ACCEPTED 12-15-00237-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 12/9/2015 2:30:50 PM Pam Estes CLERK
NO. 12-15-00237-CR
IN THE FILED IN 12th COURT OF APPEALS TYLER, TEXAS TWELFTH COURT OF APPEALS 12/9/2015 2:30:50 PM PAM ESTES SITTING AT TYLER, TEXAS Clerk
___________________________
APRIL ALLISON POWERS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
Appealed from the 145TH Judicial District Court of Nacogdoches County, Texas Trial Court No. F1421312
APPELLANT’S BRIEF
Noel D. Cooper Texas Bar No. 00796397 LAW OFFICES OF NOEL D. COOPER 117 North St., Suite 2 Nacogdoches, Texas 75961 Telephone: (936) 564-9000 Telecopier: (936) 715-6022 Email: noelcooper@noelcooper.com ATTORNEY FOR APPELLANT, APRIL ALLISON POWERS
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES & COUNSEL
Appellant certifies that the following is a complete list of the parties,
attorneys, and any other person who has any interest in the outcome of this
lawsuit:
Noel D. Cooper Texas Bar No. 00796397 LAW OFFICES OF NOEL D. COOPER 117 North St., Suite 2 Nacogdoches, Texas 75961 Telephone: (936) 564-9000 Telecopier: (936) 715-6022 Email: noelcooper@noelcooper.com ATTORNEY FOR APPELLANT, APRIL ALLISON POWERS
Carolyn Ann Gilcrease State Bar No. 24053934 Nacogdoches County District Attorney 101 W. Main, Suite 250 Nacogdoches, Texas 75961 Telephone: (936) 560-7766 Fax: (936) 560-6036 Email: cgilcrease@co.nacogdoches.tx.us ATTORNEY FOR APPELLEE
APRIL ALLISON POWERS TDCJ-ID # 02003575 Marlin Unit 2893 State Highway 6 Marlin, TX 76661-6588 APPELLANT
-2- TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL .......................................................... 2 TABLE OF CONTENTS ................................................................................. 3 INDEX OF AUTHORITIES ........................................................................... 4 STATEMENT OF THE CASE ........................................................................ 6 ISSUES PRESENTED ................................................................................... 7 STATEMENT OF FACTS ............................................................................... 7 SUMMARY OF THE ARGUMENT...............................................................13 ARGUMENT AND AUTHORITIES..............................................................14 Issue 1: Is the offense of Vehicle Involved in Accident unconstitutional on its face? ...................................14
Issue 2: Is the offense of Vehicle Involved in Accident unconstitutional as Applied to Appellant? .............14
Issue 3: Was the evidence is legally sufficient to support the jury’s finding that Appellant committed the offense of Vehicle Involved in Accident? ............................................................19
CONCLUSION ............................................................................................. 22 PRAYER ...................................................................................................... 23 CERTIFICATE OF COMPLIANCE .............................................................. 24 CERTIFICATE OF SERVICE....................................................................... 25 APPENDIX .................................................................................................. 26
-3- INDEX OF AUTHORITIES
Case Law
Barnes v. State, 876 S.W.2d 316 (Tex. Crim. App. 1994) ....................................................................... 20
Bowden v. State, 172 Tex. Crim. 578, 361 S.W.2d 207 (Tex. Cr. App. 1962) ...................................................................... 21, 22
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) .......................................................................19
Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001) ...................................................................... 20
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2014)........................................................................14
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) ...................................................................... 20
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) ................................................ 17
Jackson v. Virginia. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ..................................................................................................19
King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) .......................................................................19
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ....................................................................... 20
Penagraph v. State, 623 S.W.2d 341 (Tex. Crim. App. 1981) ....................................................................... 20
State v. Holcombe, 187 S.W.3d 496 (Tex. Crim. App. 2006) ....................................................................... 15
-4- Watson v. State, 369 S.W.3d 865 (Tex. Crim. App. 2012)........................................................................ 15
Statutes
TEX. CIV. PRAC. & REM. CODE Section 74.151 ..................................................................................... 18
TEX. PENAL CODE Section 1.07 .........................................................................................21 Section 6.04 .................................................................................. 17, 22
TEX. TRANS. CODE Section 550.021 ............................................................................. 16, 21 Section 550.023 ...................................................................... 16, 18, 21
-5- NO. 12-15-00237-CR
COMES NOW, Noel D. Cooper, court-appointed counsel for
Appellant, April Allison Powers, in the above numbered cause, and files this
Appellant’s Brief and would show this Honorable Court as follows:
STATEMENT OF THE CASE
Nature of the Case. Appellant was charged by indictment with two
counts of Vehicle Involved in Accident under TEX. TRANS. CODE §550.021a
third degree felony. The range of punishment was raised to that of a
habitual offender under TEX. PENAL CODE §12.42(d). The case was filed in
the 145TH District Court under Cause Number F1421312.
