PD-0052-15
COURT OF CRIMINAL APPEALS AUSTIN, TEXAS
Transmitted 2/6/2015 3:10:29 PM Accepted 2/6/2015 4:11:57 PM ABEL ACOSTA
CLERK
NO. 0052-15
IN THE COURT OF CRIMINAL APPEALS
__________________________________________________________________
JULIA RHOTON ANDREWS, Petitioner v.
THE STATE OF TEXAS, Respondent
________________________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
________________________________________________________________________
FROM THE COURT OF APPEALS, NINTH JUDICIAL DISTRICT NO. 09-13-00407-CR
FROM THE DISTRICT COURT OF ORANGE COUNTY 260TH JUDICIAL DISTRICT ; Cause No. D-130,174-R THE HONORABLE BUDDIE J. HAHN PRESIDING
CHRISTINE R. BROWN-ZETO
Texas Bar No. 03102200
Attorney at Law
1107 Green Avenue
February 6, 2015 Orange, TX 77630 (409) 886-8558 - Phone
(409) 883-6523 - Fax
crbrown@exp.net
AttorneyforPetitioner
O RAL A RGUMENT R EQUESTED
IDENTITY OF PARTIES AND COUNSEL
Petitioner: JULIA RHOTON ANDREWS
Trial Counsel: Greg Dumas 1601 Main St.
Orange, TX 77630
State Bar No.06201080
Appellate Counsel: Denise I. Gremillion 202 S. Border St.
Orange, TX 77630
State Bar No. 24041974
Christine R. Brown-Zeto
1107 Green Avenue
Orange, TX 77630
State Bar No. 03102200
Respondent: State of Texas
Counsel: Cory Kneeland (Trial and Appeal) Orange County Assistant District Attorney 801 W Division Ave.
Orange, TX 77630
State Bar No. 24041264
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TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Table of Contents ii Index of Authorities iii Statement of the Nature and Result of the Case 1 Request for Oral Argument 2 Statement and Procedural History in the Case 2 Grounds for Review 3
Error 1: The evidence was legally and factually insufficient for the jury to rationally find beyond a reasonable doubt that Petitioner acted with the intent to cause Peddy's death or serious bodily injury to him . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Statement of Facts 3 Summary of the Argument 7 Prayer for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Certificate of Compliance 13 Certificate of Service 13 Appendix 14
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Index of Authorities
Cases Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012) 12 Brooks v. State,323 S.W.3d 893 (Tex. Crim. App. 2010) 8 Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) 8 Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001) 10 Foster v. State, 639 S.W.2d 691 (Tex. Crim. App. 1982) 10 Gonzalez v. State, 337 S.W.3d at 479 (Tex. Crim. App. ) . . . . . . . . . . . . . 11 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) 8,9,10 Turner v. State, 805 S.W.2d 423 (Tex. Crim. App. 1991) 10 Statutes TEX. PEN.CODE ANN. § 19.02(b) 9 TEX. PEN.CODE ANN. § 19.04 9 TEX. PEN.CODE ANN. § 6.03(c) 9
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STATEMENT OF THE NATURE AND RESULTS OF THE CASE On March 13, 2013, Petitioner was charged by indictment with the first degree felony offense of Murder. (C.R. 5). The Indictment originally charged that Petitioner, on or about November 28, 2012, did then and there intentionally and knowingly cause the death of an individual, Randy Peddy, by shooting the said Randy Peddy with a firearm.(C.R. 5). On July 29, 2013, the Indictment was amended by the State without objection to add a second paragraph alleging that Petitioner, with intent to cause serious bodily injury to Randy Peddy, did then and there commit an act clearly dangerous to human life that caused the death of said Randy Peddy, by shooting Randy Peddy with a firearm. (C.R. 36, 56).
Voir dire was conducted on August05, 2013, and a jury was sworn. (3 R.R. 7-
74). Petitioner entered a plea of not guilty to the allegations in the indictment, and the case was tried to the jury. (4 R.R. 6).
After three days of trial, the charge of the court was presented to the jury; the charge permitted the jury to consider both the murder charge and the lesser-included offense of manslaughter. After deliberating, the jury found Petitioner guilty of Murder. (8 R.R. 21-22). The jury assessed punishment at forty-four years confinement in State Jail and a $4,400.00 fine. (8 R.R. 22). On August 8, 2013, the
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trial court entered a Judgment of Conviction by Jury in conformity with the jury’s verdict. (C.R. 59).
