Fred Douglas Moore, Jr. v. State

ACCEPTED
06-15-00082-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
7/30/2015 10:39:48 PM
DEBBIE AUTREY
CLERK
CASE NO. 06-15-00082 CR
In The RECEIVED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
COURT OF APPEALS
7/31/2015 9:05:00 AM
SIXTH DISTRICT OF TEXAS
DEBBIE AUTREY
AT TEXARKANA Clerk
________________________________________________________________________
FRED DOUGLAS MOORE, JR., Appellant
VS.
07/31/2015
THE STATE OF TEXAS, Appellee
On Appeal from 196th Judicial District Court
of Hunt County, Texas
Trial Court Cause No. 29,762
Honorable J. Andrew Bench, 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. 06-15-00082
Oral Arguments Requested
IDENTITY OF PARTIES AND COUNSEL
Appellant's Attoreny:
Jessica Edwards
P.O. Box 9318
Greenville, TX 75404
Appellant's Attorney at Trial:
Katherine Ferguson
2900 Lee Street #102
Greenville, TX 75401
Appelle:
The State of Texas by and through
Noble D. Walker
Hunt County District Attorney
4th Floor Hunt County Courthouse
2507 Lee Street
Greenville, TX 75401
Appellee's Attorney at Trial:
Jeffery Kovach
Assistant Hunt County Attorney's
4th Floor Hunt County Courthouse
2507 Lee Street
Greenville, TX 75401
TABLE OF CONTENTS
Identity of Parties and Counsel 2
Table of Contents 3
Index of Authorities 7
Statement of the Case 7
Issues Presented 7
Statement of Facts 7
Point of Error Number One 10
Point of Error Number Two 15
Point of Error Number Three 19
Prayer for Relief 21
Certificate of Service 22
Certificate of Compliance 22
LIST OF AUTHORITIES
Case Authority Page(s)
Federal Cases
California v. Green, 399 U.S. 149 (1970) 10
Davis v. Alaska, 415 U.S. 305 (1974) 10
DePetris v. Kuykendall, 239 F.3d 1057, (9th Cir. 2001) 13
Jackson v. Virginia, 443 U.S. 307 (979) 20
Pointer v. Texas 380 U.S. 400 (1965) 10
U.S. v. Lopez, 970 F.2d 583 (1992) 13
Washington v. State, 388 U.S. 14; 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) 12
State Cases
Campbell v. State, 571 S.W.2d 161 (Tex. Crim. App. 1978) 17
Easterling v. State, 710 S.W.2d 569 (Tex. Crim. App. 1986) 11
Ex parte Amador, 326 S.W.3d 202 (Tex. Crim. App. 2010) 16
Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009) 16
Goad v. State, 354 S.W.3d 443 (Tex. Crim. App. 2011) 16
Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981) 17
Gutierrez v. State, 764 S.W.2d 796 (Tex. Crim. App. 1989) 10
Guzman v. State, 188 S.W.3d 185 (Tex. Crim. App. 2006) 16
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) 16
Hayward v. State, 158 S.W.3d 476 (Tex. Crim. App. 2005) 16
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) 20
McKithan v. State, 324 S.W.3d 582 (Tex. Crim. App. 2010) 16
Moody v. State, 827 S.W.2d 875 (Tex. Crim. App. 1992) 12
Parr v. State, 658 S.W.2d 620 (Tex. Crim. App. 1983) 17
Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002) 12
Rice v. State, 333 S.W.3d 140, 146 (Tex. Crim. App. 2011) 16
Ransom v. State, 789 S.W.2d 572 (Tex. Crim. App. 1989) 11
Rousseau v. State, 855 S.W.2d 666 (Tex.Crim. App. 1993) 15, 16
Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981) 16
Salinas v. State, 163 S.W.3d 734 (Tex. Crim. App. 2005) 16
Saunders v. State, 840 S.W.2d 390 (Tex. Crim. App. 1992) 17
Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008) 16
Virts v. State, 739 S.W.2d 25 (Tex. Crim. App. 1984) 10
Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005) 20
Washington v. State, 127 S.W.3d 197 (Tex. App. Houston [1st Dist. ] 2003) 20
Constitutional Provisions
U.S. CONST., AMEND IV 10
Statute and Rules
Tex.R. of App. Pro. 44.2(a) 12
Tex. Code Crim. Pro. Article 37.09 15, 16
Tex. R. Evid. 608(a) 11
Tex. R. Evid. 608(b) 11
TEX. R. EVID. 610(b) 11
Tex. Penal Code. Sec. 29.02 17
STATEMENT OF THE CASE
This is an appeal of judgment and sentence in a criminal case from the 196th
Judicial District Court in Hunt County, Texas. Appellant was convicted by a jury of
Robbery on April 21, 2015. On April 22, 2015, the jury assessed Appellant's punishment
at 12 years in the Texas Department of Criminal Justice, Institutional Division.
