ACCEPTED 06-15-00079-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/10/2015 7:19:26 PM DEBBIE AUTREY CLERK
NO. 06-15-00079-CR
FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE COURT OF APPEALS 7/13/2015 8:02:00 AM SIXTH DISTRICT OF TEXAS DEBBIE AUTREY AT TEXARKANA Clerk
BOBBY JOE EVENS, APPELLANT v.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 196th Judicial District Court Of Hunt County, Texas Trial Court Cause No. 27,388 Honorable Andrew Bench, Judge Presiding
APPELLANT’S BRIEF
Elisha M. Hollis (SBN 24083189) 2608 Stonewall Street P. O. Box 1535 Greenville, Texas 75403 Tel. (903)450-2473 Fax (903)200-1290 Email: ElishaHollis@gmail.com
ORAL ARGUMENT NOT REQUESTED IDENTITIES OF PARTIES AND COUNSEL
Appellant: Bobby Joe Evens
Defense Counsel at Trial: Mr. Chris Castanon 2000 E. Lamar Blvd. Suite 600 Arlington, TX 76006
Appellant’s Attorney on Appeal: Mr. Elisha M. Hollis 2608 Stonewall Street PO Box 1535 Greenville, TX 75403
Appellee’s Attorney at Trial: Ms. Keli Aiken Assistant District Attorney Hunt County District Attorney 2507 Lee Street, 4th Floor Greenville, TX 75401
Appellee’s Attorney on Appeal: Ms. Keli Aiken Assistant District Attorney Hunt County District Attorney 2507 Lee Street, 4th Floor Greenville, TX 75401
Trial Judge: Hon. Andrew Bench 196th Judicial District Court 2507 Lee Street, 3rd Floor Greenville, TX 75401
2 TABLE OF CONTENTS
Identities of the Parties and Counsel .......................................................................... 2
Table of Contents ....................................................................................................... 3
Index of Authorities ................................................................................................... 4
Statement of the Case................................................................................................. 5
Issues Presented ......................................................................................................... 6
Statement of the Facts ................................................................................................ 6
Issues and Authorities ................................................................................................ 8
I. 38.14 Instruction ............................................................................................ 8
A. The State's witness Robert Lewis Smith, Jr. should have been
considered an accomplice to the Appellant ................................................. 8
B. The trial Court committed egregious harm by not giving an
unrequested Art. 38.14 Instruction to the jury. ........................................ 10
I. Insufficient evidence .................................................................................... 13
A. The evidence was legally insufficient to support a finding of guilt by
the jury because the accomplice testimony was not sufficiently
corroborated. ................................................................................................ 13
Prayer ....................................................................................................................... 14
Certificate of Service ............................................................................................... 15
Certificate of Compliance with Rule 9.4 ................................................................. 16
3 INDEX OF AUTHORITIES STATE CASES:
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).................................... 12
Easter v. State, 536 S.W.2d 223 (Tex. Crim. App.1976) ........................................ 10
Ferguson v. State, 573 S.W.2d 516 (Tex. Crim. App. 1978) .................................... 9
Granviel v. State, 552 S.W.2d 107 (Tex. Crim. App. 1976) ................................... 11
Harris v. State, 645 S.W.2d 447, 457 (Tex. Crim. App. 1983) ............................... 9
Hinkle v. State, 442 S.W.2d 728 (Tex. Crim. App. 1969) ....................................... 11
Holladay v. State, 709 S.W.2d 194, 196 (Tex. Crim. App. 1986)........................... 11
Jackson v. Virginia, 443 U.S. 307 ........................................................................... 14
Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988) ................................. 12
Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App., 1991).................................. 12
Simmons v. State, 282 S.W.3d 504 (Tex. Crim. App. 2009) ................................... 14
Thomas v. State, 723 S.W.2d 696 (Tex. Crim. App. 1986) ..................................... 12
Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005) ............................ 15
Washington v. State, 127 S.W.3d 197 (Tex. App. Houston 2003) .......................... 15
STATE STATUTES:
Tex. Code Crim. Pro. Ann. Art. 38.14 ..................................................................... 11
4 NO. 06-15-00079-CR
IN THE COURT OF APPEALS SIXTH DISTRICT OF TEXAS AT TEXARKANA
On Appeal from the 196th Judicial District Court Of Hunt County, Texas Trial Court Cause No. 27,388 Honorable Andrew Bench, Judge Presiding
TO THE HONORABLE COURT OF APPEALS:
NOW COMES counsel for appellant and respectfully submits this brief
pursuant to the rules of the Texas Rules of Appellate Procedure.