Petitioner requests oral argument in the event that this Court of Appeals feels that oral argument would further aid them in their determination.
The Court of Appeals for the Ninth Judicial District affirmed the decision of the trial court on December 10, 2014. No Motion for Rehearing was filed. It is from this decision that the Petitioner appeals.
REQUEST FOR ORAL ARGUMENT Petitioner requests oral argument in the event that this Court of Appeals feels that oral argument would further aid them in their determination.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE The Court of Appeals for the Ninth Judicial District affirmed the decision of the trial court on December 10, 2014. No Motion for Rehearing was filed. It is from this decision that the Petitioner appeals.
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GROUND FOR REVIEW
ERROR 1: The evidence was legally and factually insufficient for the jury to rationally find beyond a reasonable doubt that Petitioner acted with the intent to cause Peddy’s death or cause serious bodily injury to him.
Statement of Facts
Prior to this event, Petitioner had known the victim, Randy Peddy(“Peddy”) for 10 to 15 years. (4 R.R. 57) In or around approximately June, 2012, Petitioner and Peddy were involved in a short relationship and were affectionate with each other. (5 R.R. 87). In July, 2013 Peddy began dating Petitioner’s daughter, Jackie Uzzell (Uzzell), and they continued that relationship until Peddy’s death. (5 R.R. 86). Peddy stayed at Petitioner’s home periodically. (4 R.R. 57).
In the early afternoon of Wednesday, November 28, 2012, Peddy was at Petitioner’s home, where he was supposed to have been working on Petitioner’s car. (4 R.R. 57). Petitioner noticed that Peddy had been drinking, and she saw him with a Vodka bottle. (4 R.R. 58-59). In her police statement, Petitioner noted that Peddy was a frequent beer drinker, but that Vodka made him “mean, hateful, ugly, and a totally different person.” (4 C.R. 58-59).
At Peddy’s request, Petitioner brought him back to his father’s house, where she instructed him that he could come over the following day if he quit drinking. (4
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R.R. 59-60). Petitioner and Peddy engaged in a minor verbal altercation, then Petitioner left Peddy’s father’s house. (4 R.R. 60).
At approximately5:00 to 5:30 that afternoon, Peddy returned to Petitioner’s home, purportedly looking for his battery. (4 R.R. 60). At that time, Petitioner was on the phone with Uzzell, who requested that Petitioner get her phone back from Peddy. (4 R.R. 60). Peddy refused to return the phone, and left the residence again. (4 R.R 60).
At approximately 8:30 that evening, Peddy again returned to Petitioner’s home.
(4 R.R. 60-61). Petitioner was at the home with her granddaughter, Jessica Andrews (“Jessica”), and her grandson’s girlfriend, Kailyn Hunt (“Hunt”). (4 R.R. 56). On Peddy’s arrival, Petitioner called Uzzell to let her know Peddy was back; Uzzell did not want Peddy there while he was drinking because he got “physically assaultive” with her when he drank Vodka. (4 R.R. 60-61). Uzzell called the police; Officer Greg Harbison (“Harbison”) arrived at the house at approximately 8:40 p.m. and questioned Petitioner about her wellbeing as requested by Uzzell. (4 R.R. 62). Petitioner told Harbison that Peddy was intoxicated, but that he was going to go to sleep and would not cause any more problems, so she was fine. (4 R.R. 16, 62). With that, the officers left. (4 R.R. 62). Peddy then became very agitated over the police having been called, and he demanded to know who had called them. (4 R.R. 62-63).
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Shortly after that, Peddy went outside and was overheard by Petitioner and Hunt, who were inside the home, cursing and having a very heated telephone conversation with a person who they believed to have been Uzzell. (4 R.R.63-64). After hearing glass breaking and a banging noise, Petitioner went outside to find Peddy throwing cement blocks through the windows of her car. (4 R.R. 64). Petitioner approached Peddy to stop him from further damaging her car, and a verbal and physical confrontation ensued, with Peddy threatening physical violence against Petitioner. (4 R.R. 64-65). Petitioner, now fearing that Peddy would hit her with one of the cement bricks, returned to the house with Peddy throwing things at her as she did. (4 R.R. 65). When she got back into the house, Petitioner locked the door behind her, then retrieved a .22 rifle from behind her bedroom door to scare Peddy off. (4 R.R. 65). Petitioner walked out the front door and turned toward Peddy, who was standing on the other side of the driveway, and she fired one shot toward the direction of the street. (4 R.R. 66). Rather than leave, Peddy responded by cursing at Petitioner and continuing to move toward her. (4 R.R. 66). Petitioner then pointed the gun more toward Peddy and fired what she believed was three more shots, after which Peddy slumped over, grabbing at his stomach. (4 R.R. 66). Petitioner, in shock, went back inside the house, put the gun back in her room, and told Jessica and Hunt that she had shot Peddy. (4 R.R. 66). Petitioner appeared visibly distraught,
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physically upset and was witnessed shaking and crying. (5 R.R. 114). Petitioner’s grandson arrived shortly after the shooting and Petitioner also told him “I shot Randy. I didn’t mean to.” (4 R.R. 66).
