Donny Joe Curry v. State ( 2015 )


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  •                                                                                         ACCEPTED
    06-14-00139-CR
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    1/20/2015 9:36:05 PM
    DEBBIE AUTREY
    CLERK
    NO. 06-14-00139-CR
    ____________________________________________________________
    FILED IN
    6th COURT OF APPEALS
    TEXARKANA, TEXAS
    IN THE COURT OF APPEALS SIXTH          DISTRICT
    1/23/2015 1:35:00 PM
    DEBBIE AUTREY
    AT TEXARKANA, TEXAS                     Clerk
    ____________________________________________________________
    DONNY JOE CURRY, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    ____________________________________________________________
    APPEAL IN CAUSE NUMBER CR1301508
    IN THE COUNTY COURT AT LAW NUMBER 1
    OF HUNT COUNTY, TEXAS
    ____________________________________________________________
    BRIEF FOR APPELLANT
    ____________________________________________________________
    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.
    CR1301508.
    Appellant Requests Oral Argument
    IDENTITY OF PARTIES AND COUNSEL
    Appellant’s Attorney:
    Jason A. Duff
    2615 Lee Street
    P.O. Box 11
    Greenville, Texas 75403-0011
    Appellant’s Trial Attorney:
    Toby Wilkinson
    P.O. Box 851266
    Mesquite, Texas 75149
    Appellee:
    The State of Texas by and through
    Joel Littlefield
    Hunt County Attorney
    4th Floor Hunt County Courthouse
    2500 Lee Street
    Greenville, Texas 75401
    Appellee’s Trial Counsel:
    DISTRICT ATTORNEY OF COLLIN COUNTY
    BY: MR. JACKSON DAVID 'JACKSON MCMINN' MCMINN
    2100 BLOOMDALE ROAD
    MCKINNEY, TX 75071
    SUITE 100
    2
    TABLE OF CONTENTS
    Identity of the Parties and Counsel ............................................................. 2
    Table of Contents ....................................................................................... 3
    Index of Authorities ..................................................................................... 4
    Statement of the Case ................................................................................ 6
    Issues Presented ........................................................................................ 7
    Statement of the Facts ................................................................................ 8
    Summary of the Argument ........................................................................ 10
    Argument and Authorities ......................................................................... 11
    Issue Number One ......................................................................... 11
    The evidence is legally insufficient to prove beyond reasonable
    doubt, that Curry Resisting Arrest.
    Prayer for relief ........................................................................................ 17
    Certificate of compliance of typeface and Word Count ............................. 18
    Certificate of Service ................................................................................. 19
    3
    INDEX OF AUTHORITIES
    FEDERAL CASES:
    Jackson v. Virginia, 
    443 U.S. 307
    . ............................................................ 11
    STATE CASES:
    Alexander v. State, 
    740 S.W.2d 749
    , 758 (Tex. Crim. App. 1987)............. 12
    Barnes v. State, 
    876 S.W.2d 316
    , 321 (Tex. Crim. App. 1994) ................. 12
    Cordova v. State, 
    698 S.W.2d 107
    (Tex. Crim. App. 1985) ……….……...12
    Hooper v. State, 
    214 S.W.3d 9
    , 13, 15-17 (Tex. Crim. App. 2007) ............ 12
    Johnson v. State, 
    871 S.W.2d 183
    , 186 (Tex. Crim. App. 1993) ............... 12
    Laster v. State, 
    275 S.W.3d 512
    (Tex. Crim. App. 2009) ......................... 11
    Navarro v.State, 
    810 S.W.2d 432
    , 435 (Tex. App.—San Antonio 1991, pet.
