ACCEPTED 13-15-00085-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 9/3/2015 2:39:40 PM Dorian E. Ramirez CLERK
CAUSE NO. 13-15-00085-CR
IN THE COURT OF APPEALS FILED IN 13th COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT OF TEXAS TEXAS CORPUS CHRISTI/EDINBURG, CORPUS CHRISTI, TEXAS 9/3/2015 2:39:40 PM DORIAN E. RAMIREZ Clerk
JAMARKAS HOLLAND Appellant
V.
THE STATE OF TEXAS Appellee
APPEAL FROM THE 117th JUDICIAL DISTRICT OF NUECES COUNTY, TEXAS, IN TRIAL CAUSE NO. 14-CR-2827-B
APPELLANT’S BRIEF
TRAVIS BERRY
State Bar No. 24059194 P.O. Box 6333 Corpus Christi, Texas 78466 Telephone: (361) 673-5611 Facsimile: (361) 442-2562 travisberrylaw@gmail.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT IS REQUESTED IDENTITY OF INTERESTED PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant lists the
following persons who have an interest in the appeal:
JUDGE: Hon. Sandra Watts 117th District Court 901 Leopard Corpus Christi, Texas 78401
PARTIES: COUNSEL FOR APPELLANT:
Jamarkas Holland - Appellant Nicholas Milam (Trial) TDC: 01982855 Texas Bar No. 14033700 Garza East Unit P.O. Box 18485 4304 HWY. 202 Corpus Christi, Texas 78480 Beeville, Texas 78102
Travis Berry (Appeal) Texas Bar No. 24059194 P.O. Box 6333 Corpus Christi, TX 78466-6333 Telephone: (361) 673-5611
The State of Texas - Appellee COUNSEL FOR THE STATE:
Mark Skurka Elizabeth Schmidt (Trial) Nueces County District Attorney Assistant District Attorney Texas Bar No. 18475570 Texas Bar No. 24079284 901 Leopard - Rm. 206 Corpus Christi, Texas 78401 Emiliano Fragosa Telephone: (361) 888-0410 Assistant District Attorney Texas Bar No. 24081622
ii. TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii.
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii.
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv.
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v.
ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi.
Whether the evidence was sufficient to prove Appellant used a knife in the commission of an assault?
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. State’s Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Defense Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. Closing Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 D. Allen charge by trial court and verdict . . . . . . . . . . . . . . . . . . . . . . . . 8 E. Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
STANDARD OF REVIEW AND APPLICABLE LAW . . . . . . . . . . . . . . . . . . . 11
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
iii. INDEX OF AUTHORITIES CASES PAGE
Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) . 8, 16, 17
Arrevalo v. State, 489 S.W.2d 569 (Tex. Crim. App. 1973) . . . . . . . . . . . . . . . . . . 8
Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) . . . . . . . . . . . . . . . . . 11, 12
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App.2007) . . . . . . . . . . . . . . . . . . 12
Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . 13, 17
Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12
Lockett v. State, 874 S.W.2d 810 (Tex.App.-Dallas 1994, pet. ref'd) . . . . . . . . . 14
McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . 14
Moff v State (April 7, 2004, CCA No. 1343-03) . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Morales v. State, 633 S.W.2d 866 (Tex. Crim. App. 1982) . . . . . . . . . . . . . . . . . 14
Tucker v. State, 274 S.W.3d 688 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . 12
STATUTES AND RULES PAGE
Texas Family Code § 71.0021(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Texas Family Code §71.003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Texas Family Code § 71.005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Texas Penal Code §22.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Texas Penal Code §22.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v., 1, 11, 14 iv. TO THIS HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant, Jamarkas Holland, was accused by indictment on December 4,
2014, of Aggravated Assault under Texas Penal Code §22.02. This charge was
enhanced from a second degree felony to a first degree felony based upon
Appellant’s previous felony conviction to which Appellant pled true. (CR 11, RR7
- 6)
Appellant’s case was tried to a jury and on January 28, 2015, he was found
guilty. Appellant was sentenced by the trial court to seven (7) years in the
Institutional Division of the Texas Department of Criminal Justice. (CR 308, RR7
- 59)
v. ISSUE PRESENTED
Whether the evidence was sufficient to prove Appellant used a knife in the
commission of an assault?
