Harold Joseph Norwood, Jr. v. State

Opinion

ACCEPTED 1-14-01005-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 6/8/2015 12:00:00 AM CHRISTOPHER PRINE CLERK

01-14-01005-CR IN THE COURT OF APPEALS FOR FILED IN - 1st COURT OF--APPEALS THE FIRST JUDICIAL DISTRICT OF TEXAS - ---- HOUSTON, - --- TEXAS - - ----ID K ------ HOUSTON 6/7/2015- 10:28:58 - -- PM ---- VO ------ CHRISTOPHER -- A. PRINE - ---- --Clerk HAROLD JOSEPH NORWOOD, JR., -

Appellant Vs. FILED IN 1st COURT OF APPEALS THE STATE OF TEXAS, HOUSTON, TEXAS 6/8/2015 11:34:00 AM Appellee CHRISTOPHER A. PRINE Clerk

APPEALING THE TRIAL COURT’S JUDGMENT ON VERDICT OF GUILY IN CAUSE NO. 13-CR-1311 IN THE 405TH JUDICIAL DISTRICT COURT OF GALVESTON COUNTY, TEXAS

APPELLANT’S BRIEF

ZACHARY MALONEY SBN 24030761 MALONEY & PARKS, L.L.P. 2925 GULF FREEWAY S. STE. B #295 LEAGUE CITY, TEXAS 77573 (713) 228-2277 Ofc. (866) 838-5656 Fax. ZACHMALONEY@GMAIL.COM

ORAL ARGUMENT IS REQUESTED ATTORNEY FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL

Attorneys for the State at trial Mr. Matthew Shawhan SBOT NO. 24061342 Mr. William Reed SBOT NO. 00794516 600 59th Street, St. 1001 Galveston, Texas 77552 Phone: (409) 766-2355

Attorney for Appellant on Appeal Zachary S. Maloney SBN 24030761 MALONEY & PARKS, L.L.P. 2925 GULF FREEWAY S. STE. B #295 LEAGUE CITY, TEXAS 77573 (713) 228-2277 Ofc. (866) 838-5656 Fax. ZACHMALONEY@GMAIL.COM

i TABLE OF CONTENTS

Identity of Parties and Counsel i

Index of Authorities iii

Statement of the Case vi

Statement of Facts vii

Summary of the Arguments 1

Points, Arguments and Authorities 2 & 13

Prayer 14

Certificate of Service 15

ii INDEX OF AUTHORITIES

Cases Almanza, 686 S.W.2d 157 (Tex.Crim.App.1985) 8,9

Blake v. State, 971 S.W.2d 451 (Tex.Crim.App.1998) 2,4,5,12

Cain v. State, 958 S.W.2d 404 (Tex.Crim.App.1997) 13,14

Casanova v. State, 383 S.W.3d 530 (Tex.Crim.App.2012) 8

Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996) 13, 14

Cocke v. State, 201 S.W.3d 744 (Tex.Crim.App.2006) 3, 5

De La Rosa v. State, 919 S.W.2d 791 (Tex.App.–San Antonio 1996, pet. ref'd) 6,7

Delgado v. State, 235 S.W.3d 244 (Tex.Crim.App.2007) 9, 11

Druery v. State, 225 S.W.3d 491 (Tex.Crim.App.2007) 2, 3

Freeman v. State, 352 S.W.3d 77 (Tex.App.–Houston [14th Dist.] 2011, pet. ref'd)

