ACCEPTED 01-14-00744-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 2/2/2015 10:45:39 AM CHRISTOPHER PRINE CLERK
Nos. 01-14-00744-CR and 01-14-00745-CR
In the FILED IN Court of Appeals for the First District of Texas1st COURT OF APPEALS HOUSTON, TEXAS At Houston 2/2/2015 10:45:39 AM CHRISTOPHER A. PRINE Clerk Cause Nos. 1326112 and 1383738 In the 248th District Court Of Harris County, Texas
ARTAVIOUS DEON HOLLINS Appellant
v.
THE STATE OF TEXAS Appellee
APPELLANT’S BRIEF
Casey Garrett 1214 Heights Boulevard Houston, Texas 77008 (713) 228-3800 Texas Bar No. 00787197 Casey.garrett@sbcglobal.net
ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL
Appellant: Artavious Deon Hollins
Counsel for Appellant at Trial: Mr. T. B. Todd Dupont, II Texas State Bar No. 24004289 3700 North Main Street Houston, Texas 77009 713-682-1800 Mr. Mike Driver Texas Bar No. 24069634 402 Main, 4th Floor Houston, Texas 77002 713-417-4809
Counsel for Appellant on Appeal: Casey Garrett 1214 Heights Boulevard Houston, Texas 77008 Texas Bar No. 00787197 713-228-3800
Counsel for the State at Trial: John Wakefield Assistant District Attorney Texas Bar No. 24054125 1201 Franklin Street, Suite 600 Houston, Texas 77002 713-755-6881
Counsel for the State on Appeal: Harris County District Attorney’s Office Appellate Division 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755-5800
Trial Judge: The Honorable Katherine Cabaniss
2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. 2
TABLE OF CONTENTS ................................................................................................ 3
INDEX OF AUTHORITIES........................................................................................... 4
STATEMENT OF THE CASE....................................................................................... 5
ISSUES PRESENTED.................................................................................................... 6
The trial court abused its discretion by allowing the State to question the crime scene officer about whether or not mud on the apartment door was fresh or wet or dry over the defense objection to speculation.
The evidence presented at trial was legally insufficient to support a conviction for murder.
SUMMARY OF THE ARGUMENT ............................................................................. 7
APPELLANT’S FIRST POINT OF ERROR ............................................................... 10
APPELLANT’S SECOND POINT OF ERROR .......................................................... 14
PRAYER ....................................................................................................................... 17
CERTIFICATE OF SERVICE ..................................................................................... 19
3 INDEX OF AUTHORITIES
Cases
Bigby v. State, 892 S.W.2d 864 (Tex. Crim. App. 1994) ...................................... 12
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) .................................... 15
Cantu v. State, 395 S.W.3d 202 (Tex. App.—Houston [1st Dist.] 2012) .............. 18
Falrow v. State, 943 S.W.2d 895 (Tex. Crim. App. 1997) ................................... 12
Forest v. State, 989 S.W.2d 365 (Tex. Crim. App. 1999) ..................................... 18
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) .......... 15
Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) ................................... 11
Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002). .................................. 11
Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012) ................................. 15, 16
Statutes
Tex. Penal Code Ann. sec. 19.02 (b) (1) ................................................................ 15
Tex. Penal Code Ann. sec. 6.03(a) ......................................................................... 15
Tex. Penal Code Ann. sec. 6.03(b) ........................................................................ 16 Rules
Tex. R. Evid. 602 ................................................................................................... 12
4 STATEMENT OF THE CASE
Mr. Artavious Hollins was charged by indictment with the felony offense of
murder (R.R.3 – 14). He was also indicted with the felony offense of tampering
with evidence (R.R.3 – 14). Mr. Hollins pled not guilty to both of the charges and
the cases were tried together before a jury (R.R.3 – 14). The jury found Mr.
Hollins guilty of murder and guilty of tampering with evidence (C.R. 308). The
jury assessed punishment at confinement for life in the Texas Department of
Criminal Justice, Institutional Division, in the murder case. The jury assessed
punishment at confinement for twenty-five years in the Texas Department of
Criminal Justice, Institutional Division, in the tampering case. Mr. Hollins filed
timely notice of appeal.
