ACCEPTED 12-15-00224-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 11/2/2015 12:00:00 AM Pam Estes CLERK
No oral argument requested CASE NO. 12-15-00224-CR RECEIVED IN IN THE 12th COURT OF APPEALS TYLER, TEXAS 10/31/2015 3:33:19 PM TWELFTH COURT OF APPEALS PAM ESTES Clerk TYLER, TEXAS
_______________________________
FREDRICK HARRIS STRALOW, Appellant vs. THE STATE OF TEXAS, Appellee _______________________________
On Appeal from the County Court at Law No. 2 Henderson County, Texas
(Trial Court Case Number: 2014-0626CL2)
Honorable Nancy Adams Perryman, Judge Presiding
AMENDED BRIEF OF APPELLANT
Linda A. Altier Altier Law Offices 1527 E. Fifth St. Tyler, Texas 75701 Tel: 903-595-4232 Fax: 903-595-0031 e-mail: altierlaw@gmail.com State Bar of Texas No.: 00783541
Attorney for Appellant, Fredrick Harris Stralow IDENTITIES OF PARTIES AND COUNSEL
State of Texas, Appellee Prosecutor in Trial Court
Mr. Fredrick Harris Stralow, Appellant Defendant in Trial Court
TRIAL COURT COUNSEL
Mr. Bill C. Stephens, Attorney for Defendant 433 North Gun Barrel Lane Gun Barrel, Texas 75156-3731
Mr. Barry Lee Spencer, Jr., Attorney for State 100 E. Tyler St., Room 100 Athens, Texas 75751
Mr. Daniel Barnes, Attorney for State 100 E. Tyler St., Room 100 Athens, Texas 75751
APPELLATE COUNSEL
Ms. Linda Altier, Attorney for Appellant 1527 E. Fifth St. Tyler, Texas 75701
Mr. Barry Lee Spencer, Attorney for State 100 E. Tyler St., Room 100 Athens, Texas 75751
i TABLE OF CONTENTS
Identity of Parties and Counsel ……………………………………………………i
Index of Authorities ………………………………………………………………iii
Statement of the Case ……………………………………………………………..2
Statement of the Jurisdiction . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 2
Issues Presented ……………………………………………………………………3
POINT OF ERROR:
THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO REJECT APPELLANT’S SELF-DEFENSE PLEA AND SUPPORT THE JURY’S FINDING OF GUILT.
Statement of Facts ………..……………………………………………………….3
Point of Error Restated….. …………………………………..……………………3
Summary of the Argument .………………………………………………………..3
Argument and Authority ..………………………………………………………….4
Certificate of Service.………………………………………………………………6
Certificate of Compliance…..………………………………………………………7
ii INDEX OF AUTHORITIES
CASES: Page
Jackson v. Virginia, 443 U.S. 307; 99 S.Ct. 2781. . .…………….……………….5
Smith v. State, 355 S.W.3d 138(Tex.App-Houston [1st Dist.] 2011, pet.ref’d) . . . .5
Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App.2003)…………………………. .4
STATUTES AND RULES:
Texas Penal Code Ann. §9.31 (a). . . . . . . . . . . . . . . .….…………………… . . . 4
iii CASE NO. 12-15-00224-CR
IN THE
TWELFTH COURT OF APPEALS
TYLER, TEXAS
FREDRICK HARRIS STRALOW, Appellant vs. THE STATE OF TEXAS, Appellee _______________________________
On Appeal from the County Court at Law No. 2 Henderson County, Texas
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW FREDRICK HARRIS STRALOW, hereinafter
sometimes referred to as Appellant, and submits this his Amended Brief on Appeal
in the above entitled and numbered Cause, pursuant to the provisions of the Texas
Rules of Appellate Procedure. Appellant hereby waives oral argument.
1 STATEMENT OF THE CASE
On October 1, 2014, Mr. Fredrick Harris Stralow, hereinafter sometimes
referred to as Appellant, was charged by Complaint and Information with Assault
Causing Bodily Injury to a Family Member (CR 1:1-2). On May 11, 2015, a jury
found Appellant guilty as charged in the Information (CR 1:38). On July 22, 2015
the Court sentenced Appellant to three hundred sixty five (365) days confinement
in the Henderson County Justice Center probated for twenty four (24) months
community supervision, with special conditions of twenty (20) days in jail to be
completed on weekends (CR 1:44-48). Appellant filed his Notice of Appeal on
August 27, 2015 (CR 1:68).