Granger v. State, 3 S.W.3d 36 (Tex.Crim.App.1999) 11

Herron v. State, 86 S.W.3d 621 (Tex.Crim.App.2002) 8

Hitt v. State, 53 S.W.3d 697 (Tex.App.-Austin 2001, pet. ref'd) 13

Howard v. State, 972 S.W.2d 121 (Tex.App.–Austin 1998, no pet.) 11

Huizar v. State, 12 S.W.3d 479 (Tex.Crim.App.2000) 11

Jones v. State, 944 S.W.2d 642 (Tex.Crim.App.1996) 13

Medina v. State, 7 S.W.3d 633 (Tex.Crim.App.1999) 4, 8

iii Mendoza v. State, 88 S.W.3d 236 (Tex.Crim.App.2002) 9

Moore v. State, 640 S.W.2d 300 (Tex.Crim.App. 1982) 14

Morgan v. State, 346 S.W.2d 116 (Tex. Crim.App.1961) 4

Oursbourn v. State, 259 S.W.3d 159 (Tex.Crim.App.2008) 9, 10, 11

Paredes v. State, 129 S.W.3d 530 (Tex.Crim.App.2004) 5, 7

Posey v. State, 966 S.W.2d 57(Tex.Crim.App.1998) 9, 11

Riggs v. State, 744 S.W.2d 140 (Tex.App.–Houston [1st Dist.] 1986) 6

Riggs v. State , 745 S.W.2d 1 (Tex.Crim.App.1988). 6

Santellan v. State, 939 S.W.2d 155 (Tex.Crim.App.1997) 13

Sells v. State, 121 S.W.3d 748 (Tex.Crim.App.2003) 13

Smith v. State, 721 S.W.2d 844 (Tex.Crim.App.1986) 4

Tolbert v. State, 306 S.W.3d 776 (Tex.Crim.App.2010) 11

Wesbrook v. State, 29 S.W.3d 103 (Tex.Crim.App.2000) 13

Williams v. State, 47 S.W.3d 626 (Tex.App.–Waco 2001, pet ref'd) 6

Zamora v. State 411 SW3d 504 (Tex.Crim.App. 2013) 2, 7, 8

Statutes

Tex.Code Crim. Proc. art. 36.14 9, 10

Tex.Code Crim. Proc. art. 38.14 2, 7

Tex. Penal Code § 7.02(a)(2) 4, 7

Tex. Penal Code § 7.02(b) 5, 7, 8

iv Tex. Penal Code §§ 7.01 6

Authorities

George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice

and Procedure § 51:75 (3d ed.2012) 7

CITATIONS TO THE RECORD Reporter’s Record: volume, page no. (Rr #p #) Clerk’s Record: volume, page no. (Cr # p #)

v STATEMENT OF THE CASE

The record begins on November 10th, 2014 with the arraignment of Joseph

Norwood, Jr., hereinafter referred to as Appellant, which took place after the

seating of the jury. Appellant, plead “not guilty” to Murder.

Trial testimony began November 12th and ended November 18th, 2014. The

Defense presented and rested its case on November 18th. The jury returned a

verdict finding the Appellant, “Guilty” of the Murder as stated in the indictment

on November 18th, 2014.

Punishment began and ended November 19th, 2014 with both sides presenting

punishment and character witnesses. On November 20th, 2014, the jury found

both enhancement paragraphs “true” and sentenced the Appellant eighty years

confinement in the Texas Department of Corrections – Institutional Division.

Appellant presents his direct appeal.

vi STATEMENT OF FACTS.

In the early hours between January 25th and 26th of 2013, Galveston Patrol

Ofc. Ticas made the grisly discovery of Juan Navarro (hereinafter Decedent)

mortally injured laying in the parking lot of his own business, Navarro Bakery.(rr

3 p. 95) Lead Detective Sollenberger would eventually discover that the

Decedent was assaulted, knocked to the ground and run over by his own “Lexus”

vehicle. Bakery video surveillance did not film the outside parking lot but an

inside camera showed the blinking of the Lexus taillight through a window. Det.

Sollenberger established a timeline using videos from: a convenience store caddy

corner to the bakery, the Mercado Taco Shop across the street, the travel video of

a Galveston patrol unit passing the bakery and a Kroger grocery store. The Kroger

and convenience store videos allegedly showed the Appellant Joseph Norwood.

(rr. 6 pg. 49)

The “Lexus” was discovered three blocks away from the bakery and on the

same street of the residency of the State’s “star” witness Richard Lacey. RR 3 p.

176. Richard Lacey was called and interviewed by Detectives twice. Lacey

testified of Appellant picking him up in the Lexus, (rr. 4 p 107 & 108), driving to

Kroger with him to cash coins, and acting strangely. Appellant allegedly stated if

Lacey drove Lacey would, “….be looking at a penitentiary sentence”. (rr. 6 p.

vii 122). Despite blood being found on Lacey’s shoes and finger, (rr. 6 p. 122-130),

and video evidence supporting Lacey’s contact with the Appellant within minutes

of the murder of the Decedent, Lacey’s involvement or implication of him as an

accomplice to the Decedent’s murder was given token review by police.