Course of Proceedings. On May 11, 2015, a jury was selected, and
evidence was opened and closed on May 12, 2015. Arguments were heard
on May 13, 2015. The punishment hearing was held on June 11, 2015.
Trial Court Disposition. The jury found Appellant guilty of one count
of Vehicle Involved in Accident. Appellant pleaded not true to the
-6- enhancement paragraphs and the trial court assessed punishment at 25
years in the Institutional Division of the Texas Department of Criminal
Justice.
ISSUES PRESENTED
Issue 1: Is the Vehicle Involved in Accident statute
unconstitutional on its face?
Issue 2: Is the Vehicle Involved in Accident statute
unconstitutional as applied to Appellant?
Issue 3: Was the evidence is legally sufficient to support the jury’s
finding that Appellant committed one count of Vehicle Involved in
Accident?
STATEMENT OF FACTS
Trial on the Merits
Raymond Read
Raymond Read was a police officer employed by the Nacogdoches
Police Department. RR 3:15. He was on duty on October 20, 2014, and he
responded to a one-car accident involving a pickup truck which had struck
a telephone pole. RR 3:17. Sitting behind the steering wheel of the truck
was a man who identified himself as Billy Pleasant and said that he had
been driving the vehicle. RR 3:18. However, through witnesses he
-7- determined that a black female had been driving the truck. RR 3:18. After
confronting Billy with the conflicting stories of the witnesses, Billy changed
his story and said that April Powers had been operating the truck. RR 3:18-
19. Mr. Read was unsure if Billy was injured, but another passenger, Willie
Pleasant who had left the accident scene, returned and had a cut on his chin
and appeared in need of medical attention. RR 3:19-20. Willie was
transported to the hospital via EMS. RR 3:20. April Powers was gone before
he arrived, and she never showed back up. RR 3:21. At the hospital, he
arrived and saw a physician sewing up Willie’s chin and lip. RR 3:21. Billy
arrived at the hospital later, and Mr. Read could see a goose egg on his
forehead. RR 3:22.
Billy never requested medical attention. RR 3:27. Willie showed up
after EMS arrived, and he was seen by EMS. RR 3:29. Billy Pleasant was
not transported to the hospital by EMS, and he was not demanding medical
treatment at the accident scene. RR 3:32. According to the information
available, Willie Pleasant left the scene voluntarily under his own power.
RR 3:32. Witnesses reported that this was an accident in which the driver
door came open and the driver fell to the ground. RR 3:32-33. Mr. Read
believed that a driver of a vehicle involved in an accident was required to
stay at the scene until they could be seen by medical personnel or
-8- transported. RR 3:33. It appeared that Willie Pleasant was in need of
medical attention. RR 3:34.
Tammatha Ruffin
On October 20, 2014, Ms. Ruffin heard a truck crash into a pole. RR
3:43. She had seen Appellant driving that truck earlier in the day. RR 3:44.
When she got to the truck, it was occupied by Billy and Willie. RR 3:46. Ms.
Ruffin did not see Appellant when she arrived at the crash scene. RR 3:47.
Ms. Ruffin eventually clarified that Willie was not in the truck at the time of
the accident but was walking. RR 3:49. Appellant might have been yelling
to call 9-1-1. RR 3:49.
Billy Gene Douglass
On October 20, 2014, Mr. Douglass heard a vehicle coming down the
road and thought that it was going to have a wreck because it was going
fast. RR 3:53. He saw the truck approaching on Chandler, and when it
started to make a left hand turn the driver door flew open and the Appellant
fell out. RR 3:53-54. The truck hit a light pole by Mr. Douglass’s house, and
Appellant approached the remaining occupants in the truck and asked
them if they were okay. RR 3:54-55. Mr. Douglass heard Appellant tell the
men in the truck that she could not stay because she had an arrest warrant.
RR 3:55. Appellant ran away from the scene, and he never heard her call for
-9- 9-1-1. RR 3:55-56. Billy and Willie were still in the truck when Appellant
left. RR 3:56.
