Kellum, Demetrius ( 2015 )

PD-0613-15
No. 12-14-00184-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
DEMETRIUS KELLUM
RECEIVED JM
Appellant, °^*<»MfiX^
JW 29 2015
v.
THE STATE OF TEXAS
Appellee
On-Appeal from the 114th District Court of Smith County, Texas
Trial Cause No. 114-1918-13
FILED IN
ORAL ARGUMENT NOT REQUESTED COURT OF CRIlVliNAL APPEALS
Austin Reeve Jackson
Texas Bar No. 24046139 Ab8i Acosta> Cierk
112 East Line, Suite 310
Tyler^ TX 75702
Telephone: (903) 595-6070
Facsimile: (866)387-0152
IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellate Counsel:
Austin Reeve Jackson
112 East Line,.Suite 310
Tyler, TX 75702 •<
Trial Counsel:
Melvin Thompson
2108 S. Wall Ave.
Tyler, TX 75701
Attorney for the State
Mr. Michael West
Smith County ADA
100 N.Broadway
Tyler, TX 75702
u
No. 12-14-00184-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
DEMETRIUS KELLUM
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 114th District Court of Smith County, Texas
Trial Cause No. 114-1918-13
TO THE HONORABLE JUSTICES OF THE COURT:
COMES NOW, Demetrius Kellum, by and through his attorney of record,
Austin Reeve Jackson, and files this his brief pursuant to the Texas Rules of Ap
pellate Procedure, and would show the Court as follows:
TEXAS COURTS OF APPEAL:
Allen v. State,
249 S.W.3d 680 (Tex.App.—Austin 2008) 12
STATUTES:
Tex. Pen. Code § 9.31 4,10
Tex. Pen. Code § 9.32 4
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ii
^ TABLE OF CONTENTS iii
v INDEX OF AUTHORITIES iv
Statement of the case 2
n issues presented 2
x statement of facts 2
\ summary of the argument 4
vargument 4
i. t h e evidence is l e g a l l y insufficient t o suppor
t h e jury's r e j e c t i o n o f self-defense 4
Standard of Review 5
Evidentiary Summary 6
Diane Marvels 6
Ruby Lowerie 8
Windell Williams 9
Other Evidence 10
Application of Law to Facts 10
CONCLUSION AND PRAYER 12
CERTIFICATE OF SERVICE 13
CERTIFICATE OF COMPLIANCE 13
in
INDEX OF AUTHORITIES
UNITED STATES SUPREME COURT:
* Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) 5
TEXAS COURT OF CRIMINAL APPEALS:
\ Brooks v. State,
323 S.W.3d 893 (Tex.Crim.App. 2010) 11 —
Connor v. State,
67 S.W.3d 192 (Tex.Crim.App. 2001) 6
Gollihar v. State,
46 S.W.3d 243 (Tex.Crim.App. 2001) 12
Hooper v. State,
214 S.W.3d 9 (Tex.Crim.App. 2007) 5
Malik v. State,
953 S.W.2d 234 (Tex.Crim.App. 1997) 5
Roberts v. State,
273 S.W.3d 322 (Tex.Crim.App. 2008) 12
Sanders v. State,
119 S.W.3d 818 (Tex.Crim.App. 2003) 11 -
^ Saxton v. State,
804 S.W.2d 910 (Tex.Crim.App. 1991) 5, 11
^Zulianai v. State,
97 S.W.3d 589 (Tex.Crim.App. 2003) 5 -
IV
STATEMENT OF THE CASE
Demetrius Kellum appeals his conviction and sentence for the offense of ag
gravated assault. (I CR 88). Mr. Kellum was indicted for this offense in Decem
ber in the 114th District Court of Smith County, Texas. (I CR 1). To this charge
he entered a plea of "not guilty" and proceeded to trial by jury. (I CR 88). In June
of 2014, a guilty verdict was returned against him and sentence imposed at con
finement for life. (I CR 89). Sentence was pronounced on 5 June and notice of
appeal then timely filed. (I CR 89, 95).
ISSUE PRESENTED
L THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUP
PORT THE JURY'S REJECTION OF SELF-DEFENSE.
STATEMENT OF FACTS
On a fall evening in November of 2013, Appellant, Mr. Demetrius Kellum,
was at home with his girlfriend Ruby Lowerie. (IX RR 123). They were joined by
Diane Marvels, a friend of Ms. Lowerie, who also brought her boyfriend Windell
Williams the alleged victim in this case. (IX RR 56). Mr. Williams arrived at the
gathering already having had a fair amount of alcohol and he continued to drink
while at Ms. Lowerie's home. (IX RR 56, 59).