ISSUES PRESENTED
Point of Error No. 1:
The court erred by not allowing Appellant to cross-examine the State's
complaining witness with regard to the said witnesses history of allowing people
to steal from the store while on duty and for not allowing evidence about said
witness' truthfulness. Said error was so egregious as to violated Appellant's
sixth amendment right to confront his accusers and his due process of law.
Point of Error No. 2:
The court erred in failing to give a jury instruction on the requested lesser included
offense as said charge was raised by the evidence and it was a valid rational
alternative to the offense charged.
Point of Error No. 3:
The evidence is legally insufficient to prove Appellant guilty of Robbery.
STATEMENT OF FACTS
On March 16, 2014, Andres Hernandez was working as a clerk at Mr. J's Food
Store in Greenville, TX. (R.R. 3, p. 20). Mr. Hernandez identified Appellant as a
customer of Mr. J's who had been to the store on multiple occasions. (R.R. 3, p. 21). Mr.
Hernandez stated that Appellant came in to Mr. J's on March 16, was identifying himself
as Jesus Christ and speaking in a Jamaican accent. (R.R. 3, p. 27). Mr. Hernandez said he
found Appellant's behavior belligerent and Mr. Hernandez tired to get Appellant to leave
the store. (R.R. 3, p. 27-28). At some point during the interaction, Appellant and Mr.
Hernandez shook hands and Appellant headed to the door. (R.R. 3, p. 28). Mr.
Hernandez testified that, as Appellant shook his hand, Appellant reached under the
counter. (R.R. 3, p. 28). When asked by the State what what Appellant took when he
reached under the counter, Mr. Hernandez replied, “He grabbed I believe it was forty
dollars.” (R.R. 3. p. 28).
The State introduced State's Exhibit 1, the video surveillance footage from Mr. J's
of the incident in question. A review of State's Exhibit 1 does not support the testimony
provided by by Mr. Hernandez as the video does not reflect the person identified as
Appellant reaching under the counter as Mr. Hernandez shook his hand as described in
Mr. Hernandez's testimony.
Mr. Hernandez testified the next thing he did was attempt to go for his baseball
bat, but he was unable to reach it. (R.R. 3, p. 29). Mr. Hernandez testified that he then
picked up the phone and told Appellant that he was calling the police, at which, according
to Mr. Hernandez, Appellant reached for the money, Mr. Hernandez tried to grab
Appellant, and then Appellant ran off with forty dollars. (R.R. 3, p. 29). When asked by
the State whether he was hurt during the interaction, Mr. Hernandez testified “on my shin
and on my arm.” (R.R. 3 p. 29).
Mr. Hernandez testified during the interaction, Appellant never threatened him and
that he never felt threatened by Appellant (R.R. 3. p. 38-39). Mr. Hernandez further
testified that Appellant did not make any aggressive moves towards him and that he, Mr.
Hernandez, was the one to make physical contact in the interaction. (R.R. 3 p. 43).
According to Mr. Hernandez, at no time during the interaction did Appellant try to hit,
kick or any any other way physically harm Mr. Hernandez. (R.R. 3, p. 43). On cross-
examination by Appellant's trial counsel, Mr. Hernandez testified that there would not
have been any physical contact had Mr. Hernandez not grabbed appellant. (R.R. 3, p. 44-
45).
Trial attorney for Appellant attempted to ask questions of Mr. Hernandez,
regarding the reasons for him being released from employment at Mr. J's, which drew an
objection from the State. (R.R. 3, p. 32). The Court then had a hearing outside the
presence of the jury in which Appellant's trial counsel questioned Mr. Hernandez about
the reasons for him being discharged from his employment, and his interactions with
customers during the course of his duties, specifically whether he had allowed customers
to steal from Mr. J's in the course of his job. (R.R. 3, p. 34-36). The Court refused to
allow Appellant to present the proffered testimony in front of the jury. (R.R. 3, p. 36).
