ACCEPTED 06-15-00082-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 8/17/2015 4:00:46 PM DEBBIE AUTREY CLERK
IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS FRED DOUGLAS MOORE, JR. § 8/17/2015 4:00:46 PM APPELLANT § DEBBIE AUTREY § Clerk v. § No. 06-15-00082-CR § THE STATE OF TEXAS, § APPELLEE §
STATE'S BRIEF
FROM THE 196m DISTRICT COURT HUNT COUNTY, TEXAS TRIAL CAUSE NUMBER29,762 THE HONORABLE J. ANDREW BENCH, JUDGE PRESIDING
NOBLE DAN WALKER, JR. District Attorney Hunt County, Texas
Jeff Kovach Assistant District Attorney P. 0. Box 441 4th Floor Hunt County Courthouse Greenville, TX 75403 (903) 408-4180 FAX (903) 408-4296 State Bar No. 24065571 TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................... 2
INDEX OF AUTHORITIES ............................................................................................... 3
STATEMENT OF FACTS .............................................................................. 4
SUMMARY OF THE STATE'S ARGUMENTS .............................................................. 5
STATE'S ARGUMENT ...................................................................................................... 5
PRAYER ........................................................................................................................... l2
CERTIFICATE OF SERVICE .......................................................................................... l3
2 INDEX OF AUTHORITIES
CASES
Bignall v. State, 887 S.W.2d 21, (Tex.Crim.App.1994) .................................................. 9 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ............................................. 12 Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) ................................................ 7-8 Jackson v. Virginia 442 U.S. 307 (1979) ....................................................................... 12 Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998) ................................................. 9 Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005) ............................................. 5-6 Robertson v. State, 871 S.W.2d 701 (Tex.Crim.App.1993) ............................................ 9 Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981) .............................................. 8 Saunders v. State, 913 S.W.2d 564 (Tex. Crim. App. 1995) ........................................... 9 Schweinle v. State, 915 S.W.2d 17 (Tex. Crim. App. 1996) ............................................ 9 Simmons v. State, 109 S.W.3d 469 (Tex.Crim.App.2003) ............................................... 8 Skinner v. State, 956 S.W.2d 532 (Tex.Crim.App.1997) ............................................ 9-10
STATUTES AND RULES
Tex. Penal Code Sec. 29.091(1) .................................................................................... 7-8 Tex. Penal Code Sec. 31.03 (Tex. Crim. App. 2010) .................................................. 8,11 Tex. Rules Evid. 608(a) .................................................................................................... 6 Tex. Rules Evid. 608(b) .................................................................................................... 5 Tex. Rules Evid. 609 ........................................................................................................ 6
3 Statement of Facts
The State agrees with Appellant's Statement of the facts with the following
exceptions and additions. First, Appellant contends that Mr. Hernandez, the victim
in the case, testified that as Appellant shook Mr. Hernandez's hand Appellant
reached under the counter and grabbed forty dollars. (R.R. 3. P. 28). That is not
what Mr. Hernandez testified to, he testified that Appellant shook his hand, then
the video played forward several minutes and was stopped, as shown on the
transcript, and then, when Appellant on the video reached under the counter, Mr.
Hernandez was asked what Appellant took and then he replied "He grabbed I
believe it was forty dollars." (R.R. 3. P. 28) I see how Appellant's counsel could
be confused since the record wasn't clear as to the exact time on the video the
questions were relating to and she was not there at the trial.
Appellant also fails to mention that Mr. Hernandez testified that he felt
"Just a little bit" of pain. (R.R. 3 p. 29). In addition, the video introduced by the
State shows Appellant shoving Mr. Hernandez across the room and grabbing him
by the neck. (State's Exhibit 1). Finally, Appellant left out the fact that the Court
did allow Appellant to put in front of the jury the fact that Mr. Hernandez's
employer, J asmeet Sachdeva, did find not find him a very truthful person. (R.R. 3.
P. 122).
4 SUMMARY OF THE ARGUMENT
Appellant was not denied due process of law or the right to confront his
accusers because whether the victim in this case, Mr. Hernandez, allowed people
to steal from the store in the past, has no relevance as to whether Appellant
committed robbery in this case and was impermissible impeachment evidence
under Rule 608(b) and the Appellant failed to properly preserve error at the trial
court level.
The Court did not err in failing to give a jury instruction on a lesser
included offense of theft because there is no evidence in the record that the
defendant was guilty only of theft, but not of robbery.
The evidence is legally sufficient to prove the offense of robbery as there is
evidence to support all of the elements ofthe offense of robbery as defined by the
penal code.
ARGUMENT
POINT OF ERROR ONE
To properly preserve for Appellate Review an error for a Confrontation
Clause violation, the Appellant must put the trial judge on notice as to why the
evidence is admissible. Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005).
Nowhere in the record did Appellant let the trial Court know that he was making
an argument for admissibility based on the Confrontation Clause, the only
5 reference to any law in Appellant's argument was "And under the Rules of
Evidence-". (R.R. 3 p.33). When a defendant's objection encompasses
complaints under both the Rules of Evidence and the Confrontation Clause, the
objection is not sufficiently specific to preserve error. Reyna at 179. Therefore,
with regards to Appellant's cross examination of both Mr. Hernandez and Mr.
