PD-1354-15
NO.
TO THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS
NO. 10-15-0067-CR
IN THE COURT OF APPEALS
FOR THE
TENTH SUPREME JUDICIAL DISTRICT OF TEXAS
AT WACO, TEXAS
CHRISTOPHER DAVID HARVEY, Appellant
V. October 16, 2015 THE STATE OF TEXAS, Appellee
PETITION FOR DISCRETIONARY REVIEW
JOHN DONAHUE ATTORNEY FOR APPELLANT TBA #05968300 CHRISTOPHER DAVID HARVEY th 204 N. 6 St. Waco, Texas 76701 (254) 752-9090 (254) 753-1232 FAX Texascriminalattorney@yahoo.com
ORAL ARGUMENT REQUESTED SUBJECT INDEX PAGE
Identification of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
List of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
GROUND FOR REVIEW
Whether the evidence was legally insufficient to prove that Harvey caused the injury.
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Procedural History of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts Pertinent To Petitioner's Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Ground for Review (Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Reasons for Review as to Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Arguments and Authorities in Support of Petitioner’s Ground for Review . . . . . . 3
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
APPENDIX - Opinion of 10th Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . end
i STATEMENT REGARDING ORAL ARGUMENT
Petitioner respectfully asserts that this Court would be aided in the resolution
of the matters which are the subject of this Petition for Discretionary Review if oral
argument were granted. Therefore, Petitioner respectfully requests that this Court set
this case for oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to Tex.R.App. 68.4(a), a complete list of the names of all interested
parties is provided below:
Abelino “Abel” Reyna - District Attorney of McLennan County, Texas Robert Moody, Evan O’Donnell - Assistant District Attorneys 219 N. 6th St., Waco, TX 76701
Christopher David Harvey - Appellant #02016029 Byrd Unit 21 FM 247 Huntsville, TX 77320
Felipe “Phil” Martinez - Counsel for Appellant in trial court 1105 Wooded Acres, Suite 200, Waco, TX 76710
John Donahue - Counsel for Appellant on appeal 204 N. 6th St., Waco, TX 76701
Hon. Ralph T. Strother - Presiding Judge
ii LIST OF AUTHORITIES
CASES PAGE
Stone v. State, 919 S.W.2d 424 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . 4
Breaux v. State, 16 S.W.3d 854 (Tex. App. Houston 14th Dist. 2000, pet ref’d) . 4
Johnson v. State, 978 S.W.2d 703 (Tex. App. Corpus Christi 1998), aff’d 23 S.W.3d 1 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATUTES
Tex. Penal Code §22.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp. 2013) . . . . . . . . . . . . 4
iii STATEMENT OF THE CASE
This is an appeal from a jury trial in the 19th District Court, McLennan
County, Texas, the Honorable Ralph T. Strother, presiding, Cause Number 2013-840-
C1. The State instituted proceedings against the Appellant, Christopher David
Harvey, for the offense of assault on a public servant, a third degree felony. Tex.
Penal Code §22.01. There were two enhancement allegations which made the range
of punishment 25 years to life in prison. Tex. Penal Code §12.42(d). Harvey pleaded
not guilty and a jury trial commenced. Harvey was convicted and punishment was
assessed by the jury at 65 years in TDC. No fine was imposed.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On February 25, 2015, Mr. Harvey timely filed his Amended Notice of Appeal.
His brief was filed on July 21, 2015. The State’s reply brief was filed on August 18,
2015. On September 17, 2015, the Tenth Court of Appeals issued an opinion
overruling Harvey’s points of error and affirming his conviction.
No motion for rehearing was filed. This petition for discretionary review is
being filed within 30 days of the Court of Appeal’s opinion.
1 STATEMENT OF FACTS
On April 9, 2013, two deputies with the McLennan County Sheriff’s Office
went to 2615 Bosque Blvd to serve an arrest warrant on Harvey. (R. 4, ppg. 15, 36).
As the deputies were pulling up to the house, so was the homeowner, Rebekah
Rosario. She gave the deputies consent to enter the house. (R. 3, pg. 37). Once
inside, they told Harvey to turn around and put his hands behind his back. (R. 3, pg.
40). It appeared to the deputies that Harvey did not really want to comply, so they
both grabbed hold of Harvey. Deputy Mabry grabbed her cuffs. (R. 3, pg. 40). The
Deputies testified that Harvey hit Mabry with his shoulder causing her to fall to the
ground. In the course of getting back up, Mabry and Ewing became entangled and
Ewing lost his hold on Harvey, who was able to escape out the front door. (R. 3, ppg.
20, 41-42). Both deputies were wearing uniforms that included long, BDU type
pants. (R. 3, pg. 43). After he escaped, they spent several hours looking for Harvey.
Some of the search included looking into a crawl space underneath the house. (R. 3,
pg. 45). Deputy Mabry testified that her pants were not torn and she did not notice
at the time of the altercation that she had a scrape on her knee. It was not until she
got back to office several hours later that she even noticed that she had a scrape. (R.