    refd) .......................................................................................................... 16
    Pumphrey v. State, 
    245 S.W.3d 85
    (Tex. App. Texarkana 2008) ............. 13
    Reedy v. State, 
    214 S.W.3d 567
    (Tex. App.—Austin 2006) ..................... 16
    Sheehan v. State, 
    201 S.W.3d 820
    (Tex. App. Waco 2006, no pet.) ........ 14
    Shelton v. State, 
    795 S.W.2d 162
    , 167 (Tex.Crim.App.1989) ................... 16
    Urbano v. State, 
    837 S.W.2d 114
    , 116 (Tex.Crim.App. 1992) ................... 16
    Vodochodsky v. State, 
    158 S.W.3d 502
    , (Tex. Crim. App. 2005) ............. 11
    Washington v. State 
    127 S.W.3d 197
    (Tex. App. Houston [1st Dist.] 2003,
    pet. dism’d) ............................................................................................... 11
    4
    STATE STATUTES:
    TEX PENAL CODE ANN. § 6.03(a) & (b) (West 2011) ............................ 15
    TEX PENAL CODE ANN. § . §38.03(a) (Casemaker 2014) ..................... 12
    5
    STATEMENT OF THE CASE
    This is an appeal of the judgment and sentence in a criminal case for
    the County Court at Law No. 1, in Hunt County, Texas. Appellant was
    convicted by the trial court of Resisting Arrest in CR1301508.
    Appellant was assessed a sentence of 275 days, in the Hunt County
    Jail. Notice of appeal was given on August 1, 2014. The clerk's record
    was filed on October 1, 2014; the reporter's record was filed on November
    3, 2014.
    6
    ISSUE PRESENTED
    Issue One:     The evidence is legally insufficient to prove beyond
    reasonable doubt, that Curry committed the offense of Resisting
    Arrest.
    7
    STATEMENT OF THE FACTS
    On March 1, 2013, Donny Joe Curry (Appellant) was stopped by
    Officer Samantha Marique in Commerce, Texas. (RR Vol. 9 p. 63).
    Marique testified at trial that while on a routine patrol she notice a blue
    vehicle with no rear license plate. Marique further testified that when she
    confronted Appellant he state that he had no driver’s license and no
    insurance. (RR Vol. 9. 63). Later, Marique simply states that Appellant only
    gave her the name of Donny and that there was no registration insignia on
    the front of the windshield. (RR Vol. 9. 67).
    Marique felt that she needed back up to deal with appellant so she
    called for the help of Officers Pehl and Scott. During that time Appellant
    waited in his vehicle. When Pehl and Scott arrived, Marique briefly
    explained why she had pulled Appellant over. Pehl immediately opened
    the Appellant’s door ordered him to exit and used a Taser on Appellant.
    Marnique stated that while being Tased, Appellant held on to the steering
    wheel. (RR Vol. 9. 69). After Appellant screamed in pain from the Taser,
    and requested of Pehl to follow the law, Pehl removed Appellant from the
    vehicle. As officer Pehl removed Appellant from the car Appellant held his
    arms up in the air and away from officer Pehl. Officer Pehl then put hand
    cuffs on Appellant, guided Appellant to the hood of Marnique’s car and then
    8
    escorted Appellant off camera. (State’s Exhibit 3, 8:30- 11:30). Marique
    testified that the officers found Appellant’s Social Security Card and driver’s
    license. (RR Vol. 9. 81).
    9
    SUMMARY OF THE ARGUMENT
    Issue One:     The evidence is legally insufficient to prove beyond
    reasonable doubt, that Curry committed Resisting Arrest
    The evidence presented at trial could not have led a rational trial
    court to find that Curry acted with a conscious objective or desire to
    intentionally prevented or obstructed a peace officer or person acting in a
    peace officers’ presence and at his direction from effecting an arrest,
    search of Appellant by using force against the peace officer or another, or
    that he was aware that her conduct was reasonably certain to cause that
    result.
    Concluding so, based on the evidence presented at trial, would have
    been speculation or suspicion by the factfinder. Thus, the evidence is
    legally insufficient to convict Curry in this case.
    10
    ARGUMENT
    Issue One: The evidence is legally insufficient to support
    the conviction of Appellant
    In a criminal case, an appellant may raise legal sufficiency for the first
    time on appeal. Washington v. State 
    127 S.W.3d 197
    (Tex. App. Houston
    [1st Dist.] 2003, pet. dism’d). When reviewing legal sufficiency of the
    evidence, a court must look at all of the evidence in the light most favorable
    to the verdict to determine whether any rational trier of fact could have
    found the essential elements of the offense were proven beyond a
    reasonable doubt. Jackson v. Virginia, 
    443 U.S. 307
    , 319; Vodochodsky v.