vi. STATEMENT OF FACTS
Appellant, Jamarkas Holland, was charged by indictment of second degree
aggravated assault, in violation of Penal Code §22.02, alleged to have occurred on
August 11, 2014. (CR 11) Punishment on this charge was enhanced to a first
degree felony based on Appellant’s criminal history which carried a range of
punishment of five (5) to ninety-nine (99) years. Appellant had a trial by jury and
elected to be punished by the Court if found guilty.
A. State’s case
1. State’s opening statement
The State believed the evidence would show that Appellant was being
driven from Portland, Texas, to Corpus Christi, Texas, by his girlfriend to be
dropped off at a homeless shelter to end their relationship. (RR4 - 18) That during
this trip, Appellant physically assaulted victim Caitlyn Dewbre during the drive
and Appellant “took out her fishing knife, stabbed it into the dashboard, and
threatened to kill her.” (RR4 - 18)
Once they reached Corpus Christi, Texas, Appellant refused to exit the
vehicle at the homeless shelter. Ms. Dewbre then drove to the nearest convenience
store where Appellant assaulted her again, exited the vehicle, and disappeared.
(RR4 - 19) The defense reserved its opening statement.
1 2. Victim Testimony
The victim in this case, Kaitlyn Dewbre, testified that she and Appellant
were romantically involved and were having to live out of her vehicle in Portland,
Texas.1 She said that on August 10, 2015, Appellant had been drinking beer and
they just “slept ....and wasted the day away.” On the way to a convenience store in
Portland, Texas, they went to get more beer and when their quarrelling escalated,
Appellant punched her in the face. (RR4 - 30-31) This incident led to Ms. Dewbre
wanting to drive Appellant into Corpus Christi, Texas2, to drop him off at the
Good Samaritan shelter. (RR4 - 32)
On the way to the Harbor Bridge, Appellant hit Ms. Dewbre again with his
fist so she stopped the vehicle hoping to see a police car. After not seeing one
drive by, and Appellant refusing to exit her vehicle, she continued on to the
shelter. (RR4 - 35) As they were reaching the Harbor Bridge, Ms. Dewbre stated
that Appellant pulled out her fishing knife, accused her of cheating, and threatened
to kill her, her entire family and their pets. (RR4 - 37)
After Appellant refused to exit her vehicle at the Good Samaritan shelter,
Ms. Dewbre drove to the nearest convenience store. She stated that Appellant
1 Portland, Texas, is located within San Patricio County, Texas. 2 Corpus Christi, Texas is located within Nueces County, Texas.
2 again assaulted her with a roll of duct tape which caused her great pain. (RR4 - 38,
42) After they both entered and exited the convenience store, Ms. Dewbre was
able to get her cellular telephone back from Appellant and call 911. (RR4 - 40)
The State introduced Ms. Dewbre’s 911 call into evidence and played it
back for the jury wherein Appellant is also heard telling the 911 dispatcher that he
was the victim of an assault by Ms. Dewbre. Ms. Dewbre admitted to assaulting
Appellant, but that it was done in self defense after Appellant struck her first.
(RR4 - 47) Ms. Dewbre took photos of the alleged injuries on her own cellular
telephone. These photos were introduced as evidence and published to the jury.
(RR4 48-51; RR8 5-18)
Ms. Dewbre then testified about the pictures taken by the police the night of
the incident which included shots of inside her vehicle showing a puncture to the
dash board. (RR4 - 53-55; RR8 21-25, 31) At some time after the incident, Ms.
