Elton Anthony Branch v. State

• Court: Court of Appeals of Texas
• Decided: February 6, 2015
• Docket: 04-14-00644-CR
• Status: Published

Opinion

ACCEPTED 04-14-00644-CR FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 2/6/2015 8:41:37 AM KEITH HOTTLE CLERK No. 04-14-00644-CR

FILED IN 4th COURT OF APPEALS ****************************************************************************** SAN ANTONIO, TEXAS 2/6/2015 8:41:37 AM IN THE COURT OF APPEALS KEITH E. HOTTLE Clerk FOR THE

FOURTH SUPREME JUDICIAL DISTRICT OF TEXAS

AT SAN ANTONIO, BEXAR COUNTY, TEXAS

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ELTON ANTHONY BRANCH APPELLANT

v.

THE STATE OF TEXAS

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APPEALED FROM CAUSE NO. 2013-CR-7555 IN THE 399TH DISTRICT COURT BEXAR COUNTY, TEXAS

****************************************************************************** BRIEF OF APPELLANT ****************************************************************************** JAMES C. OLTERSDORF 410 South Main St., Suite 205 San Antonio, Texas 78204 (210) 270-8588 SBN: 15278630 Attorney for Appellant STATEMENT OF PARTIES

In accordance with Texas Rule of Appellate Procedure 72 (a), for the purpose of disqualification and/or recusal of members of this Honorable Court, the following is a complete list of those parties involved in the instant action.

Mr. James C. Oltersdorf SBN: 15278630 410 South Main St., Suite 205 San Antonio, TX 78204 (210) 270-8588 Attorney for Appellant

Mr. Steven Spier SBN: 24047533 Mr. Daniel Walker SBN: 24070810 Bexar County District Attorney’s Office 101 W Nueva, Fourth Floor San Antonio, TX 78205-2260 (210) 335-2311 Appearing for the State

Mr. Sean M. Henricksen SBN: 24084820 111 Soledad Suite 116 San Antonio, TX 78205 (210) 900-2806 Attorney for Defendant

i No. 04-14-00644-CR

****************************************************************************** IN THE COURT OF APPEALS FOR THE FOURTH SUPREME JUDICIAL DISTRICT OF TEXAS AT SAN ANTONIO, BEXAR COUNTY, TEXAS ****************************************************************************** ELTON ANTHONY BRANCH, APPELLANT

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APPEALED FROM CAUSE NO. 2013-CR-7555 IN THE 399TH DISTRICT COURT BEXAR COUNTY, TEXAS

****************************************************************************** BRIEF OF APPELLANT ******************************************************************************

TO THE HONORABLE COURT OF APPEALS,

COMES NOW ELTON ANTHONY BRANCH, Appellant, by and through his attorney of

record, and submits this Brief pursuant to the provisions of the Texas Rules of Appellate Procedure

in support of his appeal from a conviction for the offense of Assault with a Deadly Weapon in the

3996th District Court of Bexar County, Texas, in Cause No. 2013-CR-7555. PRELIMINARY STATEMENT OF CASE

This is an Appeal from a trial for the offense of Assault with a Deadly Weapon. The jury

found the Appellant guilty on August 22, 2014. Punishment was assessed at 25 years in the Texas

Department of Corrections by the jury on August 23, 2014.

This case was called to trial on August 20, 2014

Appellant timely filed Notice of Appeal.

ii TABLE OF CONTENTS

STATEMENT OF THE FACTS .....................................................................................................1

POINT OF ERROR 1 ......................................................................................................................3

Sufficiency of evidence

POINT OF ERROR 2 ......................................................................................................................5

Prejudicial photographs were admitted at trial

POINT OF ERROR 3 ......................................................................................................................6

Hearsay statements were admitted at trial

CONCLUSION ................................................................................................................................6

PRAYER ..........................................................................................................................................7