Lyndon Pleasant
Lyndon was Billy’s son. RR 3:68-69. Lyndon was informed that his
father had been in an accident, and he found Billy’s truck at the corner of
Meizenheimer and Chandler Street, RR 3:69. Billy had a knot on his head,
and someone had bled in the truck. RR 3:70-71. Willie was Billy’s nephew.
RR 3:71. Willy was in the truck with Lyndon’s cousin Fay. RR 3:71. Fay said
that she was going to take Willie to the hospital. RR 3:71. Billy wanted to
have his truck towed, so Lyndon took Billy home. RR 3:72. Billy had some
groceries that he wanted put up. RR 3:72-73. Billy complained about his
head when he was put into the car. RR 3:73. Billy passed away three or six
months after the accident. RR 3:74. When Lyndon arrived at the accident
scene, Billy wanted to go to the hospital, but he also was trying to crank the
truck, too. RR 3:80. Lyndon could not remember if an ambulance was at
the scene before he arrived. RR 3:81.
Willie D. Pleasant
On October 20, 2014, Willie, a Houston resident, was in Nacogdoches
for a funeral. RR 3:84. On the date of the accident, he got into the truck
with Appellant and Billy because Billy was going to sell some scrap metal.
-10- RR 3:85. Appellant was driving Billy’s truck, she struck a pole and jumped
out just before. RR 3:87. Willie struck his mouth and chin, and at the time
of trial still had no feeling in his mouth. RR 3:87-88. The skin of his chin
was actually hanging down, and his lip had to be tied up. RR 3:88-89. After
the impact, he did not hear Appellant say anything. RR 3:89. Appellant left
the truck before Willie, and he exited the truck and walked to his sister’s
house who gave him a towel to put on his face. RR 3:91. He then walked
back to the accident so he could be put into the ambulance. RR 3:91. The
only thing he could remember for certain about the accident is that his chin
was injured. RR 3:99. Willie did not say anything to anyone while he was in
the truck because he could not talk. RR 3:102. There were many people
around the truck when he got out, and no one tried to help him. RR 3:103.
Ryan Ball
Ryan Ball was a detective with the Nacogdoches Police Department.
RR 3:108-09. Billy’s truck was a total loss. RR 3:114.
April Powers
Appellant took the stand in her own defense. RR 3:123. Appellant was
acting as a caregiver for Billy. RR 3:125. Billy’s truck was a 1982 or 1983
model, and it had trouble with the carburetor sticking as well as the driver’s
side door not staying closed. RR 3:133-34. Appellant was thrown out of the
-11- truck approaching a turn. RR 3:134. After being thrown from the truck,
Appellant slid on the concrete and then ran for the truck. RR 3:134. Billy
had taken the driver’s place in the truck and was trying to crank it. RR
3:134-35. Billy told her that he was fine, but he was mad and upset. RR
3:135. While talking to Billy, Willie got out of the truck, and she saw a man
she believed to be Mr. Douglass and Tamatha Pleasant approaching and
she told them to call 9-1-1. RR 3:136. Billy did not have any obvious
injuries, and he did not seem confused. RR 3:136. Willie was already getting
out of the truck at the time she got back to the truck and started talking to
Billy. RR 3:137-38. She was still at the scene when Willie came back, and
Jessica was on the phone with 9-1-1. RR 3:138-39. Appellant could tell that
Willie needed medical attention when he was walking back to the wreck,
but not when she first got back to the truck. RR 3:139. She took towels to
Willie for his face, and she knew that 9-1-1 had been called. RR 3:140.
Appellant could hear sirens approaching when she left the scene. RR 3:141.
Neither Appellant, Billy, nor Willie had a cell phone on the day of the
accident, and she heard Jessica Lewis tell the 9-1-1 operator that there had
been an accident and there was a bleeding person. RR 3:155-56.
Punishment Hearing
-12- Mr. Read again testified during sentencing. RR 5:6. He testified that
Willie was not on the scene when Mr. Read arrived, and when Willie
returned to the scene EMS had already arrived and then started looking at
him. RR 5:7. If EMS had not been on the scene, he would have applied
pressure to Willie’s chin. RR 5:7. Mr. Read was on the accident scene for
approximately ten minutes before Willie returned. RR 5:9. He did not think
that Willie’s chin was a life-threatening situation. RR 5:11.