Appellant contends that Lacey’s testimony, the detectives’ timeline and the

video surveillance, though shows Appellant’s possession of the Lexus, does not

show Appellant committing the murder.

viii SUMMARY OF THE ARGUMENTS

Point of Error One (1): Testimony from and about Richard Lacey’s knowledge

and physical involvement of the instant case is sufficient to trigger the trial court

to Sua Sponte include an accomplice-witness instruction to the Jury charge.

Point of Error Two (2): Appellant contends that the evidence is factually

insufficient to prove murder.

1 APPELLANT'S POINT OF ERROR ONE

Testimony from and about Richard Lacey’s knowledge and physical

involvement of the instant case is sufficient to trigger the trial court to Sua

Sponte include an accomplice-witness instruction to the Jury charge.

Argument

Appellant relies upon Zamora v. State 411 SW3d 504 (Tex.Crim.App. 2013).

There, the Court held that the definition of an accomplice is broad enough to

encompass one who is liable as a co-conspirator party to an offense.

In the Appellant’s case: the physical evidence of; blood on Lacey’s shoe,

blood on Lacey’s finger, recovery of the vehicle on Lacey’s street, as well as

Lacey’s appearance in the Kroger video establishes Lacey as a party conspirator.

“[A] conviction cannot be had upon the testimony of an accomplice unless

corroborated by other evidence tending to connect the defendant with the offense

committed[.]” Tex.Code Crim. Proc. art. 38.14; see Druery v. State, 225 S.W.3d

491, 498 (Tex.Crim.App.2007) Zamora at 510 and Blake v. State, 971 S.W.2d

451, 454 (Tex.Crim.App.1998). Because the rule requires corroboration of

accomplice-witness testimony before a conviction can stand, the jury must be

instructed accordingly, but the particular instruction that must be given depends on

the circumstances of each case.

Types of Accomplice–Witness Instructions

2 A proper accomplice-witness instruction informs the jury either that a

witness is an accomplice as a matter of law or that he is an accomplice as a matter

of fact. Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App.2006). The evidence

in each case will dictate the type of accomplice-witness instruction that needs to

be given, if any. Id.

A witness is an accomplice as a matter of law when the witness has been

charged with the same offense as the defendant or a lesser-included offense, or

“when the evidence clearly shows that the witness could have been so charged.”

Cocke, 201 S.W.3d at 747–48; Druery, 225 S.W.3d at 499. For accomplice

witnesses as a matter of law, the trial court affirmatively instructs the jury that the

witness is an accomplice and that his testimony must be corroborated. See Druery,

225 S.W.3d at 498–99.

In contrast, when the evidence presented by the parties as to the witness's

complicity is conflicting or inconclusive, then the accomplice-witness instruction

asks the jury to (1) decide whether the witness is an accomplice as a matter of fact,

and (2) apply the corroboration requirement, but only if it has first determined that

the witness is an accomplice. Id.

Regardless of whether it identifies an accomplice as a matter of law or as a

matter of fact, the jury instructions must also explain the definition of an

accomplice. The accomplice-witness statute does not define the term, the Texas

3 Court of Criminal Appeals describes an accomplice as someone who, under the

evidence, could have been charged with the same or lesser-included offense as that

with which the defendant was charged. Medina v. State, 7 S.W.3d 633, 641

(Tex.Crim.App.1999) (noting that defendant is “entitled to an accomplice-witness

instruction if and only if ‘there is sufficient evidence in the record to support a

charge against the witness alleged to be an accomplice’ ”) (citing Smith v. State,

721 S.W.2d 844, 851 (Tex.Crim.App.1986)); Blake, 971 S.W.2d at 454–55

(noting that Court has “repeatedly stated” that person is an accomplice “if he or

she could be prosecuted for the same offense as the defendant, or a lesser included

offense”); Morgan v. State, 171 Tex.Crim. 187, 346 S.W.2d 116, 118 (App.1961)

(describing test for determining whether witness should be deemed an accomplice

as “whether or not there is sufficient evidence in the record to support a charge

against” him).