Appellant's trial attorney also attempted to ask questions of Jasmeet Sachdeva, the
owner of Mr. J's Food Store and Andres Hernandez's employer at the time of the incident,
as to the facts surrounding Mr. Hernandez's separation from Mr. J's Food Store in a
hearing outside the presence of the jury. (R.R. 3, p. 116). Appellant's attorney put
evidence on the record that Mr. Hernandez, while in the course of his normal duties of
employment, had allowed persons to steal from the store prior to the incident at bar.
(R.R. 3, p. 117-118). Appellant's attorney put testimony on the record show that Mr.
Hernandez had himself been stealing from his employer and that he was a dishonest and
untrustworthy person. (R.R. 3 p. 118-119). The court ruled that said testimony was
inadmissible and did not allow Appellant to present this evidence to the jury. (R. R. 3, p.
120-121).
POINT OF ERROR NUMBER ONE
The Sixth Amendment of the United States Constitution guarantees every person
accused of a crime the right to confront their accusers. The Court of Criminal Appeals
has “often stated and discussed the fact that one of the greatest constitutional rights that
an accused person might have is the right to confront and cross-examine the State's
witnesses.” Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1984). “It cannot seriously
be doubted at this late date that the right of cross-examination is included in the right of
an accused in a criminal case to confront the witnesses against him. And probably no
one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-
examination in exposing falsehood and bringing out the truth in the trial of a criminal
case.” Pointer v. Texas 380 U.S. 400, 404 (1965).
Courts across the Nation have held repeatedly that cross-examination is an
indispensable tool in seeing that justice is done. Cross-examination is the “greatest legal
engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158
(1970). “Cross-examination is the principle means by which the believably of a witness
and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 305, 316 (1974).
“Cross-examination is the cornerstone of the criminal trial process and, as such, a
defendant must be given wide latitude to explore a witness' story, to test the witness'
perceptions and memory, and to impeach his or her credibility.” Gutierrez v. State, 764
S.W.2d 796,799 (Tex. Crim. App. 1989).
When a defendant complains that his cross-examination of a witnesses has been
improperly limited by the court, the defendant must preserve said error by creating a bill
of exception including the questions he would ask and the answers to said questions.
Easterling v. State, 710 S.W.2d 569. 578 (Tex. Crim. App. 1986).
The Texas Rules of Evidence outline the methods by which cross-examination is
conducted. Texas Rule of Evidence 610(b) provides that a witness may be cross-
examined on any matter relevant to any issue, including credibility. To impeach a
witness, a Defendant may produces proof that a witness is unworthy of belief or
credibility. Ransom v. State, 789 S.W.2d 572, 587 (Tex. Crim. App. 1989) cert. Denied.
“The credibility of a witness may be attacked or supported by evidence in the form
of opinion or reputation, but subject to these limitations: (1) the evidence may refer only
to the character for truthfulness or untruthfulness, and (2) evidence of truthful character is
admissible only after the character of the witness for truthfulness has been attacked by
opinion or reputation evidence or otherwise,” Tex. R. Evid. 608(a). Texas Rule of
Evidence 608(b) goes on to say that “ specific instances of conduct of a witness, for the
purpose of attacking or supporting his credibility, other than convictions of a crime as
provided in Rule 609, may not be inquired into on cross-examination of the witness, nor
proved by extrinsic evidence.”
Rule 608(b) is very restrictive and allows for no exceptions, nevertheless,
constitutional considerations must be kept in mind when evaluating the application of this
rule. Specifically, the constitutional right to confront one's accuser must include the right
to expose bias, prejudice, motivation for testifying and the credibility of the accuser. In
Moody v. State, 827 S.W.2d 875 (Tex. Crim. App. 1992) the Court held that Rule 608(b)
could not be applied so as to strip a defendant of his constitutional right to confront his
accuser.
There is precedent at the highest level of our state and federal courts for the fact
that a error in excluding evidence based on a rule of evidence may rise to the level of
denial of a constitutional right. See Potier v. State, 68 S.W.3d 657 (Tex. Crim. App.
2002) where the Texas Court of Criminal Appeals recites a list of United States Supreme
Court cases in which errors in rulings based on exclusionary rules of evidence resulted in
constitutional errors. The litany of cases in Potier stands for the proposition that, while
the State can create rules to guide the admission of evidence, said rules cannot go so far
as to interfere with a defendant's constitutional rights. The Supreme Court of the United
States has held that the Framers of the Constitution did not intend to commit the futile act
of giving to a defendant the rights to secure the attendance of witnesses whose testimony
he had no right to use. Washington v. State, 388 U.S. 14, 23; 87 S. Ct. 1920, 18 L. Ed. 2d
1019 (1967). It is clear that rules of evidence that are applied disproportionately to their
purpose may offend the Constitution. Pointer at 622.