At approximately 9:40 that evening, Officer Greg Harbison(“Harbison”)
received the call for a disturbance at Petitioner’s home. (4 R.R. 17). He returned to the home with his partner, Deputy Helton, and Sergeant Brading from the Vidor Police Department. (4 R.R. 19). Upon arriving at the home for the second time that day, Harbison observed Peddy’s body lying just west of the residence, off to the side of the driveway. (4 R.R. 17). Harbison checked on Peddy, and determined that he was deceased. (4 R.R. 19-20). Harbison observed damage to Petitioner’s vehicle, including the windshield being shattered and cinder blocks in the front and back windshield. (4 R.R. 31).
Harbison went into the residence and spoke with Petitioner. (4 R.R. 20).
Harbison witnessed that Petitioner was crying and very upset, and continually saying she was sorry. (4 R.R. 35-36). Petitioner reported the sequence of events to Harbison, including that Peddy had assaulted her. (4 R.R. 32). Harbison noted redness and an abrasion to the right side of Petitioner’s face. (4 R.R. 22-23). Harbison testified at trial that the injuries looked like they had probably just occurred as a result of the reported assault. (4 R.R. 34). Petitioner admitted that she had shot
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Peddy, stating that she was trying to fire warning shots and that he continued walking toward her, so she fired again. (4 R.R. 25). Petitioner was then transported to the Orange County Sheriff’s Office to be interviewed. (4 R.R. 44).
SUMMARY OF THE ARGUMENT
Petitioner’s conviction should be reversed and a judgment of acquittal entered because the evidence was legally and factually insufficient to prove that Petitioner acted with intent to kill or cause serious bodily injury to Peddy at the time that she fired warning shots in his direction. Alternatively, her conviction should be reversed and the verdict reformed to the lesser-included offense of manslaughter if the Court finds that sufficient evidence exists that Petitioner caused Peddy’s death while acting with reckless disregard for the consequences of her actions.
ARGUMENT
The Court of Appeals determined that the evidence was legally and factually sufficient for the jury to rationally find beyond a reasonable doubt that the Petitioner acted with the intent to cause Peddy’s death or serious bodily injury to him. In making this determination there was such a departure from the accepted and usual course of judicial proceedings as to warrant an exercise of the Court of Criminal Appeals’ power of supervision.
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A. Standard of Review The Court of Criminal Appeals has held that “a rigorous and proper application” of the Jackson legal sufficiency standard is "the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt”.Brooks v. State,323 S.W.3d 893, 902-03, 906, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The reviewing court considers both direct and circumstantial evidence and all reasonable inferences that may be drawn therefrom in making its determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court then determines 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. Id.
To determine the sufficiency of the evidence under the Jackson standard, an appellate court must review 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 crime beyond a reasonable doubt .Jackson, 443 U.S. at 319. Evidence is legally insufficient under this standard if the record contains no evidence, or merely
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a “modicum” of evidence, probative of an essential element of the offense, or if the evidence conclusively establishes a reasonable doubt. Id. at 320. B. Legal Analysis In order to support a conviction for murder in this case, a felony of the first degree, the State bore the burden to prove beyond a reasonable doubt that Petitioner: (1) intentionally or knowingly caused Peddy’s death, or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused Peddy’s death. TEX. PEN. CODE § 19.02(b); (4 R.R. 5)§§.