Gary Brittain
Gary Brittain, an investigator for the Nacogdoches County Attorney’s
Office, had had training in fingerprint identification. RR 5:16-17. Mr.
Brittain testified that Appellant had a final conviction for burglary of a
habitation in cause number 5325-93-3. RR 5:20-21. He also testified that
Appellant had a final conviction in cause number F10431-2002. RR 5:21-
22. Mr. Brittain also testified that Appellant had a final conviction for credit
card abuse. RR 5:22-23.
SUMMARY OF THE ARGUMENT
Appellant’s first and second issues are that the statute under which
she was convicted is unconstitutional. The statute is unconstitutionally
vague, and Appellant was not under any notice as to what conduct was
prohibited or what conduct was required.
-13- Appellant’s third issue is that the evidence was not legally sufficient to
support a finding that Appellant was guilty of Vehicle Involved in Accident.
Based on the evidence introduced at trial, the jury could not have concluded
that Appellant failed to comply with the requirements of Sections 550.021
and 550.023 of the Texas Transportation Code, and specifically that
Appellant failed to provide reasonable assistance to Willie Pleasant. More
than 50 years ago, the Court of Criminal Appeals determined that a person
could not be convicted for failure to stop and render aid for not giving
assistance to an injured person who was aided by others. There was no
assistance that Appellant could have provided, no actions required under
the code, which were not provided or done by others.
ARGUMENT AND AUTHORITIES
Issue 1: Is the Vehicle Involved in Accident statute unconstitutional on its face? Issue 2: Is the Vehicle Involved in Accident statute unconstitutional as applied to Appellant? Argument & Authorities
Standard of Review
“When the constitutionality of a statute is attacked, we usually begin
with the presumption that the statute is valid and that the legislature has
not acted unreasonably or arbitrarily. The burden normally rests upon the
person challenging the statute to establish its unconstitutionality.” Ex parte
-14- Lo, 424 S.W.3d 10, 14-15 (Tex. Crim. App. 2014). “Terms not defined in a
statute are to be given their plain and ordinary meaning, and words defined
in dictionaries and with meanings so well known as to be understood by a
person of ordinary intelligence are not to be considered vague and
indefinite.” Watson v. State, 369 S.W.3d 865, 870 (Tex. Crim. App. 2012).
It is a basic principle of due process that a statute is void for vagueness if its prohibitions are not clearly defined. The void- for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not permit arbitrary and discriminatory enforcement. Although a statute is not impermissibly vague because it fails to define words or phrases, it is invalid if it fails to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. Moreover, where, as here, a statute does not substantially implicate constitutionally protected conduct or speech, it is valid unless it is impermissibly vague in all applications. State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006).
Section 550.023 is unconstitutionally vague as it applies to Appellant. Appellant was prosecuted under a statute titled “Accident Involving
Personal Injury or Death” which provides the following:
The operator of a vehicle involved in an accident that results or is reasonably likely to result in injury to or death of a person shall: (1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible; (2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident;
-15- (3) immediately determine whether a person is involved in the accident, and if a person is involved in the accident, whether that person requires aid; and (4) remain at the scene of the accident until the operator complies with the requirements of Section 550.023.
TEX. TRANS. CODE §550.021(a). Section 550.023 which is referenced
provides the following:
The operator of a vehicle involved in an accident resulting in the injury or death of a person or damage to a vehicle that is driven or attended by a person shall: (1) give the operator's name and address, the registration number of the vehicle the operator was driving, and the name of the operator's motor vehicle liability insurer to any person injured or the operator or occupant of or person attending a vehicle involved in the collision; (2) if requested and available, show the operator's driver's license to a person described by Subdivision (1); and (3) provide any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if the injured person requests the transportation.
TEX. TRANS. CODE §550.023 (emphasis added). “Reasonable assistance” is
not defined by the statute or by Chapter 550. TEX. TRANS. CODE §550.023
passim; TEX. TRANS. CODE Chapter 550 passim.
“A plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of
others. A court should therefore examine the complainant's conduct before
-16- analyzing other hypothetical applications of the law.” Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 71
L.Ed.2d 362 (1982). As discussed above in her statement of facts, the truck
driven by Appellant would not start and had to be towed, RR 3:72, and
another person had already called an ambulance. RR 3:151. Using the
examples provided in Section 550.023, Appellant would have been unable
to transport Willie to the hospital because the truck she had been driving
was inoperable, and an ambulance had already been called by another
person. There is no way that Appellant could have been on notice that there
were additional steps necessary after the accident.