Standard of Review
Texas Rule of Appellate Procedure 44.2(a) states; “If the appellate record in a
criminal case reveals constitutional error that is subject to harmless error review, the court
of appeals must reverse a judgment of conviction or punishment unless the court
determines beyond a reasonable doubt that the error did not contribute to the conviction
or punishment.”
While it is true that erroneous evidentiary rulings rarely rise to the level of denying
the fundamental constitutional rights, such a ruling can rise to that level if the defendant
can demonstrate that the evidence excluded was important to his defense. U.S. v. Lopez,
970 F.2d 583, 588 (1992). While courts have dealt with whether the exclusion of
evidence rises to the level of constitutional error in different ways, Courts have
repeatedly held that if evidence was crucial to a defendant's ability to defend himself
against the charge, the the exclusion of such evidence violates the defendant's
constitutional right to due process of law. DePetris v. Kuykendall, 239 F.3d 1057, 1062-
1063 (9th Cir. 2001).
Argument
The case at bar does not concern some distant or remote bad act that was proffered
to impeach the accuser's credibility. Instead, we have facts and circumstances that are
intertwined with and related to the facts used by the State to convict Appellant. Whether
or not the victim alleged in the indictment had allowed Appellant or others to take things
from the store prior to this incident is wholly relevant to the issue of consent. By denying
Appellant the right to present such evidence, the trial court denied Appellant the right to
present his defense, which raises the error to the level of a constitutional violation.
The testimony from Jasmeet Sachdeva , the owner of the store in Appellant's bill
of exception indicates that Mr. Hernandez, the victim and sole eyewitness to the robbery,
had allowed multiple individuals to take items from Mr. J's food store. (R.R. 3, 9. 116-
119). By not allowing the testimony before the jury, the trial court stripped from
Appellant his ability to argue that the taking of items, if any, from the store was a result of
the the implied consent of Mr. Hernandez as he had allowed such things to happen in the
past. This evidence could reasonably have had a great deal of impact on the jury and
could have caused a reasonable fact-finder to have come to a different conclusion.
Additionally, Andres Hernandez was the sole eye witness to the offense. The jury
had to believe Mr. Hernandez that Appellant caused him pain to find the elements
required for robbery. As Mr. Hernandez was the alleged victim and the sole witness to
the issue of whether or not he experienced pain at the hands of Appellant during the
interaction, Mr. Hernandez's credibility is of utmost importance. The fact that he is
known to be a dishonest person was clearly information that would have impacted the
jury. In the testimony of Mr. Sachdeva in Appellant's bill of exception, evidence was
presented in regards to Mr. Hernandez's credibility as an honest person. (R.R. 3, p. 116-
119). Again, these are not abstract, remote or irrelevant fact situations upon which this
evidence is based. These are facts and circumstances that are clearly relevant to the
interactions between Appellant and Mr. Hernandez on the night in question.
By refusing to allow Appellant to present said evidence, the court ham-strung
Defense counsel's ability to adequately and thoroughly cross-exam Mr. Hernandez and
Mr. Sachdeva. Indeed, the court's error in preventing said testimony from being
presented denied Appellant of his 6th Amendment right to confront his accusers and
essentially denied him of his 5th Amendment right to effective representation of counsel
by denying trial counsel multiple avenues of questioning and argument including consent
and the credibility of the primary accuser. There error is clearly harmful to Appellant as
this information would no doubt have had an impact on a rational jury and very certainly
would have resulted in a different outcome.
While not every error in excluding evidence rises to the level of constitutional
error, it is clear from the record that this evidence was vital to Appellant's defense. The
evidence was so crucial to Appellant's defense that Appellant's trial counsel made two
separate bills of exception to preserve said evidence to show its importance. The trial
court's exclusion of the proffered evidence was not merely an evidentiary error, but one of
constitutional dimensions. The ruling went to the heart of the defense and prevented
Appellant from arguing his defense of implied consent and additionally prevented him
from showing the lack of credibility of the State's star witness.
POINT OF ERROR NUMBER TWO
The court erred in failing to give a jury instruction on the lesser included offense
as it said charge was raised by the evidence and it was a valid rational alternative
to the offense charged.
