ACCEPTED 01-17-00176-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 5/25/2018 4:38 PM CHRISTOPHER PRINE CLERK
Appeal No. 01-17-00176-CR ___________________________________ FILED IN 1st COURT OF APPEALS In the First Court of Appeals HOUSTON, TEXAS ___________________________________5/25/2018 4:38:48 PM CHRISTOPHER A. PRINE Clerk BRIAN THOMAS SPINKS, Appellant
Vs.
THE STATE OF TEXAS, Appellee. ___________________________________
On Appeal from the 300th Judicial District Court of Brazoria County, Cause No. 78734-CR. ___________________________________
MOTION FOR REHEARING FOR APPELLANT, BRIAN THOMAS SPINKS ___________________________________
To the Honorable Justices of the First Court of Appeals:
Comes now appellant, Brian Thomas Spinks, by and through his attorney of
record, Cary M. Faden, and files this her Motion For Rehearing of the May 15, 2018,
decision of the First Court Of Appeals of Texas in Spinks v. State, No. 01-17-00176-
CR, slip op. at 1-12, (Tex. App. - Houston (1st Dist.), May 15, 2018, pet. pending),
and would respectfully show the Court the following:
1 I.
On May 5, 2016, Appellant, was indicted for the first degree felony offense of
Attempted Capital Murder; (1 CR at 6). The offense was alleged to have occurred on
or about April 9, 2016. (1 CR at 6). On February 13, 2017, Appellant pleaded not
guilty to the indictment. (2 RR at 4). After a jury trial, the jury assessed Appellant’s
punishment at confinement in the Texas Department of Criminal Justice-Institutional
Division for a period of sixty years, and a $5,000.00 fine. (1 CR at 162). On February
24, 2017, Appellant timely filed his notice of appeal. (1 CR at 170).
In the Brief for Appellant, one point of error was briefed. Appellant files this
his Motion For Rehearing wherein, Appellant is concerned as to given the Court
failed to hear Oral Argument in this attempted capital murder appeal, wherein it
appears clear that this Court failed to properly address and apply the law as it related
to Appellant’s Point of Error One, issue and again argues on appeal Appellant asserts
that the evidence adduced at trial was legally insufficient to prove that Appellant was
guilty of attempted capital murder. It is Appellant’s contention that given the tenor
of the Opinion, this Court has wholly failed to reach all of the merits of Appellant’s
arguments and misconstrued Appellant’s argument as to the Brief for Appellant, and
how said application will affect Appellant’s case.
2 II.
In its opinion this Court responded to Appellant’s point of error one and held:
In his sole issue, appellant argues that the evidence is legally insufficient to
support his conviction for attempted capital murder because he did not intend to cause
Deputy Harper’s death, but was acting in self-defense in order to stop Harper “from
choking [him] to death in [Harper’s] attempt to detain [him].”
A person commits murder if he intentionally or knowingly causes the death of
another person. TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011); Temple v.
State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013). A person commits capital
murder when he commits murder under section 19.02(b)(1) and the murder is
committed upon “a peace officer . . . who is acting in the lawful discharge of an
official duty and who the person knows is a peace officer.” TEX. PENAL CODE ANN.
§ 19.03(a)(1) (Vernon Supp. 2017); see also TEX. CODE CRIM. PROC. ANN. art. 2.12
(Vernon Supp. 2017) (defining peace officer). A person commits the offense of
attempted capital murder if, with specific intent to commit capital murder, he “does
an act amounting to more than mere preparation that tends but fails to effect the
commission of the offense intended.” TEX. PENAL CODE ANN. § 15.01(a) (Vernon
2011); see also Herrin v. State, 125 S.W.3d 436, 440 n.5 (Tex. Crim. App. 2002)
(setting forth elements of criminal attempt).
3 “Intent is almost always proven by circumstantial evidence.” Trevino v. State,
228 S.W.3d 729, 736 (Tex. App.—Corpus Christi 2006, pet. ref’d); see also Hart v.
State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (“Direct evidence of the requisite
intent is not required . . . .”); Smith v. State, 56 S.W.3d 739, 745 (Tex.
App.—Houston [14th Dist.] 2001, pet. ref’d). “A jury may infer intent from any facts
which tend to prove its existence, including the acts, words, and conduct of the
accused, and the method of committing the crime and from the nature of wounds
inflicted on the victims.” Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App.