Further, what harm could have occurred after the accident based on
Appellant’s actions or inactions? Assuming that Willie was injured in the
accident, none of Appellant’s actions or inactions led to any additional
harm after the accident. “A person is criminally responsible if the result
would not have occurred but for his conduct, operating either alone or
concurrently with another cause, unless the concurrent cause was clearly
sufficient to produce the result and the conduct of the actor clearly
insufficient.” TEX. PENAL CODE §6.04(a). There was no evidence that any of
Appellant’s actions after the accident did anything to harm or exacerbate
existing harm to Willie. RR 3:passim, 4:passim.
-17- Section 550.023 is unconstitutionally vague on its face. The Texas Legislature could have defined “reasonable assistance” but
chose not to do so. Instead, it gave two examples which both dealt with
transportation. TEX. TRANS. CODE §550.023(3). Does “reasonable
assistance” mean giving treatment to an injured person after an accident?
The Texas Legislature has chosen to insulate “good Samaritans” from
negligence claims, TEX. CIV. PRAC. & REM. CODE §74.151(a), but the person
whose negligence was the alleged cause of the accident is not shielded. TEX.
CIV. PRAC. & REM. CODE §74.151(e). Does the Texas Legislature truly intend
drivers to provide emergency care on the side of the road? What is a
person’s duty once emergency care is in route? If 9-1-1 has been called, does
a person have criminal liability for not calling 9-1-1 again herself? None of
these questions can be answered based on the working of the statute.
In conclusion, the statute does not define “reasonable assistance,”
and neither Appellant nor any person is in any position to understand
exactly what her duties are. Consequently, there arises a prosecution such
as this where Appellant’s actions, while possibly deplorable, nevertheless
could not have resulted in any harm to anyone. Thus, this Court should find
that the Statute is unconstitutional, reverse the jury’s verdict, and render a
verdict of acquittal.
-18- Issue 3: Was the evidence is legally sufficient to support the jury’s finding that Appellant committed Vehicle Involved in Accident? Argument & Authorities
Legal sufficiency of the evidence “is an essential of the due process
guaranteed by the Fourteenth Amendment that no person shall be made to
suffer the onus of a criminal conviction except upon sufficient proof –
defined as evidence necessary to convince a trier of fact beyond a
reasonable doubt of the existence of every element of the offense.” Jackson
v. Virginia. 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),
overruled on other grounds by Schlup v. Delo, 513 U.S. 298, 115 S.Ct 851;
130 L.Ed 2d 808 (1995). The standard of review is whether, when viewed in
the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Id. at 319; King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). This
standard is the only standard that a reviewing court will apply in
determining whether the evidence is sufficient to support each element of
the offense which the State is required to prove beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The appellate
court will consider all evidence admitted, whether proper or improper.
-19- “Every fact need not point directly or independently to the defendant’s guilt
[citation omitted]. A conclusion of guilt can rest on the combined
cumulative for of all incriminating circumstances.” Conner v. State, 67
S.W.3d 192, 197 (Tex. Crim. App. 2001). The jury is the exclusive judge of
the facts, the credibility of the witnesses, and the weight to be given to that
testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994);
Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).
Legal sufficiency of the evidence is measured against the elements of
the offense as defined by a hypothetically correct jury charge, one that
“accurately sets out the law, is authorized by the indictment, does not
necessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense
for which the defendant was tried.” Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). The charge should not merely quote the elements of
the offense listed in the statute, but should list the statutory elements “as
modified by the charging instrument.” Gollihar v. State, 46 S.W.3d 243,
254 (Tex. Crim. App. 2001). “A hypothetically correct charge has its basis in
the indictment allegations.” Id. at 255.
-20- The evidence was not legally sufficient to support a conviction for Vehicle Involved in Accident. An "omission" is defined in the Penal Code as a failure to act. TEX.
PENAL CODE § 1.07(a)(34). Appellant was charged with Vehicle Involved in
Accident. CR 6. A person commits Vehicle Involved in Accident if she drives
a vehicle involved in an accident which results in an injury to a person and,
knowing that an accident occurred, intentionally or knowingly failed to
render reasonable assistance to a person who was involved in an accident
when it was apparent that the injured person was in need of medical
treatment. TEX. TRANS. CODE §§ 550.021, 550.023. As discussed above, the
vehicle Appellant had been driving was inoperable, and 9-1-1 had been
called and an ambulance arrived at the scene and transported Willie to the
hospital. There was no evidence that Appellant had another vehicle at the
scene of the accident available to take Willie to the hospital.