Dewbre found a knife cover in the trunk of her vehicle. She said was the cover of
the fishing knife Appellant grabbed and that she found it “hidden under some
stuff” in the trunk. (RR5 - 74)
Ms. Dewbre stated that she never left Appellant because she was afraid of
him, that he would hurt her and her family. (RR5 - 103, 104) Ms. Dewbre again
recounted the trip to the Good Samaritan where she claimed Appellant hit her in
3 the face and threatened her with a knife. (RR5 - 114, 115)
3. Non- Victim Testimony
CCPD Officer Jason Wicks responded to the 911 call at the convenience
store and took a statement from Ms. Dewbre. He later made contact with
Appellant when responding to another call that police had a suspect. Officer
Wicks testified that Appellant was searched and no knife was found. (RR5 - 30)
CCPD Officer Steven Brown arrived at the convenience store to assist in
taking statements from Ms. Dewbre. He testified that he observed a puncture in the
dash board and was told by someone that a “Jamarkas” had stabbed it. (RR5 - 48)
Detective Robin Cassel was assigned to the case and presented it to the
District Attorney’s office for consideration. Detective Cassel testified that on
December 5, 2014, Ms. Dewbre brought her the knife cover she found in the trunk
of her vehicle. Detective Cassel did not test the knife cover for fingerprints to
connect anybody to it, and she never found any knife alleged to have been used by
Appellant. (RR5 - 69, 70, 71)
B. Defense Evidence
The defense called Appellant who testified that he had been drinking beer
throughout the day on August 11, 2014, while Ms. Dewbre drove him around and
purchased his beer. (RR5 - 130, 136, 137, 142). At times, they would panhandle
4 for money. (RR5 - 129, 195) While headed from Portland, Texas, to Corpus
Christi, Texas, tensions arose between Appellant and Ms. Dewbre about dropping
him at the Good Samaritan shelter. (RR5 - 138-143)
Appellant stated that he refused to be dropped at the Good Samaritan. That
he grabed Ms. Dewbre’s cellular telephone while Ms. Dewbre hit the beer from
Appellant’s other hand. (RR5 - 142, 143) A fight ensues within the vehicle
wherein Appellant was struck first by Ms. Dewbre who then stopped the vehicle
on the highway. (RR5 - 143, 144) After resuming driving towards the Harbor
Bridge, Appellant “grabbed her by her hair, to hold her, to subdue her and I hit her
three times on the side of her face, with my right hand.” (RR5 - 146) He also
testified that he threw a roll of duct tape at Ms. Dewbre which hit her right arm.
(RR5 - 147)
Appellant then exited the vehicle, grabbed all of his belongings from Ms.
Dewbre’s vehicle, and left the store with a stranger who offered Appellant a ride
in his vehicle. (RR5 - 148) Appellant exited the stranger’s vehicle a few miles
away where he was arrested soon thereafter. (RR5 - 148, 149) After calling police,
Appellant sees police and believed they were coming to aid him in response to his
911 call rather than arrest him. (RR5 - 149) Appellant testified that on August 11,
2014, Ms. Dewbre hit him “eight or nine times.” (RR5 - 150, 191)
5 During their altercation, Appellant testified that he did not threaten Ms.
Dewbre with a knife. (RR5 - 182) When shown the knife cover, Appellant
confirmed that it he recognized it and that “it goes to a knife that was in the tackle
box.....that was in the trunk of the car.” (RR5 183) Shortly after exiting Ms.
Dewbre’s vehicle, Appellant called 911 to report the incident. (RR5 - 184) The
911 call was admitted into evidence as defense exhibit #6 (RR5 - 185)
On cross-examination, Appellant admitted that he was a foot taller than Ms.
Dewbre, that he had been to prison as a co-defendant to a aggravated assault with
a deadly weapon, that he had taken boxing training but lied upon his arrest about
his prowess and that he was under the influence of alcohol upon arrest. (RR5 -188-
190) Appellant again testified that he never pulled a knife out on Ms. Dewbre and
he never stabbed the dashboard (RR5 - 199)
C. Closing Arguments
The defense started by instructing the jury that the State must prove this
alleged assault, which includes a threat with a knife, occurred in Nueces County,
Texas. (RR6 - 7) The defense argued that Ms. Dewbre’s testimony never
established the State’s jurisdictional requirement to show that this crime occurred
in Nueces County, Texas. (RR6 - 8, 9) The defense then questioned the State’s
deadly weapon allegation as no knife was ever produced nor was Appellant ever
6 connected to the knife cover (RR6 - 9, 10) thus the State failed to meet its burden.