5 ISSUES PRESENTED
The trial court abused its discretion by allowing the State to question the crime scene officer about whether or not mud on the apartment door was fresh or wet or dry over the defense objection to speculation.
The evidence presented at trial was legally insufficient to support a conviction for murder.
6 SUMMARY OF THE ARGUMENT
The defense centered its case around Mr. Hollins’ explanation that he was
under attack by the other residents at the apartment complex on the day of the
shooting. Part of Mr. Hollins’ case concerned a footprint left on his front door.
This evidence supported Mr. Hollins’ claims that the complainant and his friends
kicked in the apartment door, leaving Mr. Hollins in a situation where he had to
act in self-defense. The prosecutor suggested the footprint was old and had been
there for a long time, and the judge allowed the crime scene unit to testify that it
was probably old, despite the fact that the crime scene officer was merely
speculating and the defense properly objected.
Mr. Hollins testified at trial and provided the testimony of an eyewitness
who confirmed his story that he acted in self-defense. Even if the jury disbelieved
Mr. Hollins’ testimony, however, and believed the facts as reported by Andre
Lewis and Tranea Jones, the State failed to present legally sufficient evidence of
murder.
STATEMENT OF FACTS
Mr. Hollins and his girlfriend moved into an apartment complex on West
34th Street known as Casa Nube, and within a matter of days, one of the women
living in the complex started arguing with him (R.R.4 – 196-204). At first, the
7 woman and Mr. Hollins merely exchanged some words back and forth, and Mr.
Hollins tried to avoid any further escalation by going into his apartment and
closing the door (R.R.3 – 140-143, 4 – 22-25, 204-215). At some point during this
confrontation between Shae and Mr. Hollins, other residents got involved,
including Tranea Jones and Andre Lewis. Andre Lewis appeared on the scene with
a gun in his pocket, which he displayed to Mr. Hollins in a manner that was not
immediately threatening but let Mr. Hollins know he was armed (R.R.4 – 27-30).
The woman who began the argument, however, known to her friends as
Shae, was not satisfied. She called a man she knew to come to Casa Nube and
confront Mr. Hollins. She referred to this man as “D.” Shae and D yelled at Mr.
Hollins through the door of his apartment (R.R.3 – 140-144, R.R.4 – 33-45). They
threw rocks, boards, and perhaps something like a log at the doors and windows of
Mr. Hollins’ apartment. They were yelling and kicking his front door. Both Shae
and D hoped to get Mr. Hollins outside so D could fight Mr. Hollins. Mr. Hollins
stayed in his apartment and avoided any further conflict or interaction with D or
Shae (R.R.3 – 140-150, R.R.4 – 33-45).
Approximately a week later, Shae started harassing Mr. Hollins again. She
was bringing up the fight from the week before with other residents in the
apartment complex (R.R.3 – 152-155). Shae spoke to Derrick Williams about what
had happened between her and Mr. Hollins, but did not explain that she and D had
already “taken care of it” by destroying Mr. Hollins’ property and throwing bricks,
boards, rocks and logs into his apartment. (R.R.3 – 155).
8 Derrick Williams became incensed by what Shae told him about Mr.
Hollins and started across a small courtyard toward Mr. Hollins’ apartment to fight
him or confront him in some manner. Tranea Jones was watching the courtyard
from her upstairs balcony and informed her roommate and partner, Andre Lewis,
that Derrick Williams and Mr. Hollins were about to fight (R.R.3 – 155-160).
Andre Lewis put on his shoes and ran downstairs. Derrick Williams and Andre
Lewis were making comments and being aggressive toward Mr. Hollins, and at
one point Derrick Williams told Mr. Hollins he was going to “whoop his behind.”
(R.R.3 – 152, 155-161). Mr. Hollins testified at trial that Derrick Williams and
Andre Lewis told him he had to leave the apartment complex that night, and that
both he and his wife were afraid to leave their belongings unattended because of
the aggression toward him by the other residents.
Derrick Williams and Andre Lewis advanced toward Mr. Hollins’
apartments. The witnesses told conflicting stories about how, exactly, it happened.