STATEMENT OF JURISDICTION
Therefore, the Twelfth Court of Appeals holds jurisdiction.
Note: For purposes of this Appeal Brief, all references to the Clerk’s Record will be noted as “CR,” followed by the volume number and page number. References to the Reporter’s Record will be noted as “RR,” followed by the volume number, page number and line as necessary. Any emphasis added by this writer will be noted as same immediately following the word or phrase emphasized by italics. Where two or more points of error involve the same facts, they will be combined and argued together as permitted by the Texas Rules of Appellate Procedure.
2 ISSUES PRESENTED
THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO REJECT APPELLANT’S SELF-DEFENSE PLEA AND SUPPORT THE JURY’S FINDING OF GUILT. STATEMENT OF FACTS
Fredrick Harris Stralow was convicted of Assault Causing Bodily
Injury to a Family Member in a trial by jury involving an altercation with his 24
year old sister, Stephanie Nicole Duggan. Appellant, Mr. Stralow, plead
self-defense against Ms. Duggan’s aggression against him. Ms. Duggan testified
she yelled and cursed at Mr. Stralow for bringing to her attention the mess her
eleven month old child had caused. She further testified that her actions escalated
the situation when she pushed Mr. Stralow with her hands around his neck. Mr.
Stralow testified the choke was hard enough to make him stop breathing and at this
point he struck her in self-defense. The State did not provide the jury with any
evidence to disprove Appellant’s self-defense plea.
POINT OF ERROR (Restated):
THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO REJECT APPELLANT’S SELF-DEFENSE PLEA AND SUPPORT THE JURY’S FINDING OF GUILT.
SUMMARY OF THE ARGUMENT
The evidence presented at trial was factually and legally insufficient for a
3 jury to find beyond a reasonable doubt that Appellant was guilty. Appellant
contends that the evidence the State presented at trial was insufficient to support
the jury’s rejection of his self-defense claim.
ARGUMENT AND AUTHORITY
Appellant argues that the evidence at trial showed that he was justified in
defending himself when Ms. Stephanie Duggan choked him on October 1, 2014.
Tex. Penal Code Ann. § 9.31 (a) states in part, “A person is justified in using force
against another when and to the degree the actor reasonable believes the force is
immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force.” Appellant met his burden to produce evidence in support of
his claim of self-defense by the following testimony: Ms. Stephanie Duggan
testified that she escalated the argument when she yelled and cursed at Appellant
(RR 2:66) and put her hands on his throat and pushed him (RR 2:83). Appellant
testified that Ms. Duggan choked him so hard that it hurt and it was hard enough to
make him stop breathing (RR 2:125). Appellant admitted that when Ms. Duggan
grabbed him by the throat with both hands, he at that time reached over and hit her
one time (RR 2:116). The State failed to provide the jury with controverting
evidence to dispute Appellant’s self-defense. In Zuliani v.
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ACCEPTED 12-15-00224-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 11/2/2015 12:00:00 AM Pam Estes CLERK
No oral argument requested CASE NO. 12-15-00224-CR RECEIVED IN IN THE 12th COURT OF APPEALS TYLER, TEXAS 10/31/2015 3:33:19 PM TWELFTH COURT OF APPEALS PAM ESTES Clerk TYLER, TEXAS
_______________________________
FREDRICK HARRIS STRALOW, Appellant vs. THE STATE OF TEXAS, Appellee _______________________________
On Appeal from the County Court at Law No. 2 Henderson County, Texas
(Trial Court Case Number: 2014-0626CL2)
Honorable Nancy Adams Perryman, Judge Presiding
AMENDED BRIEF OF APPELLANT
Linda A. Altier Altier Law Offices 1527 E. Fifth St. Tyler, Texas 75701 Tel: 903-595-4232 Fax: 903-595-0031 e-mail: altierlaw@gmail.com State Bar of Texas No.: 00783541
Attorney for Appellant, Fredrick Harris Stralow IDENTITIES OF PARTIES AND COUNSEL
State of Texas, Appellee Prosecutor in Trial Court
Mr. Fredrick Harris Stralow, Appellant Defendant in Trial Court
TRIAL COURT COUNSEL
Mr. Bill C. Stephens, Attorney for Defendant 433 North Gun Barrel Lane Gun Barrel, Texas 75156-3731
Mr. Barry Lee Spencer, Jr., Attorney for State 100 E. Tyler St., Room 100 Athens, Texas 75751
Mr. Daniel Barnes, Attorney for State 100 E. Tyler St., Room 100 Athens, Texas 75751
APPELLATE COUNSEL
Ms. Linda Altier, Attorney for Appellant 1527 E. Fifth St. Tyler, Texas 75701
Mr. Barry Lee Spencer, Attorney for State 100 E. Tyler St., Room 100 Athens, Texas 75751
i TABLE OF CONTENTS
Identity of Parties and Counsel ……………………………………………………i
Index of Authorities ………………………………………………………………iii
Statement of the Case ……………………………………………………………..2
Statement of the Jurisdiction . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 2
Issues Presented ……………………………………………………………………3
POINT OF ERROR:
THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO REJECT APPELLANT’S SELF-DEFENSE PLEA AND SUPPORT THE JURY’S FINDING OF GUILT.