Sachdeva, Appellant failed to properly preserve error for appeal.
If the Court does fmd that Appellant properly preserved error for appeal,
Appellant was still allowed to introduce the only evidence that the Rules of
Evidence allow, other than a conviction under Rule 609, and that is an opinion on
truthfulness. Tex. R. Evid. 608(a). Mr. Sachdeva, did find not find him a very
truthful person. (R.R. 3. P. 122).
Appellant argues that he was not allowed to present his defense of consent,
which has also been raised for the first time on appeal and should be overruled for
the same reasons that his Confrontation Clause should be overruled in that the
defense wasn't preserved for appeal. The mere disputed fact that Mr. Hernandez
let other individuals take things in the past has no bearing or relevance on whether
Appellant thought he had consent to take cash from behind the counter without a
showing that Appellant lmew Mr. Hernandez has allegedly allowed others to take
things in the past. Without that knowledge in Appellant's mind, and there is no
evidence that Appellant himselflmew or thought that Mr. Hernandez had allowed
others to take things in the past, it would not be relevant evidence to begin with.
Therefore, Appellant's first point of error should be overruled.
6 POINT OF ERROR TWO
The Court did not err in failing to give a jury instruction on Theft as a lesser
included offense to Robbery. The first step in the lesser-included-offense analysis,
determining whether an offense is a lesser-included offense of the alleged offense,
is a question oflaw. It does not depend on the evidence to be produced at the trial.
It may be, and to provide notice to the defendant must be, capable of being
performed before trial by comparing the elements of the offense as they are
alleged in the indictment or information with the elements of the potential lesser-
included offense. Hall v. State., 225 S.W.3d 524, 535-536 (Tex. Crim. App.
2007). The relevant portion of the Indictment in the present case reads as follows:
FRED DOUGLAS MOORE, JR., did then and there, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly cause bodily injury to ANDRES HERNANDEZ by pushing, grabbing, hitting and/or struggling with ANDRES HERNANDEZ' leg and arm; (C.R. p. 6)
"In the course of committing theft" means conduct that occurs in an attempt to
cmmnit, during the cmmnission, or in ilmnediate flight after the attempt or
commission of theft." (Tex. Penal Code Sec 29.01(1)). Next the Court is to look
at the statutory elements of the alleged lesser-included offense of Theft. Those are:
1. The Appellant
2. Unlawfully
3. Appropriates property
7 4. With intent to deprive the owner of property (Tex. Penal Code Sec.
31.03)
The court then determines whether the elements of Theft as defined by statute are
proven by the same or less than all the facts required to prove the alleged greater
charge as it is charged in the indictment. See generally Hall v. State. They are not
here, particularly Theft requires the appropriation of property. (Tex. Penal Code
Sec 31.03). "In the course of committing theft" requires only that an attempt to
commit theft be made and no appropriation is required. (Tex. Penal Code Sec
29.01(1)). In addition, under Texas law, the value ofthe property taken is an
essential element ofthe offense ofTheft. See Simmons v. State, 109 S.W.3d 469,
478-79 (Tex.Crim.App.2003). Since value is not required to be proved for a
Robbery, that is another element that requires more proof for Theft than is
required for Robbery. Therefore, looking at the crime of Robbery as charged and
Theft as defined by statute, it would require more facts to prove the elements of
Theft than it would to prove the elements ofRobbery as charged and Theft is not a
lesser included offense in this case and Point of Error Number Two fails the first
prong of the two prong test established by Hall and should be overruled.
Even if the court believes Theft is a lesser included offense as a matter of
law under the first prong of the two part lesser-included test established by Hall, in
this case there is no evidence in the record to permit a jury rationally to find that if
the Appellant is guilty, he is guilty only of the lesser-included offense as required
by Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981). Under the second
8 prong, if evidence from any source raises the issue of a lesser included offense, a
charge on that offense is required. Saunders v. State, 913 S.W.2d 564 (Tex. Crim.
App. 1995). The credibility ofthe evidence and whether it conflicts with any
other evidence must not be considered in deciding whether to charge on the lesser
included offense.·Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998). A
"lesser included offense may be raised if evidence either affinnatively refutes or
negates an element establishing the greater offense." Schweinle v. State, 915
S.W.2d 17, 19 (Tex. Crim. App. 1996). There is no evidence in the record that
affirmatively refutes or negates an element establishing the greater offense, in this
case causing bodily injury. "Anything more than a scintilla of evidence is
sufficient to entitle a defendant to a lesser charge." Bignall v. State, 887 S.W.2d
21, 23 (Tex.Crim.App.1994). Although this threshold showing is low, "it is not
enough that the jury may disbelieve crucial evidence pertaining to the greater
offense, but rather, there must be some evidence directly germane to the lesser-
included offense for the finder of fact to consider before an instruction on a lesser-
included offense is warranted." Skinner v. State, 956 S.W.2d 532, 543
(Tex.Crim.App.1997). Accordingly, we have stated that the standard may be
satisfied if some evidence refutes or negates other evidence establishing the
greater offense or if the evidence presented is subject to different interpretations.