CERTIFICATE OF SERVICE ........................................................................................................7

iii TABLE OF AUTHORITIES

Cases Page Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001) ...................................................... 4 Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) ......................................................4 Ates v. State, 21 S.W.3d 384, 390 (Tex.App.- Tyler 2000; no pet.) ................................................4 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) ................................................................4 Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). .......................................................4 Carrizales v. State, 414 S.W.3d 737, 742 (Tex.Crim.App. 2013) .................................................5 Powell v. State, 194, S.W.3d 503, 507 (Tex.Crim.App. 2006) ........................................................5 Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012) ............................................................5 Mayberry v. State, 351 S.W.3d 507, 509 (Tex.App. – San Antonio 2011; pet. ref’d) ....................5 Moreno v. State, 755 S.W.2nd 866 (Tex.Crim.App. 1988) ..............................................................5 Long v. State, 823 S.W.2nd 259 (Tex.Crim.App. 1991 p. 272) ........................................................6

iv No. 04-14-00644-CR

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IN THE COURT OF APPEALS

FOR THE

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ELTON ANTHONY BRANCH, APPELLANT

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APPEALED FROM CAUSE NO. 2013-CR-7555 IN THE 399TH DISTRICT COURT BEXAR COUNTY, TEXAS

****************************************************************************** BRIEF OF APPELLANT ******************************************************************************

STATEMENT OF THE FACTS

On June 6, 2013, at the Kiolbassa Provision Company on South Brazos Street in San

Antonio, Texas, Clifton Wallace, a security guard, was making his rounds at 11:00 p.m. In the

parking lot he observed a man inside a vehicle. Mr. Wallace had shortly before observed the same man enter into a maintenance area at the company. The car Mr. Wallace observed the man

in had most probably not been broken into because keys belonging to the car were found later on

the ground outside the car.

Mr. Wallace approached the man inside the vehicle and asked him what he was doing. The

man said the car was his, and Mr. Wallace asked for identification. Mr. Wallace did not notice

what was in the man’s hands when he exited the car, but they began wrestling as the man tried to

leave. Two other employees heard Mr. Wallace yell for help, and the employees, Saul Monsivais

and Steve Moreno, observed part of the confrontation as they exited the company building. Both

employees gave chase, but lost sight of the man they had seen with Mr. Wallace.

The police and EMS were called, and a quadrant was set up by the police around the area.

Appellant was arrested a few blocks away and returned to the scene, where a one-on-one

identification procedure was done by Mr. Monsivais and Mr. Moreno. Appellant’s finger prints

were found on the vehicle.

Mr. Wallace had it pointed out to him by Mr. Moreno that he was bleeding on his lower

side. Mr. Wallace had not noticed a weapon or felt being stabbed.

−2− APPELLANT’S POINT OF ERROR NO. 1

Law and Argument

The evidence is not legally sufficient to support Appellant’s Aggravated Assault with a

Deadly Weapon conviction. When Appellant was arrested, there was no blood on him from the

complainant. There were only minor scrapes on his back as shown by the pictures admitted into

evidence and the arresting officer’s testimony. (RR Vol. 3, p. 39-41)

Mr. Monsivais saw part of the scuffle from 10 to 15 feet away, and his description was “a

tall, dark man.” He could not give the man’s age, and could only say he was taller than 5’6”, Mr.

Monsivais’ own height. (RR Vol. 3, p. 180) Mr. Monsivais said the man wore short hair, a white

shirt with straps and white basketball shorts. He remembered tattoos. (RR Vol. 3, p. 181-182)

When Mr. Monsivais approached the scuffle, the man ran away. Mr. Monsivais gave chase in his

truck, but lost the man. (RR Vol. 3, p 182, 186)

A knife was found in the parking lot; however, it belonged to another employee of the

company. (RR Vol. 4, p. 42-43) There was no blood on the knife, which was admitted as State’s

#7.0 (RR Vol. 4, p. 42) There was testimony from the owner of the knife that you would need

two hands to open it, use it. (RR Vol. 4, p. 93)

Appellant was arrested as the intersection of Saltillo and South Brazos, several blocks

away. He immediately surrendered without incident. Appellant is an African American, and he

was wearing white short when arrested. (RR Vol. 4, p. 62) He was carrying sunglasses and a car

stereo remote. (RR Vol. 4, p. 63)

Steve Moreno, the other employee who observed the scuffle, was 25 to 30 feet away. (RR

Vol. 3, p. 146) He ran toward Mr. Wallace and saw no actual cut or stab wound, but saw blood.

−3− (RR Vol. 3, p. 158)

The finger prints found on the car do not prove that the Appellant was with the victim

during the stabbing. (RR Vol. 4, p. 159) They are not evidence that Appellant stabbed the victim

except by an inference that the Appellant was the perpetrator of the car burglary and then working

backwards. The evidence does not prove that the Appellant had an opportunity to stab the victim.