Statement of Facts ………..……………………………………………………….3
Point of Error Restated….. …………………………………..……………………3
Summary of the Argument .………………………………………………………..3
Argument and Authority ..………………………………………………………….4
Certificate of Service.………………………………………………………………6
Certificate of Compliance…..………………………………………………………7
ii INDEX OF AUTHORITIES
CASES: Page
Jackson v. Virginia, 443 U.S. 307; 99 S.Ct. 2781. . .…………….……………….5
Smith v. State, 355 S.W.3d 138(Tex.App-Houston [1st Dist.] 2011, pet.ref’d) . . . .5
Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App.2003)…………………………. .4
STATUTES AND RULES:
Texas Penal Code Ann. §9.31 (a). . . . . . . . . . . . . . . .….…………………… . . . 4
iii CASE NO. 12-15-00224-CR
IN THE
TWELFTH COURT OF APPEALS
TYLER, TEXAS
FREDRICK HARRIS STRALOW, Appellant vs. THE STATE OF TEXAS, Appellee _______________________________
On Appeal from the County Court at Law No. 2 Henderson County, Texas
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW FREDRICK HARRIS STRALOW, hereinafter
sometimes referred to as Appellant, and submits this his Amended Brief on Appeal
in the above entitled and numbered Cause, pursuant to the provisions of the Texas
Rules of Appellate Procedure. Appellant hereby waives oral argument.
1 STATEMENT OF THE CASE
On October 1, 2014, Mr. Fredrick Harris Stralow, hereinafter sometimes
referred to as Appellant, was charged by Complaint and Information with Assault
Causing Bodily Injury to a Family Member (CR 1:1-2). On May 11, 2015, a jury
found Appellant guilty as charged in the Information (CR 1:38). On July 22, 2015
the Court sentenced Appellant to three hundred sixty five (365) days confinement
in the Henderson County Justice Center probated for twenty four (24) months
community supervision, with special conditions of twenty (20) days in jail to be
completed on weekends (CR 1:44-48). Appellant filed his Notice of Appeal on
August 27, 2015 (CR 1:68).
STATEMENT OF JURISDICTION
Therefore, the Twelfth Court of Appeals holds jurisdiction.
Note: For purposes of this Appeal Brief, all references to the Clerk’s Record will be noted as “CR,” followed by the volume number and page number. References to the Reporter’s Record will be noted as “RR,” followed by the volume number, page number and line as necessary. Any emphasis added by this writer will be noted as same immediately following the word or phrase emphasized by italics. Where two or more points of error involve the same facts, they will be combined and argued together as permitted by the Texas Rules of Appellate Procedure.
2 ISSUES PRESENTED
THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO REJECT APPELLANT’S SELF-DEFENSE PLEA AND SUPPORT THE JURY’S FINDING OF GUILT. STATEMENT OF FACTS
Fredrick Harris Stralow was convicted of Assault Causing Bodily
Injury to a Family Member in a trial by jury involving an altercation with his 24
year old sister, Stephanie Nicole Duggan. Appellant, Mr. Stralow, plead
self-defense against Ms. Duggan’s aggression against him. Ms. Duggan testified
she yelled and cursed at Mr. Stralow for bringing to her attention the mess her
eleven month old child had caused. She further testified that her actions escalated
the situation when she pushed Mr. Stralow with her hands around his neck. Mr.