Moreover, this issue has already been resolved by the Texas Court of
Criminal Appeals. Bowden v. State, 172 Tex. Crim. 578, 361 S.W.2d 207
(Tex. Cr. App. 1962)(analyzing former TEX. REV. CIV. STAT. ANN. art. 6701d,
§§ 38, 40 (West 1977), repealed by Acts 1995, 74th Leg., ch. 165, sec. 24(a),
eff. Sept. 1, 1995). In Bowden, the Court of Criminal Appeals analyzed a
conviction under the predecessor statutes to Sections 550.021 and 550.023
under remarkably similar facts. Id. at 207-08. The Bowden court
-21- determined that failing to do for an injured party what was done for others
would not be criminal. Id. at 208. There is no evidence that Appellant could
have rendered any additional assistance to Willie at the scene of the
accident that was not done by others. In other words, there was no
causation. Applying Section 6.04 of the Texas Penal Code to the facts act
hand, no jury could have decided that but for Appellant’s failure to
personally call 9-1-1, that her duties under Section 550.023 had not been
satisfied. See TEX. PENAL CODE §6.04(a). The officer who responded to the
scene testified that Willie was applying pressure to his chin, and that the
witness would have done the same thing to Willie if Willie had not been
doing do. RR 5: 12-13. There was no evidence that Willie needed any
additional care that Appellant could have provided. The Texas Legislature
could have required a party to provide medical care, but it did not. Thus,
the evidence is not legally sufficient to support a conviction for this offense,
and the decision of the trial court should be reversed.
CONCLUSION
This appeal arose out of an accident. This is important, because the
Appellant and the victims all knew one another. Appellant did not set out to
injure Willie or anyone else, and she was not a medical professional. Billy’s
truck stopped working, 9-1-1 was called, and an ambulance sent to the
-22- scene. So far, this is a typical auto accident stemming from a person’s
negligence.
This is a really simple case. The State alleged that Appellant violated
Section 550.021 of the Texas Transportation Code not because the duties of
Section 550.023 of the Texas Transportation Code were not satisfied, but
because they were not satisfied by Appellant. “Reasonable assistance”
insofar as could be provided was provided. That the result in this matter
could have hinged on Appellant’s calling 9-1-1 again is a perverse result.
The authorities were contacted, and Appellant could not have done
anything else for Willie Pleasant. Appellant was in no position to personally
transport Willie anywhere, and he was ultimately transported by an
Ambulance. There was no testimony that, by not calling 9-1-1 a second
time, Willie suffered any other harm beyond his injuries in the accident.
PRAYER
Appellant prays that the Court reverse the judgment of the trial court
convicting her of vehicle involved in accident and render a verdict of
acquittal. Appellant prays for any further relief to which she is entitled.
-23- Respectfully submitted,
/s/Noel D. Cooper Noel D. Cooper Texas Bar No. 00796397 LAW OFFICES OF NOEL D. COOPER 117 North St., Suite 2 Nacogdoches, Texas 75961 Telephone: (936) 564-9000 Telecopier: (936) 715-6022 ATTORNEY FOR APPELLANT, APRIL ALLISON POWERS
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(i)(3), I certify that this document is
computer generated and contains 3,797 words based on a computer word
count.
/s/Noel D. Cooper NOEL D. COOPER
-24- CERTIFICATE OF SERVICE
I certify that I delivered a copy of this Appellant’s Brief to each
attorney of record or party in accordance with the Texas Rules of Appellate
Procedure on December 9, 2015, at the addresses and manners below.
Carolyn Ann Gilcrease State Bar No. 24053934 Nacogdoches County District Attorney 101 W. Main, Suite 250 Nacogdoches, Texas 75961 Telephone: (936) 560-7766 Fax: (936) 560-6036 Email: cgilcrease@co.nacogdoches.tx.us Via Electronic Service
/s/Noel D. Cooper Noel D. Cooper Attorney for April Allison Powers
-25- NO. 12-15-00237-CR
APPELLANT’S APPENDIX
LIST OF DOCUMENTS
1. Former TEX. REV. CIV. STAT. ANN. art. 6701d, §§ 38, 40 (West 1977), repealed by Acts 1995, 74th Leg., ch. 165, sec. 24(a), eff. Sept. 1, 1995 ........................ Exhibit 1
-26-