    State, 
    158 S.W.3d 502
    , (Tex. Crim. App. 2005). While giving the proper
    deference to the factfinder’s role this court must safeguard against the rare
    occurrence when a factfinder does not act rationally. Laster v. State, 
    275 S.W.3d 512
    (Tex. Crim. App. 2009).
    In this case Appellant was charged with Resisting Arrest. (CR Vol.
    1pps 16, & 17). To support a conviction of the appellant, the State must
    prove beyond a reasonable doubt that Appellant intentionally prevented or
    obstructed a person he knows is a peace officer or person acting in a
    peace officers’ presence and at his direction from effecting an arrest,
    search or transportation of the actor or another by using force against the
    11
    peace officer or another. TEX. PEN. CODE ANN. §38.03(a) (Casemaker
    2014).
    In reviewing the sufficiency of the evidence, courts should look at
    “events occurring before, during and after the commission of the offense
    and may rely on actions of the defendant which show an understanding
    and common design to do the prohibited act.” Cordova v. State, 
    698 S.W.2d 107
    , 111 (Tex. Crim. App. 1985). Each fact need not point directly
    and independently to the guilt of the appellant, as long as the cumulative
    force of all the incriminating circumstances is sufficient to support the
    conviction. See Johnson v. State, 
    871 S.W.2d 183
    , 186 (Tex. Crim. App.
    1993) (“[i]t is not necessary that every fact point directly and independently
    to the defendant’s guilt; it is enough if the conclusion is warranted by the
    combined and cumulative force of all the incriminating circumstances.”);
    Barnes v. State, 
    876 S.W.2d 316
    , 321 (Tex. Crim. App. 1994).; Alexander
    v. State, 
    740 S.W.2d 749
    , 758 (Tex. Crim. App. 1987).
    [C]ourts of appeal should adhere to the Jackson standard and
    determine whether the necessary inferences are reasonable based upon
    the combined and cumulative force of all the evidence when viewed in the
    light most favorable to the verdict. Hooper v. State, 
    214 S.W.3d 9
    , 13, 15-
    17 (Tex. Crim. App. 2007).
    12
    This Court examined sufficiency of the evidence in resisting
    arrest in Pumphrey v. State. Pumphrey v. State, 
    245 S.W.3d 85
    (Tex.
    App. Texarkana 2008). Yet, the facts in this case do not demonstrate near
    the same level of conduct by the defendant in Pumphrey or the cases cited
    and rejected therein.
    In Pumphrey, evidence brought at trial demonstrated that the
    defendant Pumphrey, while waiting to enter a dance at her university, got
    into a verbal confrontation with a campus police officer 
    Id. at 87.
    The
    officer in that case then grasped the defendant and attempted to take
    Pumphrey into custody for disorderly conduct. Pumphery jerked, squirmed,
    twisted, turned and struggled all against the efforts of the campus police
    officer’s efforts to physically restrain her in the process of making the
    arrest. 
    Id. at 92.
    This Court found that those actions sufficiently supported
    Pumphery’s conviction. 
    Id. The video
    in this case depicts officer Pehl approaching Appellant and
    then using his Taser within seconds. The video further depicts Appellant
    submitting to the direction of the officer without any clear display of force in
    any direction opposite to the Officer. (State’s Exhibit 3). Applying Cardova
    cited above, courts must look at events occurring before, during and after
    the commission of the offence. When Cardova is applied, Curry did not
    13
    resist the arrest. In the context of these earlier actions of Curry contrasted
    against cases such as Pumphery, this case does not elevate to resisting
    arrest.
    This Court rejected reasoning by other Courts that made a distinction
    force or lack of force directed at the arresting officer. 
    Id. at 91.
    However,
    this case is more like the facts in Sheehan v. State, 
    201 S.W.3d 820
    (Tex.
    App. Waco 2006, no pet.) which is not overtly rejected but cited in a
    footnote of Pumphery. Pumphery at n.4. In Sheehan, the officers
    approached the defendant in that case and informed him he needed to go
    with them. When the officer in that case went to reach for the defendant’s
    left arm, the defendant stood up and pulled his hands into his chest and
    leaned away. The officers then grabbed him, brought him to the ground,
    then got his hands behind his back, handcuffed him and walked him
    outside. 