STATEMENT OF THE CASE
This is an appeal from the judgment and sentence in a criminal case in the
5 196th District Court in Hunt County, Texas. The Appellant was indicted on May
27, 2011 for Possession of a Controlled Substance, with Intent to Deliver, Namely:
Cocaine, Four Grams or More but Less than Two Hundred Grams. After entering a
plea of Not Guilty, Appellant elected to be tried and sentenced by a jury.
On April 09, 2015 the jury found Appellant guilty and made a finding of true
to two or more enhancements. The jury assessed punishment at Life in the Texas
Department of Criminal Justice – Institutional Division. Appellant filed a notice of
appeal on May 05, 2015.
ISSUES PRESENTED
ISSUE ONE: The trial court cause egregious harm to the Appellant by not issuing
an Art. 38.14 instruction to the jury.
ISSUE TWO: The evidence presented in this case was legally insufficient to
support a conviction of the Appellant.
STATEMENT OF FACTS
Appellant, BOBBY JOE EVENS (hereinafter, “Appellant”) was indicted on
May 27, 2011 for Possession of a Controlled Substance, with Intent to Deliver,
Namely: Cocaine, Four Grams or More but Less than Two Hundred Grams (CR 6-
7)1. Appellant entered a plea of Not Guilty on August 22, 2011 (CR 8), and elected
1 References to the Clerk’s Record are designated as “CR #”, references to the Reporter’s Record are designated RR Vol. ___, page #: line #, and State and Defendant’s exhibits are designated SX and DX, respectively).
6 to be tried and sentenced by a jury on April 06, 2015. (RR vol. 4, 5:18-23).
On April 07, 2015, trial on the merits began. (RR vol. 5, 1:1-25). The state,
attempting to show that the Appellant delivered a controlled substance to Robert
Lewis Smith, Jr. on November 09, 2010, called Investigator Warren Mitchell. (RR
vol. 5, 32:25). Investigator Mitchell testified that he had followed the Appellant to
the NAT 24 gas station where he witnessed the Appellant meet with Robert Lewis
Smith, Jr. in what he believed to be a drug transaction. (RR vol. 5, 37:3-38:16).
The state then called Mr. Robert Lewis Smith, Jr. to testify. (RR vol. 5, 71:3-
4). Mr. Smith testified that he had met the Appellant at the NAT 24 gas station in
Greenville, Texas on November 09, 2010 in order to purchase crack cocaine from
the Appellant. (RR vol. 5, 72:18-23; 73:18-22). He stated that his plan in buying
drugs from the Appellant was to sale half of it in another county. (RR vol. 5,
81:14-25). He further stated that he paid the Appellant with 10 $20 bills. (RR vol.
5, 75:15-23).
After calling Mr. Smith, the state called Jason Whitten. (RR vol. 5, 112:8-9).
Mr. Whitten testified that on November 09, 2010 he was with two other
investigators in Greenville, Texas, who were going to show him the Appellant's
truck and residence. (RR vol. 5, 114:3-17). On their way they passed the Appellant
and followed him to the NAT 24 gas station. (RR vol. 5, 114:18-20). Mr. Whitten
testified that they watched Mr. Smith get into the Appellant's truck for a few
7 minutes and then exit the vehicle. (RR vol. 5, 115:5-10). It was Mr. Whitten's
belief that a drug deal occurred in that brief meeting between Mr. Smith and the
Appellant. (RR vol. 5, 115:17-20).
The State also called Officer Will Cole. (RR vol. 5, 131:19-20). Officer Cole
testified that on the day of the alleged event he conducted a traffic stop on the
Appellant immediately after the Appellant left the NAT 24 gas station. (RR vol. 5,
124:13-21). He stated that after stopping the Appellant, he conducted a search
incident to arrest and discovered $1,030 in cash (RR vol. 5, 135:2-13). Included in
this cash was at least 10 $20 bills. (RR vol. 5, 136:19-22)(SX 23-26).
The state also introduced several exhibits including SX 22 in which the
Appellant admitted to dealing drugs in Greenville, Texas between February 2010
and September 2011. At the end of the trial, and upon a finding of certain
enhancement paragraphs, the jury sentenced the Appellant to Life in the Texas
Department of Criminal Justice. (RR vol. 7, 41:13-15).
ISSUES AND AUTHORITIES
I. 38.14 Instruction
A. The state's witness Robert Lewis Smith Jr. should have been considered
an accomplice to the Appellant.
An accomplice is one who participated with another in a crime. Harris v.