The group decided to go to a local club where Mr. Williams again continued
to drink. (IX RR 60, 63). They weren't there long before Mr. Williams' intoxicat
ed behavior drew the attention of club staff who attempted to enlist the help of Mr.
Kellum in calming Mr. Williams down. (IX RR 65, 132, 171). Unfortunately, Mr.
Kellum was unsuccessful and Mr. Williams was forcefully removed from the club
for misbehaving and "fighting with everybody." (IX RR 131, 171).
Having come in the same car the whole group left after Mr. Williams was
kicked-out. (IX RR 137-38). Unfortunately, Mr. Williams continued his aggres
sive behavior in the car this time directing it at Mr. Kellum. (Id.). They had not
driven far when, at a stop sign, both Mr. Kellum and Mr. Williams exited the vehi
cle and started fighting. (IX RR 138-39). The fight didn't last long and both men
returned to the vehicle. (IX RR 80). Mr. Williams continued to act in an irate
manner as they drove home and he actually attempted to continue the fight after
Mr. Kellum arrived home, exited the vehicle, and went into his house. (IX RR
168). After Mr. Williams eventually calmed down, Ms. Marvels noticed the extent
of the injuries he had received in the fight that included several cuts from a small
knife Mr. Kellum had employed. (IX RR 83).
n) Although Mr. Williams' initially did not want the involvement of law en-
forcement and reiterated at trial that the underlying situation was very much one of
mutual combat, Mr. Kellum was nonetheless charged with the offense of aggravat
ed assault based on the incident. (I CR 1). To this charge he entered a plea of "not
guilty" and proceeded to trial by jury. (ICR 88). In June of 2014, a guilty verdict
was returned against him and sentence imposed at confinement for life. (I CR 89).
Sentence was pronounced on 5 June and notice of appeal then timely filed. (I CR
89, 95).
SUMMARY OF ARGUMENT
Where the overwhelming evidence at trial, even when viewed in the light
most favorable to the State, leads to the conclusion that a defendant has acted in
self defense, a guilty verdict is necessarily based on legally insufficient evidence
and due process requires that an appellate court reverse the judgment of conviction
and render a judgment of acquittal.
ARGUMENT
L THE EVIDENCE IS LEGALLY INSUFFICIENT TO
SUPPORT THE JURY'S REJECTION OF SELF-
DEFENSE
Texas law permits a person to use force against another when it is reasona
bly necessary to do so to protect the person or that person's home and property.
Tex. Pen. Code § 9.31. This includes the use of deadly force when permissible.
Tex. Pen. Code § 9.32. Because the record in this case establishes that Mr. Kel
lum acted in accordance with his legal right to self-defense, the jury erred in reject-
ing his claim of self-defense and the conviction returned rests on legally insuffi-
cient evidence.
Standard of Review
A verdict finding a defendant to be guilty of a criminal offense carries with
it an implicit finding against any defensive issues raised. Zidiani v. State, 97
S.W.3d 589, 594 (Tex.Crim.App. 2003). When a defendant challenges such a re
jection of his claim of self-defense, an appellate court looks to whether, after view
ing the record in the light most favorable to the prosecution, any rational trier of
fact could have found against the defendant on the issue of self-defense beyond a
reasonable doubt. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991).
While this review considers the quality of the evidence produced, it also defers to
the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts."
Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) (citing Jackson v. Virgin
ia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
Such challenges are made by considering the evidence presented against a
hypothetically correct jury charge, ty) Malik v. State, 953 S.W.2d 234, 240
(Tex.Crim.App. 1997). A hypothetically correct jury charge is one that "sets out
the law, is authorized by the indictment, does not unnecessarily increase the State's
burden of proof or unnecessarily restrict the State's theories of liability, and ade
quately describes the particular offense for which the defendant was tried." Id. at
240. In making this review, a court should consider the entirety of the evidence to
determine whether any rational trier of fact could have found against the defendant
on the issue of self-defense beyond a reasonable doubt. Conner v. State, 67
S.W.3d 192, 197 (Tex.Crim.App. 2001).
Evidentiary Summary
In this case, there were essentially four potential witnesses to the alleged ag
gravated assault: Diane Marvels, Ruby Lowerie, Windell Williams, and Mr. Kel
lum. Importantly, all who testified gave similar testimony regarding the mutual
combat nature of the incident. (IX RR 70, 74-86, 138-39: X RR 37, 44, 47).
