ACCEPTED 03-15-00106-CR 4798409 THIRD COURT OF APPEALS AUSTIN, TEXAS 4/7/2015 5:47:14 PM JEFFREY D. KYLE CLERK NO. 03-15-00106-CR
FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS IN THE COURT OF APPEALS 4/7/2015 5:47:14 PM FOR THE JEFFREY D. KYLE THIRD SUPREME JUDICIAL DISTRICT Clerk AT AUSTIN, TEXAS
BRITTANY NICOLE WHITE, Appellant
vs.
THE STATE OF TEXAS, Appellee
Appeal from the County Court at Law Cause No. M30224 Burnet County, Texas The Honorable W.R. Savage, Judge Presiding
APPELLANT'S BRIEF
Gary E. Prust State Bar No. 24056166 1607 Nueces Street Austin, Texas 78701 (512) 469-0092 Fax: (512) 469-9102
ATTORNEY FOR APPELLANT IDENTITY OF THE PARTIES
APPELLANT: Brittany Nicole White 9108 Laguna Woods Dr. Austin, TX 78717
TRIAL COUNSEL FOR APPELLANT: Revis Kanak Burnet County Public Defender’s Office 1008 N. Water St. Burnet, Texas 78611
APPELLATE COUNSEL FOR APPELLANT: Gary E. Prust Law Office of Gary E. Prust 1607 Nueces St. Austin, TX 78701
TRIAL COUNSEL FOR APPELLEE: Colleen Davis Burnet County Attorney’s Office 220 S. Pierce St. Burnet, TX 78611
APPELLATE COUNSEL FOR APPELLEE: Colleen Davis Burnet County Attorney’s Office 220 S. Pierce St. Burnet, TX 78611
ii TABLE OF CONTENTS
Identity of the Parties ................................................................................................ ii
Table of Contents ..................................................................................................... iii
Table of Authorities ................................................................................................. iv
Statement of the Case ............................................................................................... 1
Statement Regarding Oral Argument ....................................................................... 2
Issues Presented ........................................................................................................ 3
The trial court erred when it denied Appellant’s motion for a directed verdict because the State failed to introduce evidence of each essential element of the offense.
The trial court erred in assessing attorney’s fees because an affidavit of indigence was filed and no finding was made that Appellant’s financial circumstances have materially changed.
Statement of the Facts ............................................................................................... 4
Summary of the Argument ....................................................................................... 7
Argument .................................................................................................................. 8
Prayer ...................................................................................................................... 14
Certificate of Service .............................................................................................. 15
Certificate of Compliance ....................................................................................... 15
iii TABLE OF AUTHORITIES
CASES Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................................. 9, 10
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) ........................................ 9
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1971)................................... 9, 10
Key v. State, 800 S.W.2d 229 (Tex. App. – Tyler 1990, pet. ref’d) ............. 9, 10, 11
King v. State, 76 S.W.3d 659 (Tex.App. – Houston [14th Dist.] 2002, no pet.) .................. 9
Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) ...................................... 13
Mims v. State, 434 S.W.3d 265 (TexApp. – Houston [1st Dist.] 2014, no pet.) ........ 8, 10, 12
Rollerson v. State, 227 S.W.3d 718 (Tex. Crim. App. 2007) ................................... 9
State v. Zoch, 846 S.W.2d 588 (Tex. App. – Houston [1st Dist.] 1993, no pet.) ................ 10
Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013) ....................................... 13
STATUTES TEX. PEN. CODE § 38.05(a) ....................................................................................... 8
TEX. PEN. CODE § 38.05(a)(1)......................................................................... 1, 9, 10
TEXAS CODE CRIM. PROC. art. 26.05(g) ............................................................ 12, 13
CONSTITUTIONAL PROVISIONS UNITED STATES CONST. Amend. XIV ....................................................................... 9
iv STATEMENT OF THE CASE
Nature of the case: This is an appeal from a criminal conviction for
hindering arrest of another by harboring or
concealing them, in violation of § 38.05(a)(1) of
the Texas Penal Code.
Course of the proceedings: Appellant was arrested October 21, 2013. RR Vol.
I 7. The complaint and information were filed
March 14, 2014. CR 4-5. A one-witness bench
trial was conducted November 13, 2014. See RR
Vol. I. The trial court found Appellant guilty of
hindering apprehension. CR 12-14.