1999). A jury may also infer knowledge from such evidence. See Stahle v. State, 970
S.W.2d 682, 687 (Tex. App.—Dallas 1998, pet. ref’d); Martinez v. State, 833 S.W.2d
188, 196 (Tex. App.—Dallas 1992, pet. ref’d).
Further, a firearm is a deadly weapon per se. TEX. PENAL CODE ANN. §
1.07(a)(17) (Vernon Supp. 2017); Sholars v. State, 312 S.W.3d 694, 703 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d). And the intent to kill a complainant may
be inferred from the use of a deadly weapon in a deadly manner. Adanandus v. State,
866 S.W.2d 210, 215 (Tex. Crim. App. 1993); Watkins v. State, 333 S.W.3d 771, 781
(Tex. App.—Waco 2010, pet. ref’d). If a defendant uses a deadly weapon in a deadly
manner, the inference of intent to kill is almost conclusive. Watkins, 333 S.W.3d at
781; Trevino, 228 S.W.3d at 736. “[T]he most obvious cases and the easiest ones in
4 which to prove a specific intent to kill, are those . . . in which a firearm [is] used and
[is] fired . . . at a person.” Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App.
1986).
Here, Deputy Harper testified that appellant pointed a firearm at him while he
and appellant were standing up “face[-]to[-]face, . . . within a foot of each other.”
Harper, who did not have a firearm or other weapon drawn at that time, grabbed the
“muzzle” of the firearm “to try to keep [appellant] from pointing it in [his] direction.”
While Harper was still holding the muzzle, appellant shot him in the stomach.
Gercia similarly testified that he saw appellant and Deputy Harper initially
engaged in an altercation on the ground, but when appellant stood up, he pointed a
firearm at Harper. He also saw Harper grab the firearm in appellant’s hand, and he
heard it discharge. Further, appellant also admitted that he shot a firearm at Harper
and knew Harper was a “peace officer.”
Although on appeal appellant argues that the evidence is legally insufficient
to support his conviction for attempted capital murder because he shot Deputy Harper
in self-defense and did not intend to kill him, we note that the jury charge in this case
included an instruction on self-defense. And even though appellant testified that he
“feared for [his] life,” shot at what he thought was Harper’s shoulder, and was not
trying to kill Harper, but only to “release [Harper’s] arm,” it was for the jury to
5 determine appellant’s credibility and the weight to be given to his testimony. See
Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011); Brooks v. State, 323
S.W.3d 893, 899 (Tex. Crim. App. App. 2010). Further, for the evidence to be
sufficient, the State “need not disprove all reasonable alternative hypotheses that are
inconsistent with the defendant’s guilt.” Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012).
Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational trier of fact could have determined beyond a reasonable doubt that
appellant intended to cause the death of Deputy Harper, a peace officer, and
committed “an act amounting to more than mere preparation.” See TEX. PENAL CODE
ANN. § 15.01(a) (Vernon 2011), § 19.03(a)(1) (Vernon Supp. 2017). Accordingly, we
hold that the evidence is legally sufficient to support appellant’s conviction. The
First Court overruled appellant’s sole issue.
III.
Appellant cites to relevant legal authorities and provides substantive analysis
concerning Points of Error One as was best argued from the record made by trial
counsel. In Point of Error One, clearly, it was Appellant’s trial strategy that the
evidence is insufficient to sustain a finding that Harper's attempted murder was
committed deliberately and with the expectation that death would result. See TEX.
6 CRIM. PROC. CODE art. 37.071(b)(1). The jury was instructed “Now if you find
from the evidence beyond a reasonable doubt that on or about the 9th day of April,
2016, in Brazoria County, Texas, the defendant, BRIAN THOMAS SPINKS, with the
specific intent to commit the offense of Capital Murder, did then and there attempt
to intentionally or knowingly cause the death of an individual, namely, Brian Harper,
and the said Brian Harper was then and there a peace officer who was acting in the
lawful discharge of an official duty, and the defendant knew Brian Harper was a
peace officer, by shooting Brian Harper with a firearm, which said act amounted to
more than mere preparation that tended but failed to effect the commission of the
offense intended; then you will find the defendant guilty of the offense of Attempted
Capital Murder as alleged in the indictment; or if you find from the evidence beyond
a reasonable doubt that on or about the 9th day of April, 2016, in Brazoria County,
Texas, the defendant, BRIAN THOMAS SPINKS, with the specific intent to commit
the offense of Capital Murder, did then and attempt to intentionally or knowingly
cause the death of an individual, namely, Brian Harper, and the said Brian Harper was
then and there a peace officer who was acting in the lawful discharge of an official
duty, . and the defendant knew Brian Harper was a peace officer, by shooting at Brian
Harper with a firearm, which said act amounted to more than mere preparation that
tended but failed to effect the commission of the offense intended; then you will find
7 the defendant guilty of the offense of Attempted Capital Murder as alleged in the
indictment.” Also, the jury was instructed, “"Attempt" to commit an offense occurs,
if, with specific intent to commit an offense, a person does an act amounting to more
than mere preparation that tends, but fails, to effect the commission of the offense
intended.