To support a conviction for manslaughter, on the other hand, the evidence must prove that Petitioner recklessly caused Peddy’s death. TEX. PEN. CODE § 19.04§§. A person acts recklessly “when he is aware of but consciously disregards a substantial and unjustifiable risk.” TEX. PEN. CODE § 6.03(c)§§. “The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” Id.§§ Thus, the primary issue in this case is whether Petitioner acted with the specific intent to kill or harm Peddy, or whether Peddy’s death was the accidental result of Petitioner firing her weapon in his direction in an attempt to scare him away because Petitioner was in fear for her safety.
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In determining whether the evidence is legally sufficient to support a conviction for murder, the court must consider all the evidence to determine whether a rational fact finder could have found intent to kill or cause serious bodily injury beyond a reasonable doubt. Jackson, 443 U.S. at 318-19. Even the mere intent to pull the trigger of a firearm does not satisfy the requirement that a defendant had the specific intent to kill the victim. See Turner v. State, 805 S.W.2d 423, 430 (Tex.Crim.App.1991).
Intent is generally proven through the circumstantial evidence surrounding the crime, and the jury may infer the requisite intent from a defendant’s conduct, including both her conduct and her words. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Further, while specific intent to kill or cause serious bodily injury may be presumed from a defendant’s use of a deadly weapon, that presumption is rebuttable. Foster v. State, 639 S.W.2d 691, 695 (Tex. Crim. App. 1982). Where there is evidence from both sides that rebuts the presumption, as is the case herein, there remains no evidence that the Petitioner acted with specific intent to kill or cause serious bodily injury. Id.
In this case, the undisputed circumstances leading up to Peddy’s shooting, as well as Petitioner’s conduct and her words after Peddy was shot, all demonstrate Petitioner’s state of mind and lack of intent to harm or kill Peddy. Specifically,
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Peddy had been drinking and was causing a disturbance, including cursing and causing property damage, prior to the shooting, even having already required police to be called to the home that day. (4 R.R. 60-62).Peddy assaulted Petitioner, and even the investigating officer confirmed that the redness and abrasion to the right side of Petitioner’s face looked like they had probably just occurred as a result of the reported assault. (4 R.R. 22-23, 34). Witnesses reported that Petitioner was distraught, shaking and crying and very upset, continually saying she was sorry and that she didn’t mean for it to happen, after the shooting occurred. (4 R.R. 35-36, 66; 5 R.R. 114). Petitioner herself reported to police that she was not aiming for Peddy, but was only trying to fire warning shots because she feared for her safety. (4 R.R. 66). Notably, this testimony was unrebutted. Indeed, there was no affirmative evidence presented at trial of specific intent to kill or harm Peddy.
This constitutes no evidence, or nothing more than a “modicum” of evidence, probative of an essential element of the offense; accordingly, the evidence is insufficient to support Petitioner’s conviction in this case. Gonzalez, 337 S.W.3d at 479. Therefore, Petitioner’s conviction should be reversed and a judgment of acquittal rendered. Alternatively, Petitioner’s conviction should be reversed and the verdict reformed to the lesser-included offense of manslaughter in conformity with the evidence presented at trial. See Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim.
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App. 2012) (holding that a court of appeals may reform a trial court’s judgment to a lesser-included offense).
PRAYER FOR RELIEF
Petitioner prays this Court sustain the issues as set forth above, reverse the trial court's judgment and render a verdict of acquittal; alternatively, Petitioner prays that this Court reform the verdict to the lesser-included offense of manslaughter, and remand the case to the trial court for a new trial as to sentencing.
Oral argument is requested in the event that the court determines that it will aid in their determination.
Respectfully submitted,
CHRISTINE R. BROWN-ZETO
ATTORNEY AT LAW
1107 Green Ave.
Orange, TX 77630
Phone: (409) 886-8558
Fax: (409) 883-6523
crbrown@exp.net
By: /s/ Christine R. Brown-Zeto Christine R. Brown-Zeto
State Bar No. 03102200
ATTORNEY FOR PETITIONER
JULIA RHOTON ANDREWS
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CERTIFICATE OF COMPLIANCE I certify that this document was generated by a computer using Word Perfect 12, which indicates that the word count of this document is 3074 excluding portions omitted from that count per Tex. R. App. P. 9.4 (i).
/s/ Christine R. Brown-Zeto Christine R. Brown-Zeto
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was served on the following by hand delivery on February 6, 2015:
Tom Kelley Assistant District Attorney 801 W. Division Street Orange, Texas 77630 Attorney for Respondent, State of Texas
/s/ Christine R. Brown-Zeto Christine R. Brown-Zeto
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APPENDIX