The Law
Article 37.09 of the Texas Code of Criminal Procedure defines a lesser included
offense as being established if “it is established by proof of the same or less than all the
facts required to establish the commission of the offense charged.” To determine whether
the lesser-included offense instruction requested by appellant should have been given, the
Court follows a two-step analysis. Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex.
Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981). The
first step asks whether the lesser-included offense is included within the proof necessary
to establish the offense charged. McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim.
App. 2010). Courts will then compare the statutory elements and any descriptive
averments in the indictment for the greater offense with the statutory elements of the
lesser-included offense. Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex. Crim. App.
2010); Ex parte Watson, 306 S.W.3d 259, 263 (Tex. Crim. App. 2009); Hall v. State, 225
S.W.3d 524, 535–36 (Tex. Crim. App. 2007); see also Tex. Code Crim. Prl, art. 37.09.
This step is a question of law. Hall, 225 S.W.3d at 53.
In the second step of the analysis, the Court considers whether evidence in the
record would permit a jury to rationally find appellant was guilty of only the lessor
included and not the original charge in the indictment. Guzman v. State, 188 S.W.3d 185,
188–89 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.
2005). The evidence must establish the lesser-included offense as “a valid rational
alternative to the charged offense.” Segundo v. State, 270 S.W.3d 79, 91 (Tex. Crim. App.
2008); see also Rice v. State, 333 S.W.3d 140, 146 (Tex. Crim. App. 2011).
In this review, Appellate Courts consider all of the evidence presented at trial.
Hayward v. State, 158 S.W.3d 476, 478–79 (Tex. Crim. App. 2005); Rousseau, 855
S.W.2d at 673. Anything more than a scintilla of evidence is sufficient to entitle a
defendant to a lesser-included offense charge. Goad v. State, 354 S.W.3d 443, 446 (Tex.
Crim. App. 2011). In determining whether the evidence raises the requested lesser-
included offense, Courts do not consider the credibility of the evidence or whether it
conflicts with other evidence. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App.
1992).
Argument
An analysis of the elements makes it clear that theft of property is a lesser-included
offense of Robbery. Additionally, the Court of Criminal Appeals has held such numerous
times. Campbell v. State, 571 S.W.2d 161 (Tex. Crim. App. 1978); Griffin v. State, 614
S.W.2d 155 (Tex. Crim. App. 1981); Parr v. State, 658 S.W.2d 620 (Tex. Crim. App.
1983). The first prong of the test being satisfied, we must now turn our attention to the
second prong to determine if the evidence establishes that the lesser-included is a valid
rational alternative to the charged offense.
The evidence clearly shows that, if an offense was committed at all, the offense
was theft and not robbery. There is no evidence whatsoever in the record to show that
Appellant caused any injury to the alleged victim during the course of the interaction that
lead to Appellant's indictment and conviction.
Texas Penal Code Section 29.02 defines robbery as an offense if “in the course of
committing theft....and with intent to obtain or maintain control of the property he; 1)
intentionally, knowingly or recklessly causes bodily injury to another; or 2) intentionally
or knowingly threatens or places another in fear of imminent bodily injury or death.” The
record is unequivocal, based on the alleged victim's own testimony, that Appellant did not
make any threats or put the alleged victim in imminent fear. (R.R. 3 p. 38-39).
Additionally, the evidence is devoid of any evidence that Appellant intentionally,
knowingly or recklessly caused any bodily injury to Andres Hernandez. The testimony
from Mr. Hernandez, the victim alleged in the indictment, is that Appellant never hit,
kicked or in any other way physically harm to the victim and that the victim started the
physical interaction. (R.R. 3, p. 43). The description of the encounter from Hernandez
was that he, Mr. Hernandez, “went to grab him. And he (Appellant) ran off with $40.”
(R.R. 3, p. 29). When asked by the State “Did you get hurt at all during this?” Mr.
Hernandez replied, “On my shin and on my arm.” (R.R. 3, p. 29). Mr. Hernandez never
states that Appellant was the cause of said injury to his shin and his arm. The injury to
Mr. Hernandez's shin and arm could have just as reasonably been caused by Mr.
Hernandez's own actions given the testimony that he was the person who made the first
physical contact. (R.R. 3, p. 43). The evidence is woefully inadequate to support a
finding that Appellant intentionally, knowingly or recklessly caused bodily injury to Mr.
Hernandez.