Mr. Hollins testified he was in the bathroom when Derrick Williams and Andre
Lewis came into his apartment unannounced and without warning. Tranea Jones
testified that Mr. Hollins “invited” them into his apartment, but she clarified that
he said it in a defensive way, telling them to “come on, then, come on in,” and his
tone was intended to say, “if you come in, basically I’m going to use that as self-
defense,” (R.R.3 – 159), indicating that Mr. Hollins felt threatened and was trying
to retreat into his own home. Regardless of how it happened, all the witnesses
agree that Derrick Williams went into Mr. Hollins’ apartment. Andre Lewis
9 alternately claimed that he wasn’t in the apartment or that he was; and he testified
at trial that he saw Mr. Hollins pull a gun out of his back waistband. Mr. Hollins
testified that Derrick Williams was carrying the gun. All the witnesses agreed that
Mr. Hollins and Derrick Williams tussled over a gun and the gun “went off” and
no one thought Mr. Hollins intended to shoot Derrick Williams.
APPELLANT’S FIRST POINT OF ERROR
The trial court abused its discretion by allowing the State to question the crime scene officer about whether or not mud on the apartment door was fresh or wet or dry over the defense objection to speculation.
In considering a trial court’s ruling on the admissibility of evidence, an
appellate court must determine whether the trial court abused its discretion.
Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). An appellate court
must uphold the trial court’s ruling if it is reasonably supported by the record and
is correct under any theory of law applicable to the case. Id. An appellate court
must review the trial court’s ruling in light of what was before the trial court at the
time the ruling was made. Id. Overruling appellant’s speculation objection in this
case constitutes an abuse of discretion if the trial court’s decision lies “outside the
zone of reasonable disagreement.” Walters v. State, 247 S.W.3d 204, 217 (Tex.
Crim. App. 2007).
Pursuant to Rule 602, a witness may not testify to a matter unless he or she
has personal knowledge of the matter. Bigby v. State, 892 S.W.2d 864, 889 (Tex.
10 Crim. App. 1994); Tex. R. Evid. 602. “Personal knowledge will often come
directly from the witness’ senses…[or]…experience.” Falrow v. State, 943
S.W.2d 895, 898 (Tex. Crim. App. 1997).
In the instant case, Mr. Hollins told the police and the jury that on the day
of the shooting he was trying to avoid further conflict with his neighbors. He said
he retreated into his own home. Mr. Hollins told the police and the jury that Andre
Lewis and Derrick Williams either kicked in his door or forced the door open or
otherwise came into his apartment without his permission. At trial, several
explanations were given as to how the door was opened without evident damage to
the frame or the doorknob or dead bolt (R.R.3 – 119-121). The State’s own
witness conceded that if the deadbolt was not locked and if the doorknob was not
functioning properly, the door could be “kicked” open, or pushed open, without
damage to the frame or the door (R.R.3 – 119-121).
Much of the State’s case depended on the State’s contention that Mr.
Hollins invited Derrick Williams and Andre Lewis into his apartment with the
apparent intention of talking about their differences. Mr. Hollins denied doing this
and one of the State’s star witnesses, Tranea Jones, testified that even if Mr.
Hollins extended an “invitation” into his apartment, it was spoken in a tone of
irony, intended to convey more of a dare, consistent with Mr. Hollins attempts to
retreat from his neighbors (R.R..3 – 159).
The crime scene officer took photographs of Mr. Hollins’ apartment door.
One of the photos clearly shows a footprint on the door, also consistent with Mr.
11 Hollins’ testimony that the men kicked his door open while he was in the
bathroom. The prosecutor was at pains to explain this evidence, asking the
responding crime scene officer about the photograph. The witness said that State’s
Exhibit 17 was a “photo of a dark spot which is actually a muddy shoe print on the
door,” (R.R.3 – 85). The prosecutor asked a lot of follow up questions about
damage to the door and then asked, “Had that mud footprint been there for a
while?” (R.R.3 – 88). The trial court sustained the objection. The prosecutor
asked, “based on your expertise as a CSU officer who has made scenes of these
kinds and investigated scenes of all kinds of crimes, in your knowledge if you
have it based on training and experience, did you determine that this was old or
not?” (R.R.3 – 88). Again, defense counsel objected to the question as speculation,
but the trial court overruled the objection (R.R.3 – 88). The witness said, “it had
been there long enough to dry which typically means number of hours [sic] if not
days” (R.R.3 – 88). The officer also testified that the right shoe of the victim did
not appear to be muddy (R.R.3 – 99).