    Id. at 821.
    Just like here, the physical contact in Pehl was so brief and limited
    that it cannot sustain a conviction from resisting arrest. At no point before
    Officer Pehl Tased Appellant and removed him from the car does Pehl or
    other officer definitively indicate that Appellant is under arrest.
    Even giving full play to the responsibility of the fact finder to fairly
    resolve conflicts in testimony, to weigh the evidence, and to draw
    14
    reasonable differences from basic facts to ultimate fact no rational fact
    finder could have found that Curry effected resistance to the arrest.
    Here, the officer already had the Appellant in his grasp with no clear
    opposing movement and in seconds the officer had brought to the
    Appellant to the exterior of the vehicle and handcuffed him. Evidence
    shows that at the end of the encounter Curry was moved off camera. There
    is no other indication from the evidence at trial that after Curry was
    handcuffed there was need for further restraint to prevent flight. (State’s
    Exhibit 3). Again looking to the actions or events before, during and after
    the commission of the offence the facts do not amount to resisting arrest.
    Therefore the evidence brought at trial was insufficient and Curry’s
    conviction should be overturned.
    Appellant Lacked The Necessary Intent
    Additionally, the state must prove that Appellant acted with a
    conscious objective or desire to cause the result, or that he was aware that
    his conduct was reasonably certain to cause the result. Tex. Penal Code
    Ann. § 6.03(a) & (b) (West 2011).
    It is just as rational, if not more rational, that Appellants physical
    actions were the result of the electrocution he suffered at the hands of
    Officer Pehl’s Taser when he grabbed the steering wheel of the car.
    15
    Proof that amounts to only a strong suspicion of guilt or a mere
    probability of guilt is insufficient to sustain a conviction. Urbano v. State,
    
    837 S.W.2d 114
    , 116 (Tex.Crim.App. 1992); Navarro v.State, 
    810 S.W.2d 432
    , 435 (Tex. App.—San Antonio 1991, pet. refd).
    It is the function of appellate courts to ensure that no one is convicted
    of a crime except upon proof beyond a reasonable doubt. Shelton v. State,
    
    795 S.W.2d 162
    , 167 (Tex.Crim.App.1989). Due process requires no less.
    Reedy v. State, 
    214 S.W.3d 567
    (Tex. App.—Austin 2006).
    In this case the trial court could only form a suspicion that Appellant
    intended resist arrest when there was no clear indication to Appellant at the
    time just before he was Tased, the officers were about to arrest him.
    The State did not prove beyond a reasonable doubt that Appellant
    acted with a conscious objective or desire to resist arrest, or that he was
    aware that his conduct was reasonably certain to cause the result in this
    case.
    16
    PRAYER FOR RELIEF
    Wherefore, premises considered, Appellant respectfully prays that his
    conviction in the above entitled and numbered cause be reversed and
    acquit him. Appellant further prays for all other lawful relief to which he
    may be entitled, at law or in equity.
    Respectfully submitted,
    _____/s/ Jason A. Duff____
    Jason A. Duff
    State Bar No. 24059696
    2615 Lee Street
    P.O. Box 11
    Greenville, TX 75403-0011
    jasonaduff@hotmail.com
    Attorney for the Appellant
    17
    CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
    In accordance with Texas Rules of Appellate Procedure 9.4 (e) and
    (i), the undersigned attorney or record certifies that Appellants Brief
    contains 14-point typeface of the body of the brief, 12-point typeface for
    footnotes in the brief and contains 1,661words, excluding those words
    identified as not being counted in appellate rule of procedure 9.4(i)(1), and
    was prepared on Microsoft Word 2010.
    _____/s/ Jason A. Duff____
    Jason A. Duff
    Attorney for the Appellant
    18
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the above and
    foregoing instrument was forwarded to Collin County District Attorney’s
    Office, on this the 20th day of January, 2015 and to the Court of Appeals in
    Texarkana via , by electronic delivery.
    _____/s/ Jason A. Duff____
    Jason A. Duff
    Attorney for the Appellant
    19