State, 645 S.W.2d 447, 457 (Tex. Crim. App. 1983); Ferguson v. State, 573
8 S.W.2d 516, 523 (Tex. Crim. App. 1978). The benchmark for whether a person is
an accomplice is whether they can be prosecuted for the same charges for which
the defendant stands trial. Id.; Easter v. State, 536 S.W.2d 223, 227 (Tex. Crim.
App.1976).
In the present case, the state relied on the testimony of Robert Lewis Smith
Jr. to prove delivery of a controlled substance by the Appellant. (RR vol. 5, 71:3-
4). Mr. Smith testified that he had met with the Appellant on November 9, 2010,
the day of the alleged offense, in order to "score some work." (RR vol. 5, 72:15-
19). When asked what he meant by "work" he responded that it meant drugs. (RR
vol. 5, 72:20-21). He also said that his plan in buying drugs from the Appellant
was to sale half of it in another county. (RR vol. 5, 81:14-25). Furthermore, the
State introduced the interview between an investigator and Mr. Smith on the day
he was arrested in which Mr. Smith stated that he was buying drugs from the
Appellant and reselling them in Emory, Texas. (SX 4).
Based on these facts, Mr. Smith should have been considered an accomplice,
and any testimony he gave should have been considered accomplice testimony.
The Appellant was indicted for manufacturing or delivering a controlled substance
on November 9, 2015. Based on Mr. Smith's testimony of buying drugs from the
Appellant that day with intent to sale the drugs to others (RR vol. 5, 81:14-25) and
State's Exhibit 4, Mr. Smith could have been indicted on the same charges as the
9 Appellant. Because Mr. Smith clearly participated with the Appellant in the crime
as alleged, any testimony he gave should have been considered accomplice
testimony.
B. The trial Court committed egregious harm by not giving an unrequested
Art. 38.14 Instruction to the jury.
In the present case, the Appellant did not and could not have gotten a fair trial
without a proper jury instruction as to the accomplice testimony of Robert Lewis
Smith, Jr. As shown above, Mr. Smith was an accomplice to the alleged acts of the
Appellant. Accomplice testimony is inherently suspicious and is untrustworthy
enough that a conviction should not rest solely on such testimony. Holladay v.
State, 709 S.W.2d 194, 196 (Tex. Crim. App. 1986). The Texas legislature
memorialized this truth through Article 38.14 of the Code of Criminal Procedure
which states that "[a] conviction cannot be had upon the testimony of an
accomplice unless corroborated by other evidence tending to connect the defendant
with the offense committed; and the corroboration is not sufficient if it merely
shows the commission of the offense." Tex. Code Crim. Pro. Ann. Art. 38.14.
Generally, a defendant must timely object at trial to preserve error. Thomas v.
State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986); Granviel v. State, 552 S.W.2d
107, 121 (Tex. Crim. App. 1976), cert. denied 431 U.S. 933 (1977); Hinkle v.
State, 442 S.W.2d 728, 732-33 (Tex. Crim. App. 1969). But, "if no proper
10 objection was made at trial and the accused must claim that the error was
'fundamental,' he will obtain a reversal only if the error is so egregious and created
such harm that he 'has not had a fair and impartial trial'--in short 'egregious harm.' "
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1981) (op. on reh'g),
superseded on other grounds by rule as stated in Rodriguez v. State, 758 S.W.2d
787, 788 (Tex. Crim. App. 1988). Specifically, in the case of a necessary Art.
38.14 instruction that was omitted without objection at trial, egregious harm occurs
if "jurors would have found the corroborating evidence so unconvincing in fact as
to render the State's overall case for conviction clearly and significantly less
persuasive" without the accomplice testimony. Saunders v. State, 817 S.W.2d 688,
692 (Tex. Crim. App., 1991).
The jury in this case was asked to determine the guilt or innocence of the
Appellant based mostly off of the testimony of Mr. Smith but with no instruction
concerning accomplice testimony. This caused egregious harm to the Appellant.
The state's non-accomplice evidence is weak on its own, and absent the accomplice
testimony, would have made the state's case "significantly less persuasive." The
state presented evidence that Appellant met with Robert Lewis Smith, Jr. at the
NAT 24 (RR vol. 5, 37:3-38:16), that Appellant had $1,030.00 in cash on his
person after meeting with Mr. Smith (RR vol. 5, 135:2-13), and that Robert Lewis
Smith, Jr. had crack cocaine in his vehicle after meeting with the Appellant. The
11 state also offered prior testimony of the Appellant through SX 22 admitting that he
was dealing crack cocaine during that time period in Hunt county.