In applying this broad definition, appellate courts have frequently tailored

the definition of an accomplice to the facts of particular cases, most of which

involve accomplice witnesses who are or may be direct parties to the offense. See

Tex. Penal Code § 7.02(a)(2) (describing law of parties for direct participant in

offense). Implicitly referring to a direct-party theory for accomplices, the Texas

Criminal Court of Appeals describes an accomplice as an individual who

“participates with a defendant before, during, or after the commission of the

4 crime,” “acts with the requisite culpable mental state,” and performs an

“affirmative act that promotes the commission of the offense with which the

defendant is charged.” Cocke, 201 S.W.3d at 748; see also Blake, 971 S.W.2d at

454 (describing Zamora at 511 accomplice as “a blameworthy participant”).

In contrast, there is only one occasion to specifically discuss an accomplice

as someone who is or may be a party to the offense as a co-conspirator. See Tex.

Penal Code § 7.02(b) (describing law of parties for co-conspirators).

In Paredes v. State, the trial court's instructions included an instruction on

the law of conspiracy under Penal Code § 7.02(b). “Appellant argues that [certain

named individuals] were accomplices under the meaning of Section 7.02(b) and

therefore, he was entitled to the charge on accomplice witnesses. Appellant does

not explain how this section would apply to [the named individuals]. To be

applicable, there would still need to be evidence that [the named individuals] were

conspirators in carrying out one felony when another felony was committed. There

is no evidence that the three conspired or attempted to carry out the murders.”

Paredes v. State, 129 S.W.3d 530, 538–39 (Tex.Crim.App.2004).

In Paredes, it was determined that the evidence should be examined under a

party-conspirator theory, but it did not fully explain why that theory applied.

Zamora, explains that the conspiracy theory of party liability applies in the

accomplice-witness context because:

5 (1) an accomplice is a person who may be charged with the same or lesser-

included offense as that with which the defendant is charged, and

(2) a person may be charged with an offense as a principal, a direct party, or

as a co-conspirator. See Tex. Penal Code §§ 7.01 (person is “criminally

responsible” for his own conduct or for “conduct of another for which he is

criminally responsible”); 7.02(a)(2) (describing criminal responsibility for direct

party); 7.02(b) (describing criminal responsibility for party as co-conspirator).

Several courts of appeals have adopted the view that testimony from a co-

conspirator triggers the requirement for an accomplice-witness instruction. See

Williams v. State, 47 S.W.3d 626, 630 (Tex.App.–Waco 2001, pet ref'd) (holding

that accomplice-witness instruction required because witness could have been

indicted for charged offense as co-conspirator); De La Rosa v. State, 919 S.W.2d

791, 794 (Tex.App.–San Antonio 1996, pet. ref'd) (same); Riggs v. State, 744

S.W.2d 140, 142 (Tex.App.–Houston [1st Dist.] 1986) (same), pet. dism'd,

improvidently granted, 745 S.W.2d 1 (Tex.Crim.App.1988).

In De La Rosa v. State, the court of appeals explained that co-conspirator

parties to an offense are accomplices for purposes of administering the

accomplice-witness rule:

[I]f the witness and the accused were co-conspirators in a conspiracy to commit a

felony other than the crime with which the accused is charged, the accused

6 committed the charged offense in furtherance of that conspiracy, and the charged

offense was one that should have been anticipated by the witness as a result of

carrying out the conspiracy, the witness is an accomplice. De La Rosa, 919

S.W.2d at 794.

The Zamora ruling quotes Professors Dix and Schmolesky’s view of the

interaction between the accomplice-witness rule and the law of parties:

[I]f the witness is associated with the commission of the crime by the accused in

any of the ways described in section 7.02, the witness is criminally responsible for

the conduct ... and thus is a party and an accomplice witness. If, for (Zamora at

512) example, the evidence shows that the witness “solicit[ed], encourage[d],

direct[ed], aid[ed], or attempt[ed] to aid” the accused ... and the witness acted

“with intent to promote or assist the commission of the offense,” the witness is

responsible for the accused's conduct and is an accomplice witness. The same is

the case if the witness and the accused were co-conspirators in a conspiracy to

commit a felony other than the crime with which the accused is charged, the

accused committed the charged offense in furtherance of that conspiracy, and the

charged offense was one that should have been anticipated by the witness as a

result of carrying out the conspiracy.

See 43A George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal

Practice and Procedure § 51:75 (3d ed.2012).

7 Having already applied the party-conspirator theory as a basis to decide

whether an accomplice-witness instruction was required in Paredes, The Texas

Criminal Court of Appeals agrees with those courts of appeals that have held that

an accomplice-witness instruction is required when the evidence raises the

question of whether a witness is an accomplice under a party-conspirator theory.