A person acts intentionally, or with intent, with respect to a result of his
conduct when it is his conscious objective or desire to cause the result.”
The evidence at trial demonstrates that Appellant was in possession of a loaded
gun, and shot Harper from a distance of three to five feet, Appellant's made
statements claiming a self defense shooting as a result of a choking or excessive force
used by Harper, and a struggle. Evidence of a struggle does not negate the inference
of deliberate conduct. Livingston v. State, 739 S.W.2d 311, 339 (Tex. Crim.
App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). The
evidence does not support the inference that a jury could have reasonably concluded
that appellant's mere possession of a loaded gun was probative of his deliberate
behavior. Id.; Demouchette v. State, 591 S.W.2d 488 (Tex. Crim. App.1979), cert.
denied, 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996 (1981).
Texas Penal Code section 19.03(a)(1) provides that a person commits capital
murder if the person commits murder of a peace officer or fireman who is acting in
8 the lawful discharge of an official duty and who the person knows is a peace officer
or fireman. As used in Texas Penal Code section 19.03(a)(1), “in the course of
committing” is defined as conduct occurring during an attempt to commit, during the
commission of, or in immediate flight from, the forbidden behavior. See, e.g., Rivera
v. State, 808 S.W.2d 80, 93 (Tex. Crim. App. 1991). Appellant’s intent at that time
was not to kill Officer Harper, but rather to remove Officer harper from choking
Appellant to death in his attempt to detain Appellant. See, e.g., Laster v. State, 275
S.W.3d 512, 524-25 (Tex. Crim. App. 2009) (a defendant’s intent may be discerned
from the surrounding circumstances).
Appellant argues that the evidence is insufficient to show that Appellant did
then and there with the specific intent to commit the offense of Capital Murder, did
then and there attempt to intentionally or knowingly cause the death of an individual,
namely, Brian Harper, and the said Brian Harper was then and there a peace officer
who was acting in the lawful discharge of an official duty, and the defendant knew
Brian Harper was a peace officer, by shooting Brian Harper with a firearm, which
said act amounted to more than mere preparation that tended but failed to effect the
commission of the offense intended; or that Appellant did then and there with the
specific intent to commit the offense of Capital Murder, did then and there attempt
to intentionally or knowingly cause the death of an individual, namely, Brian Harper,
9 and the said Brian Harper was then and there a peace officer who was acting in the
lawful discharge of an official duty, and the defendant knew Brian Harper was a
peace officer, by shooting at Brian Harper with a firearm, which said act amounted
to more than mere preparation that tended but failed to effect the commission of the
offense intended.
Intent Element
Capital murder under Texas Penal Code § 19.03(a)(1) is a "result of conduct"
offense. Kinnamon v. State, 791 S.W.2d 84 (Tex. Crim. App.1990); Morrow v. State,
753 S.W.2d 372 (Tex. Crim. App.1988). Capital murder is defined in terms of one's
intent to produce a specified result. Not only must the accused be found to have
intended to engage in the act that caused the death, he also must have specifically
intended that death result from that conduct; the mere intent to pull the trigger of a
firearm will not satisfy the statute. Kinnamon, 791 S.W.2d at 88-89.