A review of the video tape of the incident, State's Exhibit 1, is equally devoid of
evidence to support the State's argument that Appellant intentionally, knowingly or
recklessly caused bodily injury to Mr. Hernandez. A review of State's Exhibit 1 reveals
the person identified as Appellant coming into the camera frame at 17 minutes and 25
seconds into the video. Mr. Hernandez and the person identified as Appellant have a
conversation until 18 minutes and 25 seconds into the video, when the person identified
as Appellant walks out of the camera frame. The person identified as Appellant reappears
in the camera frame at 19 minutes and 19 seconds into the video, has a brief conversation
with Mr. Hernandez, and exits the video frame at 19 minutes and 33 seconds into the
video. The person identified as Appellant reappears at 21 minutes and 52 seconds into
the video, at which time we observe the interaction that is the core of the State's charge
against Appellant. A careful review of State's Exhibit 1 shows that, just as Mr.
Hernandez testified, (R.R. 3 p. 43), the person identified as Appellant never hits, kicks or
in any other way attempts to physically harm Mr. Hernandez. State's Exhibit 1 shows the
person identified as Appellant reach under the counter, at which time Mr. Hernandez
grabs the person identified as Appellant and puts his arms around him. The video shows
the person identified as Appellant attempt to pull his body away from Mr. Hernandez and
flee from the store. The video in State's Exhibit 1 reflects aggressive actions on the part
of Mr. Hernandez, but no such aggressive actions on the part of the person identified as
Appellant. State's Exhibit 1 supports the alternative
Given the evidence introduced at trial, the denied lesser-included office is a valid
rational alternative to the charged offense. It was error for the trial court to deny the
lessor included charge to the jury.
POINT OF ERROR NUMBER THREE
The evidence is legally insufficient to find Appellant guilty of Robbery.
The Law
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 safegauard against the rare occurrence when a factfinder
does not act rationally. Laster v. State, 275 S.W. 3D 512 (Tex. Crim. App. 2009).
Argument
As argued in Point of Error number two, the evidence in the record is insufficient
to prove Appellant harmed Andres Hernandez during the course of committing theft. As
argued above, the record is unequivocal, based on the alleged victim's own testimony, that
Appellant did not make any threats or put the alleged victim in imminent fear. (R.R. 3 p.
38-39). Additionally, the evidence is devoid of any evidence that Appellant intentionally,
knowingly or recklessly caused any bodily injury to Andres Hernandez. The testimony
from Mr. Hernandez, the victim alleged in the indictment, is that Appellant never hit,
kicked or in any other way physically harm to the victim and that the victim started the
physical interaction. (R.R. 3, p. 43). The description of the encounter from Hernandez
was that he, Mr. Hernandez, “went to grab him. And he (Appellant) ran off with $40.”
(R.R. 3, p. 29). When asked by the State “Did you get hurt at all during this?” Mr.
Hernandez replied, “On my shin and on my arm.” (R.R. 3, p. 29). Mr. Hernandez never
states that Appellant was the cause of said injury to his shin and his arm. The injury to
Mr. Hernandez's shin and arm could have just as reasonably been caused by Mr.
Hernandez's own actions given the testimony that he was the person who made the first
physical contact. (R.R. 3, p. 43). The evidence is woefully inadequate to support a
finding that Appellant intentionally, knowingly or recklessly injured Mr. Hernandez.
It is clear from the record that no rational trier of fact could have found the
essential elements of the offense were proven beyond a reasonable doubt.
PRAYER FOR RELIEF
For the reasons stated hereinabove, it is respectfully submitted that, upon appellate
review, the Court of Appeals should affirm the judgment of conviction and sentence of
the Trial Court.
Respectfully submitted,
/s/ Jessica Edwards
JESSICA EDWARDS
Attorney for Appellant
Fred Douglas Moore, Jr.
State Bar Number - 24000994
P.O. Box 9318
Greenville, Texas 75404
Telephone Number - (903) 513-0510
Facsimile Number - (903) 200-1359
jessicaedwardslaw@gmail.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant's Brief was served on the Hunt
County District Attorney's Office through the efiletexas website on July 31, 2015.
/s/ Jessica Edwards
Jessica Edwards
CERTIFICATE OF SERVICE
I certify that a true and correct copy of Appellant's Brief was delivered to
Appellant via certified mail to the Cole Unit; TDCJ-ID on July 31, 2015.
/s/ Jessica Edwards
Jessica Edwards
CERTIFICATE OF COMPLIANCE
I certify that Appellant's Brief is written in Times New Roman font in 13 point
text. Appellant's brief has 4860 works according to the word count feature on the
undersigned attorneys word processing program.
/s/ Jessica Edwards
Jessica Edwards