Stralow testified the choke was hard enough to make him stop breathing and at this
point he struck her in self-defense. The State did not provide the jury with any
evidence to disprove Appellant’s self-defense plea.
POINT OF ERROR (Restated):
THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO REJECT APPELLANT’S SELF-DEFENSE PLEA AND SUPPORT THE JURY’S FINDING OF GUILT.
SUMMARY OF THE ARGUMENT
The evidence presented at trial was factually and legally insufficient for a
3 jury to find beyond a reasonable doubt that Appellant was guilty. Appellant
contends that the evidence the State presented at trial was insufficient to support
the jury’s rejection of his self-defense claim.
ARGUMENT AND AUTHORITY
Appellant argues that the evidence at trial showed that he was justified in
defending himself when Ms. Stephanie Duggan choked him on October 1, 2014.
Tex. Penal Code Ann. § 9.31 (a) states in part, “A person is justified in using force
against another when and to the degree the actor reasonable believes the force is
immediately necessary to protect the actor against the other’s use or attempted use
of unlawful force.” Appellant met his burden to produce evidence in support of
his claim of self-defense by the following testimony: Ms. Stephanie Duggan
testified that she escalated the argument when she yelled and cursed at Appellant
(RR 2:66) and put her hands on his throat and pushed him (RR 2:83). Appellant
testified that Ms. Duggan choked him so hard that it hurt and it was hard enough to
make him stop breathing (RR 2:125). Appellant admitted that when Ms. Duggan
grabbed him by the throat with both hands, he at that time reached over and hit her
one time (RR 2:116). The State failed to provide the jury with controverting
evidence to dispute Appellant’s self-defense. In Zuliani v. State, 97 S.W.3d 589
(Tex.Crim.App.2003), Defendant Zuliani was convicted of a misdemeanor assault
4 causing bodily injury and Zuliani plead self-defense. The facts are identical
to Appellant’s, i.e. an argument escalated into a physical confrontation. The Court
of Appeals affirmed the Trial Court’s finding of guilt. However, the Court of
Criminal Appeals reversed and remanded the case for review based on the lack of
the State’s evidence to support the jury’s rejection of Appellant’s self-defense plea.
Smith v. State, 355 S.W.3d 138 (Tex.App-Houston [1st Dist.] 2011, pet.ref’d) holds
that the State carries the burden of persuasion to disprove self-defense beyond a
reasonable doubt and the review of challenge to the sufficiency of the evidence
supporting a jury’s rejection of a claim of self-defense should only be under the
Jackson standard.
Jackson v. Virginia, 443 U.S. 307; 99 S.Ct. 2781, is the holding case and the
final test for establishing the legal sufficiency of the evidence and the burden is on
the State to prove each element of the criminal offense. Appellant argues that the
evidence is legally insufficient to disprove his plea of self-defense. The only
evidence that the State presented to the jury for consideration in Appellant’s
self-defense plea was in the State’s final argument: “Y’all saw the injuries. Y’all
saw Stephanie. No red marks on him. Oh, she choked me so hard I couldn’t
breathe. Bull.” (RR 2:151;L 16-18)
Accordingly, this case should be remanded.
5 PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
this Honorable Court hold that the evidence was insufficient for the jury to find
Appellant guilty and reject his self-defense plea. Appellant prays that this case be
remanded to the Henderson County Court at Law #2.
Respectfully Submitted,
ALTIER LAW OFFICES 1527 E. Fifth St. Tyler, Texas 75701 Tel: 903-595-4232 Fax: 903-595-0031 altierlaw@gmail.com
By: /s/ Linda A. Altier TSBN: 00783541 Attorney for Appellant Fredrick Harris Stralow
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Amended Appellant’s Brief has been served on Barry L. Spencer, Attorney for the State, Henderson County Assistant County Attorney, 100 E. Tyler St., Room 100, Athens, Texas, by e-mail to barryspencer@co.henderson.tx.us , on October 31, 2015.
/s/ Linda A. Altier
6 CERTIFICATE OF COMPLIANCE
In compliance with TRAP 9.4(i), the undersigned hereby certifies that the number of words contained in the above Amended Brief of Appellant are 694; excluding caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, signature, proof of service, certification, and certificate of compliance.