
    III. PRAYER
    Appellant Bill Collins, prays this Court would find the evidence supporting
    the jury’s verdict as to the retaliation and deadly weapon issues was insufficient.
    Accordingly, Mr. Collins asks the Court reverse the Judgment and remand the
    case for additional proceedings.
    - 22 -
    Respectfully submitted,
    Law Office of Allison Clayton
    P.O. Box 64752
    Lubbock, Texas 79464-4752
    Phone No.: (806) 773-6889
    Fax No.: (888) 688-4515
    By: /s/ Allison Clayton
    Allison Clayton
    State Bar No. 24059587
    Allison@AllisonClaytonLaw.com
    - 23 -
    CERTIFICATE OF SERVICE
    I certify that on November 9, 2015, a copy of this brief was served on
    opposing counsel, Jeffrey S. Ford of the Lubbock County District Attorney’s
    Office, via electronic mail.
    /s/ Allison Clayton
    Allison Clayton
    CERTIFICATE OF COMPLIANCE
    I certify the foregoing Brief on the Merits complies with Rule 9.4(i)(2)(A)
    of the Texas Rules of Appellate Procedure. The brief, excluding those portions
    detailed in Rule 9.4(i) of the Texas Rules of Appellate Procedure, is 4,867 words
    long. I have relied upon the word count function of Microsoft Word, which is the
    computer program used to prepare this document, in making this representation.
    /s/ Allison Clayton
    Allison Clayton
    - 24 -