Instead, the finger prints only prove that Appellant was present at the scene, but mere presence is

not enough to prove guilt. Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001); Medina

v. State, 7 S.W.3d 641 (Tex.Crim.App. 1996)

For example, courts have upheld murder convictions based solely on circumstantial

evidence, such as in this case, for cases that have involved proof of motive in addition to other

incriminating circumstances. Ates v. State, 21 S.W.3d 384, 390 (Tex.App.- Tyler 2000; no pet.)

The State must prove at trial Elton Branch used and exhibited a deadly weapon, a knife,

that was capable of causing death or serious bodily injury and that he intentionally caused bodily

injury to Clifton Wallace, complainant, by cutting and stabbing the complainant with such deadly

weapon.

When reviewing the sufficiency of the evidence in a criminal case, we apply the Supreme

Court’s legal sufficiency standard as set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781

(1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). Applying the Jackson

standard, we view the evidence in the light most favorable to the verdict and determine whether

any rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex.Crim.App. 2013). We are

−4− permitted to consider all of the evidence in the record, whether admissible or inadmissible, when

making our determination. Powell v. State, 194, S.W.3d 503, 507 (Tex.Crim.App. 2006).

Appellate Courts must consider all of the evidence presented, and presume the factfinder resolved

any conflicts in favor of the verdict and defer to that determination. Wise v. State, 364 S.W.3d

900, 903 (Tex.Crim.App. 2012). This presumption includes conflicting inferences from

circumstantial evidence. Mayberry v. State, 351 S.W.3d 507, 509 (Tex.App. – San Antonio 2011;

pet. ref’d)

The role of the Appellate Court is that of a due process safeguard ensuring the rationality of

the trier of fact’s findings of the essential elements of the offense beyond a reasonable doubt.

Moreno v. State, 755 S.W.2nd 866 (Tex.Crim.App. 1988)

APPELLANT’S POINT OF ERROR NO. 2

Appellant was denied a fair trial by the admission of gruesome photographs which were

also cumulative and whose probative value was greatly outweighed by their prejudicial effect.

Appellant’s attorney properly objected to the photographs. (RR Vol. 3, p. 79-80)

The State responded to the objection by stating that the photographs depicted different

angles as well as different stages of treatment that the victim received. (RR Vol. 3, p. 80)

In order for photographs to be relevant under a Rule 403 analysis, they must relate to

identification and cause of injury. Factors cited are the number offered, gruesomeness, detail,

size, black and white or color. Long v. State, 823 S.W.2nd 259 (Tex.Crim.App. 1991 p. 272)

APPELLANT’S POINT OF ERROR NO. 3

−5− Law and Argument

The State offered hearsay statement from the complainant that were properly objected to

by Appellant. (RR Vol. 3, p. 71-73)

Mr. Wallace was allowed to recount, over objection, statements made outside the

courtroom to Steve Moreno. (RR Vol. 3, p. 72) Appellant’s attorney objected that such

statement was offered for its truth and was a prior out-of-court statement. (RR Vol. 3, p. 72)

CONCLUSION

The evidence is not sufficient to support the verdict of guilty because there is no evidence

of a weapon used by Appellant to harm complainant. No weapon was found with blood or prints

on it, and complainant and witnesses never saw or felt any injuries until later. Appellant’s arrest

was based on circumstantial evidence and an almost non-existent description of assailant,

including no race given. Photographs of a prejudicial nature were admitted, along with hearsay

statements.

−6− PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Honorable Court

will remand his case to the Court below for a new trial.

_______________________________________ /S/JAMES C. OLTERSDORF Heritage Plaza Building 410 South Main, Suite 205 San Antonio, Texas 78204 (210) 270-8588 Bar No. 15278630 ATTORNEY FOR APPELLANT

Certificate of Service

I HEREBY CERTIFY that a true and correct copy of the above and foregoing Brief for Appellant has been hand-delivered to the Bexar County District Attorney’s Office, Appellate Section, 300 Dolorosa St., 4th Floor, San Antonio, Texas 78205, on this 5th day of February, 2015.

__________________________________________ /S/JAMES C. OLTERSDORF Attorney for Appellant

−7−