The crime scene officer had no way to determine, either through science or
experience or any other method available to mankind, whether or not the shoe
print on the apartment door was new or old. Dusty shoes leave marks on doors as
easily as muddy shoes. A footprint left on a door can be wet or dry, muddy or
dusty, dark or light, and unless the print is obviously made up of crusted,
hardened, clay-like mud, protruding from the surface of the door, no one can
determine how old or new the print might be. The prosecutor attempted to cover
12 up the speculative nature of his question by suggesting the officer had some kind
of expertise in mud, but such a suggestion was patently untenable. He asked,
“based on your expertise as a CSU officer who has made scenes of these kinds and
investigated scenes of all kinds of crimes,” (R.R.3 – 88) implying that an officer
who responds to a wide range of crimes might have special knowledge about the
nature of the print. He asked, “based on training and experience, did you
determine that this was old or not,” (R.R.3 – 88) as if any police officers are
trained or experienced in the question of how long it takes mud to dry, or whether
or not a footprint on an apartment door was made out of dry, dusty dirt or mud that
has subsequently dried. Common sense dictates that the officer was speculating
and had no personal knowledge whatsoever about the nature or age of the print on
the door, making the testimony inadmissible under Rule 602.
This evidence was particularly damaging for Mr. Hollins because it allowed
the responding officer to say, in effect, that the police responders did not believe
his version of events. It allowed the prosecutor to discount, in front of the jury, the
evidence that clearly supported Mr. Hollins’ statements, rather than allowing the
jury to simply weigh the testimony and biases of all the witnesses involved. The
question of whether or not Derrick Williams and Andre Lewis forced their way
into Mr. Hollins’ apartment was the heart of Mr. Hollins’ defense.
The trial court abused its discretion when it allowed the crime scene officer
to speculate about the age of the dirty footprint on Mr. Hollins’ apartment door
13 and the error harmed Mr. Hollins. This court should reverse the conviction and
remand for a new trial.
APPELLANT’S SECOND POINT OF ERROR
The evidence presented at trial was legally insufficient to support a conviction for murder.
In determining whether evidence is sufficient, a reviewing court views all
the evidence in the light most favorable to the prosecution to determine whether
any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
2012), citing Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788-89, 61
L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.
2010). When the record supports conflicting inferences, a reviewing court must
presume that the fact finder resolved the conflicts in favor of the prosecution and
defer to that determination. Wise v. State, 364 S.W.3d at 903 (quoting Jackson,
443 U.S. at 326, 99 S.Ct. at 2788-89). The fact finder determines the weight and
credibility of the evidence. Id.
Ordinarily, to sustain a conviction for murder the evidence must
demonstrate that the person (1) intentionally or knowingly (2) caused the death of
an individual. Tex. Penal Code Ann. sec. 19.02 (b) (1). A person acts
“intentionally” or with intent with respect to the nature of his conduct or to a result
of his conduct when it is “his conscious objective or desire to engage in the
conduct or cause the result.” Tex. Penal Code Ann. sec. 6.03(a); Wise, 364 S.W.3d
14 at 903. A person acts knowingly or with knowledge of the nature of his conduct or
circumstances “when he is aware of the nature of his conduct or that the
circumstances exist.” Tex. Penal Code Ann. sec. 6.03(b).
In the instant case, all the witnesses agreed, both the witnesses for the State
and the ones for the defense, that Shae instigated a conflict between Mr. Hollins
and Derrick Williams and Mr. Hollins repeatedly retreated into his apartment from
this conflict. Tranea Jones and Andre Lewis both testified that Mr. Hollins initially
got into a verbal argument with Shae, but he consistently retreated into his
apartment any time the argument escalated or any time it looked like someone was
trying to take it to the next level. All the witnesses agree that Shae called D over to
the complex to harass Mr. Hollins and damage his apartment, and everyone
agreed Shae and D threw rocks, sticks and other items at the doors and windows of
the apartment, taunting him to come out. Lewis, Jones and Mr. Hollins all testified
that Mr. Hollins stayed securely inside his apartment on that occasion.