Trial court’s disposition: The trial court assessed punishment at five days’
confinement, $250 in fine, $247 in court costs, and
$250 in court appointed attorney’s fees.
1 STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument. Appellant submits the issue in this
case is not complex, novel, or unique. Accordingly, Appellant believes the Court
does not need oral argument of the parties to help guide the Court’s decision.
2 ISSUES PRESENTED
ISSUE I.
The trial court erred when it denied Appellant’s motion for a directed
verdict because the State failed to introduce of each essential element of the
offense.
ISSUE II.
The trial court erred in assessing attorney’s fees because an affidavit of
indigence was filed and no finding was made that Appellant’s financial
circumstances have materially changed.
3 STATEMENT OF FACTS
Appellant, Brittany Nicole White, was charged by information on March 14,
2014 with the offense of harboring or concealing Cody Harper with the intent to
hinder his arrest for the offense of “FTA-DWI”. CR 5. The criminal act is alleged
to have occurred on October 21, 2013. Id. Appellant applied for court appointed
counsel, which was granted. CR 7, 9; see also CR 10.1
The case proceeded to jury trial on November 14, 2014. See RR Vol. I.
Officer James Cole with the Marble Falls Police Department was the only witness.
Id. He testified that on October 21, 2013, he pulled over Appellant for an expired
inspection sticker and an unconfirmed insurance when he did a license plate check.
RR Vol. I 7-9. Counsel for Appellant objected to the stop and the introduction of
any evidence obtained during the stop. Id. at 10-11. The court overruled the
objection finding there was reasonable suspicion for the offense of driving with an
invalid inspection sticker. Id. at 26.
Officer Cole then testified Appellant pulled over quickly, without issue. Id.
When the officer approached, Appellant was nervous, her hands and voice shaky.
Id. The officer found this to be exaggerated nervousness. Id. at 27. She told the
officer she had never been stopped before. Id. She then told the officer, in response 1 This form at page 10 of the clerk’s record is entitled “Waiver of Counsel” and contains a warning that the accused will not be responsible for attorney fees if the applicant prevails. But it also says the citizen accused will be obligated to repay costs for counsel in the event of a plea agreement or “verdict”. It does not specify whether it only applied to a guilty verdict or to both guilty and not guilty verdicts.
4 to questioning, the front passenger was a person named “Timothy Sanders”. Id.
After that, the officer then began to speak with the passenger.
The passenger asked the officer why he referred to him at “Mr. Sanders” and
said his name was “Dallas Harper”. Id. at 27-28. The officer, however, knows a
person with the name “Dallas Harper”, and the passenger did look like him. Id.
Officer Cole reasoned that because Appellant lied to him he asked to search
her car, to which she consented. Id. at 29. He did not find anything illegal, but he
did find an offender card belonging to “Cody Harper”. Id. This card had a picture
which resembled the passenger. Id. Officer Cole then called dispatch to obtain a
description of Cody Harper which matched the passenger at the scene. Id. Dispatch
also added that Mr. Harper had a warrant in Burnet County. Id.
Officer Cole then detained Mr. Harper who confessed to being Cody Harper.
Id. at 30. He arrested the passenger then went back to arrest Appellant. Id. The
officer further testified the “only” thing Appellant did was provide a false name for
Mr. Harper.
Appellant requested a directed verdict after the close of the State’s case-in-
chief. Id. at 32-33. The State argued Appellant harbored or concealed Mr. Harper
by lying. Id. at 33. Appellant argued Appellant did not conceal Mr. Harper because
she did not physically hide him. Id. at 34-35. Specifically, Appellant argued the
State charged the offense under subsection 1 of 38.05, Texas Penal Code and not
5 under subsection 2. Id. at 34-36.
The trial court found the issue was whether Appellant’s actions constituted
harboring Cody Harper. Id. at 36-37. The court went on to find Appellant
concealed Mr. Harper by lying about his identity. Id. at 38. The trial court also
found the “ .. commonsense definition of harboring someone is to have them in
your control and then to misidentify him to a peace officer …”. Id. at 39.
After finding guilt, the court assessed Appellant’s punishment at five days in
the county jail, a $250 fine, and $247 in court costs. Id. at 41. The court also gave
Appellant five days credit for the time she served and appears to have run the fine
and costs concurrent with the back time. Id. The court then assessed $250 in
attorney’s fees.