Diane Marvels
Ms. Marvels, the girlfriend of the alleged victim in this case, was the first of
the four to testify. (IX RR 51). Ms. Marvels testified that on the date of this inci
dent she and her friend, Ruby Lowerie, got together at Ms. Lowerie's home. (IX
RR 56). Mr. Williams, the alleged victim, accompanied Ms. Lowerie and through
her met Mr. Kellum. (IX RR 59).
Before arriving at Ms. Lowerie's home Mr. Williams and Ms. Marvels were
drinking; as to how much, the amount varied by each witness. (IX RR 56). Once
they arrived, both Ms. Marvels and Mr. Williams continued to drink. (IX RR 59).
Eventually the group decided to leave the house and go to a nearby club called Ba
nana Tree. (IX RR 60). At the club the group once again had more alcohol. (IX
RR 63).
Not long after they arrived Mr. Williams' behavior got him kicked-out of the
club. (IX RR 65). As a result, the whole group was forced to leave as they had
come in one car. (IX RR 68). Almost immediately Mr. Williams became verbally
irate with Mr. Kellum and an argument ensued. (IX RR 69). When the car
stopped at a stop sign both Mr. Williams and Mr. Kellum "jumped out of the car"
and began fighting. (IX RR 70). Ms. Marvels was unable to recall who exited the
car first and did not see who started swinging first. (IX RR 74-76). She was able
to remember though that, at least at one point, Mr. Kellum was on top of Mr. Wil
liams. (IX RR 77-78).
Fortunately, a man who happened to be in the area was able to fairly quickly
break-up the scuffle. (IX RR 79). The fighting stopped, at least for the moment,
both men got back in the car and continued their verbal argument. (LX RR 80).
When they arrived back at Ms. Lowerie's home though Mr. Williams pursued Mr.
Kellum in an attempt to continue the argument. (IX RR 81). After exchanging
words for a moment or two, Mr. Kellum went inside his house and Mr. Williams
eventually returned to the car. (IX RR 82-83). It was only then that Ms. Marvels
noticed the extent of Mr. Williams' injuries. (IX RR 83). Throughout it all Ms.
Marvels noted that Mr. Williams was behaving as tough he had had "a little bit too
much to drink," an opinion shared by the EMT who eventually examined Mr. Wil
liams. (IX RR 46, 99). Additionally, Ms. stated noted that it was Mr. Kellum who
attempted to abandon the fight while Mr. Williams sought to continue it. (IX RR
109).
Ruby Lowerie
Much of Ms. Lowerie's testimony was similar to that of Ms. Marvels but
Ms. Lowerie was able to add that part of what had instigated Mr. Williams' anger
at Mr. Kellum was Mr. Kellum's attempts to get Mr. Williams to behave better
while the group was at the club. (IX RR 131). Moreover, unlike Ms. Marvels, Ms.
Lowerie had been present when Mr. Williams was removed from the club for
"fighting with everybody." (IX RR 171). Again, Mr. Kellum had attempted to
calm him down and get him to relax and improve his behavior. (IX RR 132).
This dynamic continued when the group got in their car to leave the club and
Mr. Williams became irate with Mr. Kellum, calling him a "bitch, hoe, etc." (IX
RR 136). In response, Mr. Kellum once more remained calm. (IX RR 137-38).
Further, according to Ms. Lowerie, it was Mr. Williams who then first exited the
car at the stop sign and then opened Mr. Kellum's door so that he could pull Mr.
Kellum out of the car and physically attack him. (IX RR 138-39, 165).
Like Ms. Marvels, Ms. Lowerie reiterated that Mr. Williams was intoxicated
and the only person in the group whose behavior was such that they were kicked
out of the club. (IX RR 153, 159). And, once more, she noted that it was Mr. Wil-
Hams who, when Mr. Kellum attempted to leave the group and enter his home,
continued to try and instigate another physical altercation. (IX RR 168).
Windell Williams ^
Mr. Williams began his testimony by conceding that he had been drinking
throughout the day of the incident. (X RR 26). In fact, he testified that he could
not remember parts of that evening because of the amount of alcohol he had con
sumed. (X RR 33-34). Specifically, he did not remember any argument at the Ba
nana Tree with Mr. Kellum, being asked to leave the club, or what the reason was
that he had been removed from the club. (IX RR 34, 50). He did, however, claim
to be able to remember that it was Mr. Kellum who had begun the initial argument
as Mr. Kellum was upset that the group had been forced to leave the club early be
cause of Mr. Williams. (X RR 37). According to Mr. Williams, this argument be
came "heated" and when the vehicle stopped at the stop sign both he and Mr. Kel
lum got out of the car. (X RR 37).