On the day of the shooting, likewise all the witnesses’ agree that Mr.
Hollins did not start or cause any arguments and that Shae, Williams and Lewis
were being aggressive toward Mr. Hollins. Mr. Lewis testified that every time Mr.
Hollins would begin to come out toward the courtyard and the other residents
began escalating the fight or walking toward him, he would immediately retreat
back into his home. Tranea Jones testified that Derrick Williams threatened to
“whoop his behind,” and Mr. Hollins continued to retreat until eventually he began
saying things like, “well, come on, come on then,” and eventually said, “come into
15 my house.” Tranea Jones referred to this statement as an “invitation,” but her
testimony made clear that she understood it to be in the nature of a dare, more of a
way to call the bluff of Derrick Williams and Andre Lewis by daring them to
follow Mr. Hollins into his own home. In fact, Tranea got Andre Lewis involved
because she could tell that Derrick Williams was pursuing the conflict and heading
toward Mr. Hollins’ apartment.
All the witnesses testified that there was a struggle for a gun inside Mr.
Hollins’ apartment. Tranea Jones testified, “I was already around there because
when Artavious realized that he had shot Derrick – because I don’t think
Artavious knew he shot Derrick until he seen Derrick when Derrick said, “it didn’t
have to go like this.” (R.R.3 – 167). Mr. Hollins also testified he didn’t know if
anyone was hurt when he ran away from the scene. He knew the gun had gone off,
and he knew Derrick Williams had fallen somewhere outside of his apartment, but
he was not aware that Derrick Williams had been shot.
Despite the inconsistencies in testimony, the witnesses at trial made several
things clear: 1) Mr. Hollins was not the aggressor in any of the incidents at Casa
Nube Apartments; 2) Mr. Hollins repeatedly declined to fight with the neighbors
who were trying to instigate a conflict and instead retreated into his home; 3)
Derrick Williams and Andre Lewis went into his home in the midst of a yelling
match when at least one other resident believed a fight was about to start; and 4)
Mr. Hollins did not intend to shoot or even know he’d shot Derrick Williams after
the tussle in his apartment.
16 Firing a gun in the direction of an individual is an act clearly dangerous to
human life within the meaning of the murder statute. Forest v. State, 989 S.W.2d
365, 368 (Tex. Crim. App. 1999). Struggling for control of a gun, however, when
two aggressors have followed you into your own apartment after days of verbal
harassment and property damage, is not an act clearly dangerous to human life. In
Cantu v. State, 395 S.W.3d 202 (Tex. App.—Houston [1st Dist.] 2012), this Court
rejected the defendant’s claims that the gun was accidentally discharged while he
tried to take it from the defendant. In that case, however, expert testimony showed
that the defendant had staged the evidence. In the instant case, by contrast, even
the State’s own witnesses believed the gun accidentally discharged, and all the
witnesses agreed that the complainant and Mr. Hollins struggled for control of the
gun.
The facts presented by the State do not support a conviction for murder and
no rational trier of fact could have found the elements of the charged offense based
on the record evidence. This court should reverse the conviction and acquit Mr.
Hollins.
PRAYER
Appellant respectfully prays this Honorable Court to reverse the conviction
and acquit Mr. Hollins. Alternatively, appellant respectfully prays this Honorable
Court to reverse the conviction and remand the case to the trial court for a new
trial.
17 Respectfully submitted,
____/s/Casey Garrett____ Casey Garrett 1214 Heights Boulevard Houston, Texas 77008 (713) 228-3800 Texas Bar No. 00787197 Casey.garrett@sbcglobal.net
18 CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been provided
to the District Attorney’s Office electronically.
____/s/Casey Garrett____ Casey Garrett 1214 Heights Boulevard Houston, Texas 77008 (713) 228-3800 Texas Bar No. 00787197 Casey.garrett@sbcglobal.net