(RR6 - 14)
The defense characterizing this event as a mutual altercation by two people
“abusing drugs and alcohol.” (RR6 - 15) The defense closed by asking the jury
consider Ms. Dewbre’s testimony about her past, abuse both physical and sexual
committed upon her by men, for a motive behind making these allegations against
Appellant. (RR6 - 16, 17)
The State told the jury that to have a deadly weapon finding for an
aggravated assault, it would need to find that the knife was exhibited and that this
act caused Ms. Dewbre to be in fear of imminent bodily injury. (RR6 - 19, 20) The
State argued that the 911 call recordings played for the jury were sufficient to
show Ms. Dewbre’s state of fear as well as to show a lack of fear in Appellant.
(RR6 - 20, 21)
The State believed that Ms. Dewbre’s testimony was sufficient to show that
Appellant did take out a knife and stab it into the dashboard which constitutes a
threat of deadly force. (RR6 - 23, 24) The State argued that Ms. Dewbre’s account
of events was corroborated by the physical evidence, from Ms. Dewbre’s injuries,
to the dash puncture, to the duct tape in the vehicle.
After reminding the jury that Appellant had previously been to prison for
7 aggravated assault involving a knife, the State argued that Ms. Dewbre’s recount
of events was more believable than Appellant’s. (RR6 - 27, 28)
D. Allen charge by trial court and verdict
After considerable deliberation by the jury in this case, they were twice not
able to reach a verdict. (RR6 - 31) The trial court decided to employ an Allen3
charge to attempt to get the jury to have an agreement on the evidence. This
charge informed the jury that the indictment would stay in place, the evidence
would likely be the same at a retrial, and that jury would face the same issues in
deliberation. (RR6 - 32)
The jury found the Appellant guilty of first degree aggravated assault with a
deadly weapon. (RR 6 - 35; CR 308)
E. Sentencing
The State did not recall Ms. Dewbre to testify at sentencing and asked the
trial court consider her trial testimony when deciding its sentence of Appellant.
The State recommended a sentence of twelve (12) years in T.D.C.J.. (RR7 - 6)
The defense called Dr. John Lusins, M.D., phychiastrist who has had
Appellant as a mental patient in the past. Dr. Lusins testified that Appellant had
3 Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). See also Arrevalo v. State, 489 S.W.2d 569, 571-572 (Tex. Crim. App. 1973)
8 multiple disorders coupled with substance abuse which inhibited his ability to
function properly on a daily basis. (RR 7 13-22) Appellant testified about his
history of drug use and mental problems and made a plea for help. (RR7 39-47)
After considering evidence and argument, the trial court assessed a sentence
of seven (7) years in the Institutional Division of the Texas Department of
Criminal Justice. (RR7 - 59, CR 308) It is from this conviction and sentence
Appellant appeals. (CR 312)
9 SUMMARY OF THE ARGUMENT
The evidence presented by the State to prove Appellant used or exhibited a
knife during his altercation with Ms. Dewbre, is insufficient to prove that a knife
was actually present in the vehicle and used by Appellant during the assault. Ms.
Dewbre’s testimony was that her fishing gear was in the trunk of her vehicle. The
cover for a fishing knife was found months later in Ms. Dewbre’s trunk “under
some junk.”
Ms. Dewbre never testified how Appellant came into possession of the
fishing knife, presumably in the trunk of her vehicle during this altercation. The
only evidence seen that could be linked to a knife was a puncture on Ms. Dewbre’s
dashboard which could have come at any time before her altercation with
Appellant and could have been made by many different types of instruments. This
lack of evidence to prove that Appellant used or exhibited a knife during this
assault has led to a conviction that is factually and legally insufficient.