I don't recall [who got out first]. I mean, you know, when someone is
in an altercation and doors open, I don't know who opened those
doors first. I don't know who punched - I just know we had an alter
cation at the stop sign. We both got out of the car and we both had an
altercation, two men; I know that.
(X RR 37). Importantly, Mr. Williams was clear that the only reason he got out of
the vehicle was so that he could engage in a physical altercation with Mr. Kellum:
... I mean, that's - that's what I got out of the car for, to fight. That's
what I got out of the car for, to fight. ... That's what I got out of the
car to do.
(Id.).
When later asked by law enforcement about the assault, Mr. Williams initial
ly denied knowing who had assaulted him and made it clear, perhaps because of a
guilty conscious, that he did not want law enforcement involved. (X RR 47, 121).
Other Evidence
In addition to the foregoing, much of which indicated that Mr. Kellum was
acting in self-defense and merely "trying to push Mr. Williams off of him because
Mr. Williams was really drunk" (IX RR 165), the State did present evidence that
Mr. Kellum had little to no injury while Mr. Williams' injuries were extensive.
(IX RR 35-39; X RR 139). This, the State argued, supported the idea that Mr. Kel
lum had "brought a knife to a fistfight and, even if he had initially acted in self-
defense he had unjustifiably increased the level of violence in the altercation.
Application of Law To Facts
Recognizing as fundamental the right to protect one's person, the Texas
Legislature has codified the right to self-defense against an aggressor's use of force
so long as the actor did not provoke the initial conduct and was not himself other
wise engaged in criminal activity. Tex. Pen. Code § 9.31(a)(2),(3). This descrip
tion exactly fits Mr. Kellum's position at the time of the underlying altercation.
10
The record is clear that Mr. Williams, who was intoxicated, had bee aggressive
with staff in the Banana Tree and had directed some of his anger at being removed
from the club toward Mr. Kellum who had been attempting to be a calming influ
ence on Mr. Williams. (IX RR 131-32, 171). Moreover, at worst, the evidence
showed that the decision to engage in an altercation was one that was simultaneous
between Mr. Kellum and Mr. Williams. (X RR 37). That Mr. Williams was the
primary aggressor though is the only reasonable deduction from the fact that all
parties testified that it was Mr. Williams who repeatedly attempted to continue the
altercation and who pursued Mr. Kellum even after Mr. Kellum entered his own
home. (IX RR 81, 168).
Thus, even in the light most favorable to the verdict, the evidence is legally
insufficient to support the conclusion that Mr. -S*»rth-acted in any way other than in
self-defense. See Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003)
(standard of review); but see Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.
2010) (an appellate court will not reweigh evidence but will defer to the jury's res
olution of conflicts in the same); Saxton v. State, 804 S.W.2d 910, 912
(Tex.Crim.App. 1991) ("[F]or an appellate court to find as a matter of law that the
defendant acted in self-defense, the evidence must be uncontradicted and no issue
thereon presented for the [factfinder's] determination.").
n
\ The court of Criminal Appeals has held that, "Due process requires the pros
ecution to prove beyond a reasonable doubt every fact necessarv to constitute the..
offense alleged." Roberts v. State, 273 S.W.3d 322, 329 (Tex.Crim.App. 2008).
The role of an appellate court is to safeguard this due process right. Allen v. State,
249 S.W.3d 680, 704 (Tex.App.—Austin 2008, no pet.) (citing Gollihar v. State,
46 S.W.3d 243, 245-46 (Tex.Crim.App. 2001)). Acting in this capacity, because
the record before the Court fails to establish a basis from which the jury should
have reasonably rejected Mr. Kellum's claim of self-defense, the Court should re
verse the judgment before it and render a judgment of acquittal.
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court,
because the evidence is legally insufficient to support the jury's implied finding
against Mr. Kellum regarding self defense, that the Court reverse the underlying
judgment and render a judgment of acquittal.
Respectfully submitted,
Isi Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866)387-0152
12
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this brief was delivered to counsel for
the State by facsimile on this the 24th day of November 2014.
Is/ Austin Reeve Jackson
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the requirements of Rule 9.4 and
consists of 2,748 words.
' /s/ Austin Reeve Jackson
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13