Appellant argues there is insufficient evidence to even prove he possessed the
intent to kill Officer Harper. Appellant testified at trial. Appellant said he had never
shot a shotgun before. He saw the police officer pull up and that's when he walked
towards the policeman and he had gotten out and called me over. Appellant told him
not to come too much closer because he had experiences with police before. Harper
asked him what he was doing, and Appellant told him picking up rocks and looking
10 at a construction site. Harper said that the man was allowed to have the pictures and
that he was going to search his person and then immediately started putting his hands
in my pockets. When he had put his hand in my pocket, Appellant told him that he
was illegally searching me. Appellant raised his left hand and told him that he was
illegally searching me. Harper went to go put his hand in my pockets again. Harper
became physical and tried to apprehend Appellant. What did he do with your left
arm? He twisted it behind my back. Harper grabbed him around the throat and went
to take Appellant to the ground. Harper put his arm around Appellant’s throat, and he
had left go of my left arm to tighten his other hand. When Harper grabbed Appellant
around the throat, he was not able to breathe. Did you honestly think that your life
was in jeopardy? I believe so. Appellant pulled out a pistol and put it behind my head
with my right hand. Appellant pulled the trigger once I felt it pressed where I
assumed his shoulder would be. Were was there any intention in your at all about
killing the officer? No, sir. I was panicking. Did you -- and do you honestly believe
that you shot him in self-defense? Yes, sir. (6 RR at 8-35). Cross examination, Harper
grabbed the gun and it went off, or did you shoot him? I pulled the trigger. Appellant
did not know he was shot in his stomach until later. When he had his hand in my
pocket, I had put my hand up so that he couldn't continue to put his hand in my
pocket. He had maneuvered himself behind me at that point. After he had started
11 twisting my arm I had tried to turn towards him. I was hoping I would get a self-
defense sooner than it's been. (6 RR at 35-87). The jury was charged on the issue of
self defense. (1 CR at 144-151). Harper was choking Appellant he could not breathe
and used self defense to break Officer harper’s strangle hold from Appellant’s neck.
Simply no intent to kill Officer Harper.
Harper basically confirmed the self defense theory and did not dispute much
of Appellant’s testimony. Harper said, Appellant told him initially that he was picking
up rocks, that he liked to collect rocks and look at rocks. He asked him for some type
of identification. He told Harper he didn't have an ID card or a driver's license, but
he gave Harper his name and date of birth. At that point, he tried to walk away again;
and the alarm went off on my radio to advise me that he had an active arrest warrant.
So, Harper told him at that point, you've got a warrant for your arrest. I'm going to
detain you until we find out what the warrant is for and if they can actually confirm
the warrant. He told him he was going to place him in handcuffs and do a pat-down
search of his person. He went to take hold of him and place him in handcuffs. And he
stated to me, you're not fucking touching me, and turned and walked away. So,
Harper grabbed him by the back of his shirt again or his jacket again and attempted
to place him in handcuffs; and began a physical confrontation. He took hold of his left
wrist and went to remove my handcuffs with my right hand from my handcuff case,
12 so he could detain him in handcuffs. He probably would have done something like
this and just do like that and took him to the ground. Just a leg sweep. During the
struggle, he was able to gain his footing and stand back up, partially back up, in
attempting to flee again. So, he still have a hold of him. So, he pulled him back; and
we both fall backwards. he was laying on his back and he's laying on top of me with
his back on top of my chest. Harper claimed he was still trying to get him to calm
down and quit fighting me. At some point, he somewhere in his waistband area. And
he pulled out a pistol and reached it over his right shoulder and put it in my face.
When he saw the weapon, he pushed away basically pushed him off of me. At which
point, we both immediately jumped up as fast as we could; and when we both stood
up, we were literally face to face, within a foot of each other. When we stood up, he
did see the weapon in his hand. He saw him point it out towards me. At which time,
he grabbed a hold of the muzzle, the end of the pistol, to try to keep him from
pointing it in my direction. Did you feel it go off? I did. Did you still have a hold of
it when it went off? I did. I stumbled back a couple of feet, and he turned away from
me as if he was going to run. I stumbled back. He turned as if he was going to take
off running, and then he turned back and pointed it back in my direction. (4 RR at
121-178). Cross examination, initially upon his arrive at that point all he had nothing
but a guy walking down the street, which is perfectly legal, when he told him he was
13 going to pat him down, that's when he stated: You're not fucking touching me. So,
Harper grabbed him by the back of the collar. When he grabbed hold of him and
pulled him back towards me, because, like he stated, it wasn't a forceful jerk. He was
just trying to walk off, and he was trying to keep him from walking off. Harper was
choking him. Trying to gain control of him. Harper claimed that he wouldn't say
choking. He was trying to gain control of him. Would that be perceived as being
choked by the person whose got an arm around their neck? It could be. He couldn't
see. The only thing he saw was the barrel, muzzle end of the gun. When he saw the
gun, he pushed him to my right, basically threw him up off of me to get away from
the gun. Once we were both on our feet and he pointed it at me is when he grabbed
it. When you grabbed the gun, you grabbed the barrel of the gun. When you grabbed
the slide like that, is the gun able to activate. To my recollection, only after he shot
me when he stumbled backwards. When he was shot and stumbled backwards
basically what happened, he stumbled backwards. He turned his back to me as if he
was going to run and then spun back around and pointed the gun at me again. At
which time, he dove towards him and grabbed for the gun. (4 RR at 178-219).