6 SUMMARY OF THE ARGUMENT
The evidence in the case is not disputed. The directed verdict was denied in
error. The State’s information charged Appellant intentionally or knowingly
hindered the apprehension of Cody Harper “for the offense of FTA-DWI”. At no
point did the State introduce evidence of the “FTA” or “DWI”. At no point did the
State introduce evidence the warrant for Mr. Harper was for “an offense”. Because
the State alleged Appellant intentionally or knowingly hindered Mr. Harper’s arrest
for an offense, of which no evidence was introduced, the denial of the directed
verdict was error.
ISSUE II
Finally, the court assessed attorney’s fees against Appellant for her court
appointed counsel. Appellant completed an application for appointed counsel.
There was no finding of any material change in her financial condition.
Accordingly, it was error to assess attorney’s fees against her.
7 ARGUMENT
The trial court erred when it denied Appellant’s motion for a directed
verdict because the State failed to introduce of each essential element of the
Standard of Review
When reviewing the sufficiency of the evidence, the reviewing court will
view 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 beyond a reasonable doubt. Mims v. State, 434 S.W.3d 265, 273 (Tex. App.
– Houston [1st Dist.] 2014, no pet.).
Law Applicable
A person commits the offense of hindering apprehension if the person “with
intent to hinder the arrest, prosecution, conviction, or punishment of another for an
offense …
(1) harbors of conceals the other;
(2) provides or aids in providing the other with any means of avoiding arrest or effecting escape; or
(3) warns the other of impending discovery or apprehension.”
Tex. Pen. Code § 38.05(a)(1)-(3). Whether the accused possessed the requisite
8 intent must be established by circumstantial evidence. King v. State, 76 S.W.3d
659, 661 (Tex.App. – Houston [14th Dist.] 2002, no pet.).
“ .. [L]ying to the police does not, ipso facto, satisfy the elements of Section
38.05.” King v. State, 76 S.W.3d at 661. Under Tex. Pen. Code § 38.05(a)(1), the
State is required to allege and prove a person was sought for an offense. Key v.
State, 800 S.W.2d 229, 231 (Tex. App. – Tyler 1990, pet. ref’d); King, 76 S.W.3d
at 662.
A criminal defendant turned appellant is permitted to raise an issue on
appeal that a verdict is against the great weight of the evidence, as a constitutional
due process complaint. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781
(1971); UNITED STATES CONST. Amend. XIV. For years, under Texas law, this type
of appellant could raise both legal sufficiency and factual sufficiency complaints.
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Texas Appellate courts,
however, recognized the Clewis factual sufficiency was barely distinguishable
from the Jackson legal sufficiency. See, e.g., Rollerson v. State, 227 S.W.3d 718,
724 (Tex. Crim. App. 2007). The Texas Court of Criminal Appeals, declared
“there is … no meaningful distinction between the Jackson v. Virginia legal-
sufficiency standard and the Clewis factual-sufficiency standard, and these two
standards have become indistinguishable.” Brooks v. State, 323 S.W.3d 893, 902
(Tex. Crim. App. 2010). The Court stated, “We ... decide that the Jackson v.
9 Virginia legal-sufficiency standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a
reasonable doubt.” Id. at 895. That standard is characterized as, “Considering all of
the evidence in the light most favorable to the verdict, was a jury rationally
justified in finding guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
at 319.
A challenge to the trial court’s ruling on a request for a directed verdict is a
challenge to the sufficiency of the evidence to support the conviction. Mims v.
State, 424 S.W.3d 265, 273 (Tex. App. – Houston [1st Dist.] 2014, no pet.).
Argument
The State failed to introduce any testimony or evidence of an offense for
which Cody Harper was avoiding detection. Because “an offense” is an essential
element of § 38.05(a)(1), and no evidence was introduced, the verdict cannot be
sustained by the evidence. See Key, 880 S.W.2d at 231; see also State v. Zoch, 846
S.W.2d 588, 589 (Tex. App. – Houston [1st Dist.] 1993, no pet.).
The State failed in its burden because it only elicited testimony that a
warrant was issued for Mr. Harper, and he had an “offender card”. When
questioned, the sole witness testified that the description from dispatch of Cody
Harper matched the individual at the scene, and they added a warrant was out for
10 Mr. Harper. RR Vol. I 29. The officer then told both that Cody Harper had a
warrant and if they lied to him, he would charge both. Id. at 30. No other evidence
was introduced to establish the warrant was for an offense.