See Tex.Code Crim. Proc. art. 38.14; Tex. Penal Code § 7.02(b); Paredes, 129

S.W.3d at 538–39.

B. Application of Almanza to Accomplice–Witness Instructions

Almanza applies to accomplice-witness instructions, both as a matter of law

and as a matter of fact, based on evidence that the witness was a direct party to the

offense. Casanova v. State, 383 S.W.3d 530, 533 (Tex.Crim.App.2012) (matter of

law); Herron v. State, 86 S.W.3d 621, 631–32 (Tex.Crim.App.2002) (matter of

law); Medina, 7 S.W.3d at 642 (matter of fact).

The narrow question is whether the rule of Almanza should be different or

inapplicable when it is alleged that a witness is an accomplice as a party to a

conspiracy, as compared to a direct party. Almanza concludes that all complaints

about the trial court's failure to include an accomplice witness instruction must be

analyzed under its procedural framework. Zamora at 513 and 514.

1. Almanza, Generally

8 Under Almanza, a trial court must submit a charge setting forth the law

“ ‘applicable to the case,’ ” which imposes a duty on trial courts to sua sponte

instruct the jury on these matters. Posey v. State, 966 S.W.2d 57, 62

(Tex.Crim.App.1998); Almanza, 686 S.W.2d at 160–74. The framework in

Almanza “is not a court-made rule; it is based on this Court's interpretation of [the

Texas Code of Criminal Procedure],” and its statutory predecessors. Posey, 966

S.W.2d at 60; see Tex.Code Crim. Proc. art. 36.14 (“[J]udge shall ... deliver to the

jury ... a written charge distinctly setting forth the law applicable to the case”).

Almanza applies when “a rule or statute requires an instruction under the

particular circumstances,” and includes errors of commission and omission.

Oursbourn v. State, 259 S.W.3d 159, 180 (Tex.Crim.App.2008) (emphasis in

original). Almanza, however, does not apply to defensive issues, which may be

forfeited if not preserved at trial. See Posey, 966 S.W.2d at 60–61; Mendoza v.

State, 88 S.W.3d 236, 239 (Tex.Crim.App.2002). Defensive issues are those “on

which instructions are not mandated by any statute.” Oursbourn, 259 S.W.3d at

179. They involve strategic decisions and tactics generally left to the lawyer and

the client. Posey, 966 S.W.2d at 63; Delgado v. State, 235 S.W.3d 244, 249

(Tex.Crim.App.2007).

2. Accomplice–Witness Instruction is Law Applicable to the Case

9 An examination of the plain language in the accomplice-witness statute

reveals that it is, in all its variations, the law applicable to the case rather than a

defensive issue. The accomplice-witness statute states,

“A conviction cannot be had upon the testimony of an accomplice unless

corroborated by other evidence tending to connect the defendant with the offense

committed; and the corroboration is not sufficient if it merely shows the

commission of the offense.”

Tex.Code Crim. Proc. art. 38.14.

The statute's plain meaning disallows any conviction based upon

uncorroborated testimony of an accomplice. Oursbourn, 259 S.W.3d at 180. The

statute is not worded conditionally upon a defendant's proper objection or request

for an instruction. See Tex.Code Crim. Proc. art. 38.14. The statute sets out an

“implicit ‘If-then’ proposition: If the evidence raises an issue of [the witness's

status as an accomplice], then the trial court shall instruct the jury [regarding the

corroboration requirement].” Oursbourn, 259 S.W.3d at 180 (generally discussing

group of statutes, including accomplice-witness statute, that “require an instruction

under the particular circumstances” and, therefore, constitute “law applicable to

the case”). In light of the plain language that a conviction cannot be had on the

testimony of an accomplice unless it is corroborated, an instruction on the

accomplice-witness rule is like those instructions that this Court has held to be the

10 law applicable to the case. Compare Huizar v. State, 12 S.W.3d 479, 484

(Tex.Crim.App.2000) (holding that trial court has sua sponte duty to instruct

based on statutory provision requiring proof of extraneous-offense evidence

“beyond a reasonable doubt”); Oursbourn, 259 S.W.3d at 180–81 (holding that

trial court has sua sponte duty to instruct based on statutory requirements

governing admissibility of defendant's out-of-court statements).