This evidence, without the accomplice testimony, leaves the state's case
devoid of any evidence upon which a conviction could rest. Meeting Mr. Smith at
a gas station and later finding drugs on him doesn't immediately infer that the
drugs came from the Appellant. In fact, the defense presented a reason for the
meeting between Mr. Smith and the Appellant in cross-examination of Mr. Smith
when Mr. Smith was asked whether it was true that the Appellant met him that day
to pick up a set of keys. (RR vol. 5, 84:23-85:3). Also, having $1,030 in cash on
him after meeting with Mr. Smith does not infer that the Appellant sold Mr. Smith
the crack cocaine. Any inference that the money must be from the sale of drugs is
downplayed by the fact that the cost of the drugs in Mr. Smith's possession was
only $200. (RR vol. 5, 42:11-12).
Finally, testifying that he has sold cocaine at some point in time does not tend
to connect the Appellant as the dealer from whom Mr. Smith received his cocaine.
If it did, then one might infer that the Appellant was the cocaine dealer for every
person he came into contact with who was in possession of such a drug, something
a reasonable juror would not do. Thus, egregious harm occurred to the Appellant in
this case because the corroborating evidence was of such a nature that, without the
accomplice testimony, the state's case against the Appellant was "significantly less
12 persuasive."
II. Insufficient Evidence
A. The evidence was legally insufficient to support a finding of guilt by the
jury because the accomplice testimony was not sufficiently corroborated.
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). In
the context of an Art. 38.14 objection, the standard used to determine the
sufficiency of corroborating evidence is "whether a rational fact-finder could
conclude that the non-accomplice evidence 'tends to connect' appellant to the
offense. Simmons v. State, 282 S.W.3d 504, 509 (Tex. Crim. App. 2009).
The state presented evidence through officer testimony that the Appellant
was at the NAT 24 on November 9, 2010 and met with Robert Lewis Smith, Jr.
there (RR vol. 5, 37:3-38:16), that Appellant had $1,030.00 in cash on his person
after meeting with Mr. Smith (RR vol. 5, 135:2-13), and that Robert Lewis Smith,
Jr. had crack cocaine in his vehicle after meeting with the Appellant. The state also
13 offered evidence through SX 22 that Appellant was dealing crack cocaine during
that time period in Hunt county.
Taken on its own, a rational juror would not find that this evidence tends to
connect the Appellant to the offense in this case. Meeting at a gas station with Mr.
Smith who was later found to have possession of drugs does not connect the
Appellant to the crime of delivery of a controlled substance any more than anyone
else who happened to meet with Mr. Smith on that day. Nor does finding $1,030 in
cash on the Appellant tend to connect the Appellant to the offense given that
testimony showed that the amount of drugs found on Mr. Smith was only worth
about $200. (RR vol. 5, 42:11-12). Furthermore, even the fact that the Appellant
sold drugs at other times is tenuous at best in showing that Appellant sold crack
cocaine on this particular date. Thus, taking the non-accomplice testimony on its
own, it does not tend to connect the Appellant to the offense, and is legally
insufficient to corroborate the accomplice testimony in this case.
CONCLUSION AND PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that his
judgment in the above entitled and numbered cause be reversed and rendered.
Appellant further prays for all other lawful relief to which he may be entitled, at
law or in equity.
Respectfully submitted,
14 By: /s/ Elisha Hollis Elisha Hollis
The Law Office of Elisha Hollis PO Box 1535 Greenville, Texas 75403 903-450-2473 (ph) 903-200-1290 (fax) ElishaHollis@gmail.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Appellant’s Brief was sent by first
class United States Mail, postage prepaid, to the Honorable Noble Walker, Hunt
County District Attorney, P.O. Box 441, Greenville, Texas 75403-0441 on this the
10th day of July, 2015.
I further certify that a true and correct copy of Appellant’s Brief was sent by
first class United States mail, postage prepaid to BOBBY JOE EVENS, TDJC #
1995944, Byrd Unit, 21 FM 247, Huntsville, TX 77320 on this the 10th day of
July, 2015.
/s/ Elisha Hollis Elisha Hollis
15 CERTIFICATE OF COMPLIANCE WITH RULE 9.4
Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that this
document complies with the type volume limitations because it is computer
generated and does not exceed 15,000 words. Using the word count feature of
Microsoft Word, the undersigned certifies that this document contains 2,083 words
in the entire document, except in the following sections: caption, identities of
parties and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, signature,
certificate of service and certificate of compliance. This document also complies
with the typeface requirements as it has been prepared in a proportionally spaced
typeface using Microsoft Word in 14-point Times New Roman.
16 17