3, pg. 32).
2 Court of Appeals
As to his first point of error, the Court of Appeals held that because Harvey had
knocked Deputy Mabry to the ground as he was fleeing from the deputies, that he had
committed assault against a public servant since she suffered a scraped knee.
As to Harvey’s second point of error, the court of appeals held that the error
was waived by the failure to object un the trial court.
GROUND FOR REVIEW (RESTATED)
Whether the evidence was legally insufficient to prove that Harvey caused the injury.
REASONS FOR REVIEW AS TO GROUND FOR REVIEW
1.
Free access — add to your briefcase to read the full text and ask questions with AI
PD-1354-15
NO.
TO THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS
NO. 10-15-0067-CR
IN THE COURT OF APPEALS
FOR THE
TENTH SUPREME JUDICIAL DISTRICT OF TEXAS
AT WACO, TEXAS
CHRISTOPHER DAVID HARVEY, Appellant
V. October 16, 2015 THE STATE OF TEXAS, Appellee
PETITION FOR DISCRETIONARY REVIEW
JOHN DONAHUE ATTORNEY FOR APPELLANT TBA #05968300 CHRISTOPHER DAVID HARVEY th 204 N. 6 St. Waco, Texas 76701 (254) 752-9090 (254) 753-1232 FAX Texascriminalattorney@yahoo.com
ORAL ARGUMENT REQUESTED SUBJECT INDEX PAGE
Identification of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
List of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
GROUND FOR REVIEW
Whether the evidence was legally insufficient to prove that Harvey caused the injury.
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Procedural History of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts Pertinent To Petitioner's Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Ground for Review (Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Reasons for Review as to Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Arguments and Authorities in Support of Petitioner’s Ground for Review . . . . . . 3
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
APPENDIX - Opinion of 10th Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . end
i STATEMENT REGARDING ORAL ARGUMENT
Petitioner respectfully asserts that this Court would be aided in the resolution
of the matters which are the subject of this Petition for Discretionary Review if oral
argument were granted. Therefore, Petitioner respectfully requests that this Court set
this case for oral argument.
IDENTIFICATION OF THE PARTIES
Pursuant to Tex.R.App. 68.4(a), a complete list of the names of all interested
parties is provided below:
Abelino “Abel” Reyna - District Attorney of McLennan County, Texas Robert Moody, Evan O’Donnell - Assistant District Attorneys 219 N. 6th St., Waco, TX 76701
Christopher David Harvey - Appellant #02016029 Byrd Unit 21 FM 247 Huntsville, TX 77320
Felipe “Phil” Martinez - Counsel for Appellant in trial court 1105 Wooded Acres, Suite 200, Waco, TX 76710
John Donahue - Counsel for Appellant on appeal 204 N. 6th St., Waco, TX 76701
Hon. Ralph T. Strother - Presiding Judge
ii LIST OF AUTHORITIES
CASES PAGE
Stone v. State, 919 S.W.2d 424 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . 4
Breaux v. State, 16 S.W.3d 854 (Tex. App. Houston 14th Dist. 2000, pet ref’d) . 4
Johnson v. State, 978 S.W.2d 703 (Tex. App. Corpus Christi 1998), aff’d 23 S.W.3d 1 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATUTES
Tex. Penal Code §22.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp. 2013) . . . . . . . . . . . . 4
iii STATEMENT OF THE CASE
This is an appeal from a jury trial in the 19th District Court, McLennan
County, Texas, the Honorable Ralph T. Strother, presiding, Cause Number 2013-840-
C1. The State instituted proceedings against the Appellant, Christopher David
Harvey, for the offense of assault on a public servant, a third degree felony. Tex.
Penal Code §22.01. There were two enhancement allegations which made the range
of punishment 25 years to life in prison. Tex. Penal Code §12.42(d). Harvey pleaded
not guilty and a jury trial commenced. Harvey was convicted and punishment was
assessed by the jury at 65 years in TDC. No fine was imposed.
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On February 25, 2015, Mr. Harvey timely filed his Amended Notice of Appeal.
His brief was filed on July 21, 2015. The State’s reply brief was filed on August 18,
2015. On September 17, 2015, the Tenth Court of Appeals issued an opinion
overruling Harvey’s points of error and affirming his conviction.
No motion for rehearing was filed. This petition for discretionary review is
being filed within 30 days of the Court of Appeal’s opinion.
1 STATEMENT OF FACTS
On April 9, 2013, two deputies with the McLennan County Sheriff’s Office
went to 2615 Bosque Blvd to serve an arrest warrant on Harvey. (R. 4, ppg. 15, 36).
As the deputies were pulling up to the house, so was the homeowner, Rebekah
Rosario. She gave the deputies consent to enter the house. (R. 3, pg. 37). Once
inside, they told Harvey to turn around and put his hands behind his back. (R. 3, pg.