Robertson v. State, 871 S.W.2d 701, 706 (Tex.Crim.App.1993).
Appellant claims that there is no evidence in the record to show that
Appellant caused any injury to the alleged victim during the course of the
9 interaction that led to Appellant's conviction. That is simply not true, and Mr.
Hernandez testified that he felt "Just a little bit" of pain. (R.R. 3 p. 29). No rational
juror, and the word rational has to have some meaning, could believe after
watching the video and listening to the testimony of Mr. Hernandez that Mr.
Hernandez and not Appellant was the proximate cause of the pain in his ann and
leg that he felt. Appellant seems to be claiming, as his attorney did at trial, that if
Appellant didn't use force to acquire the property, then it isn't a Robbery even if
he used force, which State's Exhibit one clearly shows he did, in the immediate
flight after theft. Although this threshold showing is low, "it is not enough that the
jury may disbelieve crucial evidence pertaining to the greater offense, but rather,
there must be some evidence directly germane to the lesser-included offense for
the finder of fact to consider before an instruction on a lesser-included offense is
warranted." Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App.l997). The
Skinner opinion is what we have here, although the threshold is low to get a lesser
included, we can't simply give a lesser included because a jury might refuse to
believe what they see on the video which is a textbook strong arm robbery, there
has to be some direct evidence, such as the Appellant or another witness testifying
he didn't use cause bodily injury, for Appellant to get a lesser included, and that
evidence simply isn't in the record. Therefore Point of Error Number Two should
be overruled for failing the second prong of the two prong test.
Finally, Appellant failed to properly preserve Point of Error Two for
Appeal by failing to specifically state which Theft offense that Appellant wanted
10 as a lesser included offense. Did Appellant want a Theft of Property under Fifty
Dollars Class C Misdemeanor charge? Did Appellant want a Theft fi-om a Person
State Jail Felony Charge? All Appellant's Attorney stated was "I would be
requesting a lesser included charge for just theft." (R.R. 3 p. 128-129). Theft
comes in grades from a Class C Misdemeanor to a First Degree Felony. Tex ..
Penal Code Sec. 31.03. Value alone does not determine the grade Theft. Tex.
Penal Code Sec. 31.03. The State has pointed out two specific grades of Theft that
would be lesser offenses than Robbery, but without Appellant specifying which
Theft offense he wanted, the trial court judge was not properly put on notice much
like he was not put on notice with Appellant's first time on appeal Confrontation
Clause violation argument. Therefore, Point of Error Number Two should be
overruled.
POINT OF ERROR THREE
Appellant claims the evidence is legally insufficient to support a conviction
for armed robbery because there is no evidence that Appellant himself
intentionally, knowingly, or recklessly caused bodily injury to the victim.
Appellant begins the argument by stating the record is unequivocal that there is no
evidence of a threat to the victim, an argument the State agrees with but the
Appellant was not charged with a robbery by threat but robbery by causing bodily
injury, so the argument is pointless.
Next Appellant argues there is no evidence that Appellant himself caused
injury to the victim. Appellant does not seem to contest that an injury occurred,
11 Appellant even quotes the victim as testifying that one did, but simply that the
victim did not say specifically that that Appellant caused the injury. There is no
legal requirement that I can find in the case law that says the victim to a crime
must specifically state that the Defendant caused him or her an injury, in fact in a
murder case, absent a dying declaration, that would be impossible.
For legal sufficiency the question is, "after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia
442 U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)
(Adopting Jackson legal sufficiency standard as the only standard a reviewing
Court should apply when examining sufficiency of the evidence). After watching
the video is State's Exhibit 1 and listening the testimony of the victim in this case
not only could any rational trier of fact find Appellant guilty, only an irrational
trier of fact would not. In State's Exhibit 1 video Appellant can be seen shoving
the victim across the room and grabbing at his neck. The victim testified that he
felt "Just a little bit" of pain as a result of Appellant's conduct while taking
money. (R.R. 3 p. 29) Therefore, the evidence is sufficient to believe Appellant
caused bodily injury in the course of cmmnitting theft and Point of Error Three
should be overruled.
PRAYER
Appellant's trial was without prejudicial error. The State prays that
Appellant's conviction and sentence be affirmed.
12 Respectfully submitted,
Is/ Jeff Kovach JeffT. Kovach Assistant District Attorney P. 0. Box 441 4th Floor, Hunt County Courthouse Greenville, TX 75403 State Bar No. 24065571 (903) 408-4180 FAX (903) 408-4296
CERTIFICATE OF SERVICE
A true copy of the State's brief has been served to Jessica Edwards, Appellant's attorney of record, August14th, 2015, pursuant to Texas Rules of Appellate Procedure.
Is/ Jeff Kovach JeffT. Kovach Assistant District Attorney
CERTIFICATE OF COMPLIANCE
I certify that Appellee's Brief is written in Times New Roman font size 13 point text. Appellee's brief has 2474 words according to the word count feature on Appellee's word processing program .