In Key v. State, Key was tried for harboring or concealing with the intent of
hindering the arrest or prosecution of Mr. Collingsworth. 800 S.W.2d at 230. The
facts in the case showed Collingsworth pleaded guilty and was placed on probation
for an offense. Id. Further, the evidence showed a warrant issued for his arrest on a
motion to revoke probation. Id. Because there was no “offense” for which
Collingsworth was sought, the evidence to convict Key was insufficient, and the
court ordered an acquittal. Id. at 231.
The reasoning in Key is similar to the case at bar. An “offense” is a
necessary element. A warrant may be issued for any number of reasons, and are
not exclusive to criminal offenses. Further, the State did not elicit testimony about
what an offender card is. Some are for parolees, some for probation. The warrant
referred to in evidence could have easily been for a parole or probation violation.
But no such evidence is in the record. The State’s failure to introduce any scintilla
of evidence the warrant was for “an offense” is a fatal flaw in its case-in-chief.
The trial court erred when it denied Appellant’s request for directed verdict.
RR Vol. I 33. The complete absence of an essential elements from evidence after
the State rests entitled Appellant to relief. In the alternative, the verdict is not
11 supported by the evidence adduced at trial because of the complete failure by the
State to introduce evidence Mr. Harper was sought for “an offense”. For no
rational juror could find guilt where there is no evidence of an essential element.
Accordingly, Appellant requests this Honorable Court to render a judgment
of acquittal.
The trial court erred in assessing attorney’s fees because an affidavit of
indigence was filed and no finding was made that Appellant’s financial
When reviewing the sufficiency of the evidence, the reviewing court will
view all of the evidence in the light most favorable to the finding to determine
whether any rational trier of fact could have found the essential elements. Mims v.
State, 434 S.W.3d at 273.
The Texas Code of Criminal Procedure art. 26.05(g) provides the trial court
may order an indigent defendant to pay part or all of the costs of appointed counsel
if the court determines the defendant has the financial resources to do so.
No objection need be raised at trial to an insufficiency argument on appeal
and such error is not waived by the failure to do so. Mayer v. State, 309 S.W.3d
12 552, 556 (Tex. Crim. App. 2010). Claims of financial resources and ability to pay
in the context of Tex. Code. Crim. Proc. art. 26.05(g) following a judgment are
claims of insufficient evidence. Id.
Where an appellant does not complain about court appointed attorney’s fees
in the direct appeal, she is procedurally defaulted from raising the claim in a later
action. Wiley v. State, 410 S.W.3d 313, 321 (Tex. Crim. App. 2013).
Appellant was found indigent and received appointed counsel. CR 7-9. The
record does not reflect any challenge to her indigent status. Additionally, there is
no showing Appellant has the financial resources to offset in part or in whole the
costs of legal service provided. Absent such finding, the trial court’s order
directing Appellant to pay $250 in appointed attorney’s fees is in error. See Mayer
v. State, 309 S.W.3d at 556.
Accordingly, if the Court does not render acquittal as prayed for in Issue I,
Appellant requests this Honorable Court remand this case to the trial court with an
order directing the clerk of the court to delete the portion of the judgment and/or
bill of costs ordering Appellant to pay $250 in attorney fees.
13 PRAYER
Appellant respectfully prays that this Honorable Court grant the relief
requested in Issue I and find the verdict is not supported by the evidence adduced
at trial. In the alternative, Appellant prays this Honorable Court order the omission
of the ordered attorney’s fees for the reasons stated above. Appellant prays for any
other relief to which she may be entitled in equity or at law.
Respectfully submitted,
/s/ Gary E. Prust
Gary E. Prust State Bar No. 24056166 1607 Nueces St. Austin, Texas 78701 (512)469-0092 Fax (512)469-9102 gary@prustlaw.com Attorney for Brittany Nicole White
14 CERTIFICATE OF SERVICE
In compliance with Rule 9.5(d) of the Texas Rules of Appellate Procedure, the undersigned attorney certifies that a true and correct copy of the foregoing Brief was served upon Ms. Colleen Davis Assistant Burnet County Attorney office via electronic transmission through efiletexas.gov on this 7th day of April, 2015.
/s/ Gary Prust Gary E. Prust
CERTIFICATE OF COMPLIANCE
I hereby certify Appellant’s Brief contains 2195 words and is in compliance with TEX. R. APP. PROC. 9.4(2)(B).