The focus of this case is on Appellant’s intent, on the result of the defendant’s
action and his culpable mental state, not on the precise act or the nature of the
conduct committed by the defendant. Johnson, 364 S.W.3d at 298; Brooks, 967
14 S.W.2d at 950. The only conclusion based upon this evidence and review of the
record that there is insufficient evidence from which the trier of fact could have
determined beyond a reasonable doubt that Appellant did then and there with the
specific intent to commit the offense of Capital Murder, did then and there attempt
to intentionally or knowingly cause the death of an individual, namely, Brian Harper,
and the said Brian Harper was then and there a peace officer who was acting in the
lawful discharge of an official duty, and the defendant knew Brian Harper was a
peace officer, by shooting Brian Harper with a firearm, which said act amounted to
more than mere preparation that tended but failed to effect the commission of the
offense intended; or that Appellant did then and there with the specific intent to
commit the offense of Capital Murder, did then and there attempt to intentionally or
knowingly cause the death of an individual, namely, Brian Harper, and the said Brian
Harper was then and there a peace officer who was acting in the lawful discharge of
an official duty, and the defendant knew Brian Harper was a peace officer, by
shooting at Brian Harper with a firearm, which said act amounted to more than mere
preparation that tended but failed to effect the commission of the offense intended.
Applying, Brooks v. State, 323 S.W.3d 893,894-95 (Tex. Crim. App. 2010) (plurality
op.); id. at 926 (Cochran, J., concurring). Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.
2781. Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001). The conviction
18 should be reversed and this Court should render a judgment of acquittal. The only
conclusion that can be reached is that the said conviction should be reversed and this
Court should render a judgment of acquittal. This Court should grant a Rehearing.
IV.
Appellant files this his Motion For Rehearing due to the fact that this Court,
after having rejected the idea of Oral Argument in this attempted capital murder
appeal, has wholly rejected all of Appellant’s arguments, and refused to address all
of the merits of Appellant’s appeal; and has misconstrued Appellant’s argument that
could effect the analysis of this Court’s Opinion. Appellant argued in the instant case,
and appealed his conviction.
Appellant is in dispute with this Court’s opinion issued and requests that this
Court consider this Motion For Rehearing. Appellant’s contention is that the
arguments in this Court’s Opinion are an inaccurate interpretation and arguably
unclear interpretation of Appellant’s arguments that should merit a Rehearing.
V.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant, Brian Thomas Spinks,
prays that this Court grant his motion for rehearing and set it for submission at the
earliest possible date; that upon submission and review of the appellate record and
19 the briefs and argument of counsel, the Court find reversible error in the judgment of
the trial court and issue its opinion and judgment reversing the judgment of the trial
court; and remand the matter to the trial court for a new trial, assessing all costs of the
appeal against appellee, and order execution of the judgment of this Court in
accordance with its opinion.
Respectfully submitted,
/s/CARY M. FADEN Cary M. Faden SBN 06768725 54 Sugar Creek Center Blvd., Suite 200 Sugar Land, Texas 77478 Telephone:(281) 491-6182 Facsimile:(281) 491-0049 E-Mail: caryfaden@aol.com
Attorney For Appellant
20 CERTIFICATE OF COMPLIANCE, T.R.A.P., RULE 9.4(3)
In accordance with TEX. R. APP. P. 9.4(3), I Cary M. Faden, certify that this
is a computer generated document and I state that the number of words in this
document is approximately 4,278 words. I am relying on the word count of the
computer program used to prepare this document.
/s/CARY M. FADEN Cary M. Faden
CERTIFICATE OF SERVICE
In accordance with TEX. R. APP. P. 9.5, I, Cary M. Faden, certify that a true
and correct copy of the foregoing motion for rehearing has been served, by hand
delivery, and/or by U.S. Mail, and/or by facsimile transmittal, to Brian Thomas
Spinks; to the attorney for the State Of Texas, Jeri Yenne, District Attorney, 111 E.
Locust Street, Room 408A, Angleton, Texas 77515 on this 25th day of May, 2018.