40). It appeared to the deputies that Harvey did not really want to comply, so they
both grabbed hold of Harvey. Deputy Mabry grabbed her cuffs. (R. 3, pg. 40). The
Deputies testified that Harvey hit Mabry with his shoulder causing her to fall to the
ground. In the course of getting back up, Mabry and Ewing became entangled and
Ewing lost his hold on Harvey, who was able to escape out the front door. (R. 3, ppg.
20, 41-42). Both deputies were wearing uniforms that included long, BDU type
pants. (R. 3, pg. 43). After he escaped, they spent several hours looking for Harvey.
Some of the search included looking into a crawl space underneath the house. (R. 3,
pg. 45). Deputy Mabry testified that her pants were not torn and she did not notice
at the time of the altercation that she had a scrape on her knee. It was not until she
got back to office several hours later that she even noticed that she had a scrape. (R.
3, pg. 32).
2 Court of Appeals
As to his first point of error, the Court of Appeals held that because Harvey had
knocked Deputy Mabry to the ground as he was fleeing from the deputies, that he had
committed assault against a public servant since she suffered a scraped knee.
As to Harvey’s second point of error, the court of appeals held that the error
was waived by the failure to object un the trial court.
GROUND FOR REVIEW (RESTATED)
Whether the evidence was legally insufficient to prove that Harvey caused the injury.
REASONS FOR REVIEW AS TO GROUND FOR REVIEW
1. The Court of Appeals has decided an important question of state or federal law that has not been, but should be, settled by the Court of Criminal Appeals.
2. The Court of Appeals has so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of the Court of Criminal Appeals' power of supervision.
ARGUMENTS AND AUTHORITIES IN SUPPORT OF PETITIONER’S GROUND FOR REVIEW
In order to convict Harvey of this offense, the State was required to prove that
Harvey intentionally, knowingly or recklessly caused bodily injury to Deputy Mabry,
who was then acting as a public servant. Tex. Penal Code §22.01. During the course
3 of the trial, the issue which arose was whether Harvey caused the injury.
The State is required to introduce evidence showing the defendant's guilt. See
TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp. 2013). The evidence is
sufficient under article 1.15 if it embraces every essential element of the offense
charged and establishes the defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427
(Tex. Crim. App. 1996). Breaux v. State, 16 S.W.3d 854, 857 (Tex. App. Houston
14th Dist. 2000, pet ref’d).
In this case, Deputy Mabry testified that she did not notice the scrape on her
knee until she got back to the office, which by her own admission was several hours
later. Further, Deputy Ewing testified that during that period of time they had looked
for Harvey and the search included looking under the house in the crawl space. There
was no testimony that Deputy Mabry complained of or even noticed the injury or
“pain” at the time of the altercation. In essence, the testimony in this trial amounted
to speculation that Harvey caused the injury.
There is no greater "manifest injustice" than to send a person to prison whose
guilt has not been established beyond a reasonable doubt. Johnson v. State, 978
S.W.2d 703, 707 (Tex. App. Corpus Christi 1998), aff’d 23 S.W.3d 1 (Tex. Crim.
App. 2000). While this principle appears most often in cases of the now defunct
factual sufficiency review, Harvey contends that it still applies in cases of legal
4 insufficiency. The evidence in this case was insufficient and his conviction should
be reversed.
Conclusion
Mr. Harvey contends that his conviction should be reversed and a judgment of
acquittal entered.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Mr. Harvey respectfully
requests that this Honorable Court review the transcript of the proceedings in this
case, and after such review, determine that the Court of Appeals improperly decided
his point of error; reverse the decision of the Court of Appeals, and remand to the
Court of Appeals with instructions that a judgment of acquittal be entered.
Respectfully submitted,
/S/ John Donahue JOHN DONAHUE TBA #05968300 204N. 6th St. Waco, Texas 76701 (254) 752-9090 Fax (254) 753-1232 Texascriminalattorney@yahoo.com
5 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Corrected Petition for Discretionary Review was forwarded to the following on October 16, 2015.
/S/ John Donahue JOHN DONAHUE
Sterling Harmon Christopher David Harvey, #02016029 Ass’t District Attorney Ellis Unit McLennan County, Texas 1697 FM 980 Waco, TX 76701 Huntsville, TX 77343 (254) 757-5084 (254) 757- 5021 Sterling.Harmon@co.mclennan.tx.us
6 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4 Certificate of Compliance with Type-Volume Limitation, Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i) because:
O this brief contains 1631 words, including the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1), or,
G this brief uses a monospaced typeface and contains _____ lines of text, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).
2. This brief complies with the typeface requirements and the type style requirements of TEX. R. APP. P. 9.4(e) because:
O this brief has been produced on a computer in conventional typeface using Corel Wordperfect 8.0 in Times New Roman 14 point font in the body of the brief and Times New Roman 12 point font in the footnotes.
G this brief is a typewritten document printed in standard 10 character per inch monospaced typeface.
/S/ John Donahue JOHN DONAHUE Attorney for Appellant Dated: October 16, 2015