The accomplice-witness rule cannot be reasonably categorized as a

defensive issue that a defense attorney might forego as a matter of strategy.

Zamora at 514. Compare Posey, 966 S.W.2d at 61–62 (mistake-of-fact instruction

matter of strategy); Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999)

(same); Tolbert v. State, 306 S.W.3d 776, 781 (Tex.Crim.App.2010) (lesser-

included-offense instruction is matter of strategy to pursue outright acquittal);

Delgado, 235 S.W.3d at 250 (limiting instruction is matter of strategy to minimize

jury's recollection of unfavorable evidence). Those courts observed that it is

difficult to envision that any competent attorney would reasonably forego an

accomplice-witness jury instruction as a matter of strategy based on his theory of

the case. See Freeman v. State, 352 S.W.3d 77, 82 (Tex.App.–Houston [14th

Dist.] 2011, pet. ref'd); Howard v. State, 972 S.W.2d 121, 126 (Tex.App.–Austin

1998, no pet.). This is especially true in light of the legislative determination to

disallow a conviction on the uncorroborated testimony of an accomplice based on

11 concern that such witnesses may have incentives to lie or shift blame, and this

concern is equally applicable whether the witness is alleged to be a direct party or

a party to the offense as a co-conspirator. See Blake, 971 S.W.2d at 454 (observing

that rule reflects legislative determination to view accomplice testimony with

caution because accomplices often have incentives to lie to avoid punishment or

shift blame).

CONCLUSION

Appellant in the instant case argues that the record is rife in the testimony of

Det. Sollenger and Richard Lacey that the Trial Court had more than adequate

evidence to sua sponte include an accomplice-witness instruction for the Jury to

ponder the credibility and reliability of Richard Lacey.

12 APPELLANT'S POINT OF ERROR TWO

Appellant contends that the evidence is factually insufficient to prove murder.

Argument

A factual sufficiency review begins with a presumption that the evidence is

legally sufficient to sustain the conviction. Clewis v. State, 922 S.W.2d 126, 134

(Tex.Crim.App.1996). However, in a factual sufficiency analysis, all the evidence

is viewed without the prism of “in the light most favorable to the prosecution as in

a legal sufficiency challenge.” Id. at 129; Hitt v. State, 53 S.W.3d 697, 709

(Tex.App.-Austin 2001, pet. ref'd). A reviewing court must consider all the

evidence in a neutral light, impartially comparing evidence that tends to prove the

existence of a disputed fact or facts with evidence that tends to disprove that fact

or facts. See Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App.1997); Jones

v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996). Deference is given to the

jury verdict, as well as the determination involving the credibility and demeanor of

the witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997).

A reviewing court must avoid substituting its own judgment for that of a

fact finder. Sells v. State, 121 S.W.3d 748, 758 (Tex.Crim.App.2003); Wesbrook v.

State, 29 S.W.3d 103, 112 (Tex.Crim.App.2000). Early on, it was felt that a jury

verdict is to be set aside “only if it is so contrary to the overwhelming weight of

13 the evidence as to be clearly wrong and unjust.” Cain, 958 S.W.2d at 410; Clewis,

922 S.W.2d at 129.

CONCLUSION

In the instant case Appellant challenges the factual sufficiency of the

elements of the offense on appeal. Appellant contends that his driving of the

Decedent’s vehicle was not sufficient to prove murder or to place him at the scene

of the Decedent’s death.

Simply put, proof amounting to mere suspicion of the guilt is insufficient to

sustain conviction, Moore v. State, 640 S.W.2d 300, 302 (Tex.Crim. App. 1982).

PRAYER

WHEREFORE, should the Honorable Court of Appeals find error in the

record on appeal, Appellant prays the Court reverse and remand this cause for new

trial, remand for new trial on punishment or, in the alternative, reverse and render

with instruction to enter a judgment of acquittal.

CERTIFICATE OF COMPLIANCE

I hereby certify pursuant to TRAP 9.4(i) that the preceding document

contains 3,812 words as determined by the word count of the computer program

used to prepare this document.

14 /s/ Zachary S. Maloney Zachary S. Maloney

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Appellant’s Original Brief has

been sent to the Galveston County District Attorney’s Office, Appeal Division, on

this the 8th day of June, 2015.

__/S/ Zachary S. Maloney ZACHARY MALONEY