10 APPLICABLE LAW & STANDARD OF REVIEW
TEXAS PENAL CODE § 22.02. AGGRAVATED ASSAULT - (a) A
person commits an offense if the person commits assault as defined in § 22.01 and
the person: (1) causes serious bodily injury to another, including the person’s
spouse; or (2) uses or exhibits a deadly weapon during the commission of the
assault.
TEXAS PENAL CODE § 22.01. ASSAULT. (a) A person commits an
offense if the person: (1) intentionally, knowingly, or recklessly causes bodily
injury to another, including the person’s spouse. (b) The offense is a felony of the
third degree if the offense is committed against a person whose relationship to or
association with the defendant is described by Section 71.0021(b), 71.003, or
71.005, Family Code, if it is shown on the trial of the offense that the defendant
has been previously convicted of an offense under this chapter.4
The Jackson v. Virginia5 legal-sufficiency standard is the only standard that
a reviewing court should apply in determining whether the evidence is sufficient
to support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893 (Tex. Crim.
4 Appellant has a previous conviction under Chapter 22 for aggravated assault. (RR7 - 6) 5 443 U.S. 307 (1979)
11 App.2010)
When reviewing sufficiency of the evidence, we view all of the evidence in
the light most favorable to the verdict to determine whether the jury was rationally
justified in finding guilt beyond a reasonable doubt. Brooks at 898-900 (plurality
opinion). We defer to the fact finder’s resolution of conflicting evidence unless the
resolution is not rational. See Jackson at 319, Clayton v. State, 235 S.W.3d 772
(Tex. Crim. App.2007). Our duty as a reviewing court is to ensure that the
evidence presented actually supports a conclusion that the defendant committed
the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.2007).
A defendant need not file a motion for directed verdict or a motion for new
trial to preserve an appellate claim concerning the sufficiency of the evidence to
prove his guilt. He need not object to the admission of evidence in the trial court to
preserve this issue. He need not claim, in the trial court, that the method by which
the State proved an element of the offense was deficient or defective. In short, a
claim regarding sufficiency of the evidence need not be preserved for appellate
review at the trial level, and it is not forfeited by the failure to do so. Moff v. State
(Tex. Crim. App. No. 1343-03, April 7, 2004)
12 ARGUMENT
ISSUE RESTATED: Whether the evidence was sufficient to prove Appellant used a knife in the commission of an assault?
The State charged Appellant with aggravated assault due to its allegation
that a knife was used in the commission of an assault upon Ms. Dewbre. (CR 11)
Thus the jury can only have found the assault to have been aggravated based upon
the presence and use of a knife during commission of the assault.
Appellant concedes the legal sufficiency of the evidence to support his
conviction for the lesser-included offense of assault, he is asking this Court to
consider reforming his conviction to the lesser-included offense of assault. See
Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999).
Appellant argues that Ms. Dewbre’s testimony alone is not enough evidence
upon which to support a verdict for aggravated assault. While Ms. Dewbre’s
testimony was that Appellant brandished a knife during their in-vehicle
altercation, and that Appellant used the knife to damage her dash-board, it does
not supply the necessary evidence that Appellant actually had or used a knife in
the assault. This evidence would be production of the knife itself which the State
failed to do.
There was no testimony about any identifying details about the knife
13 besides it being a fishing knife. The actual knife was not in evidence and no
testimony was presented by the victim or police that the alleged knife had the
ability to inflict death or serious injury.
When a person is charged with using a deadly weapon, the evidence must
establish that the weapon was actually deadly. Lockett v. State, 874 S.W.2d 810,
814 (Tex.App.-Dallas 1994, pet. ref'd). Under the offense of aggravated assault
with which appellant was charged, a person commits an offense if he commits a
assault and “uses or exhibits a deadly weapon during the commission of the
assault.” Tex. Penal Code §22.02(a)(2), (CR 11). A fishing knife is for removing
fish hooks and other fishing related needs, it is not a deadly weapon by design. See
McCain v. State, 22 S.W.3d 497, 502-03 (Tex. Crim. App. 2000)6
Even without expert testimony or a description of the weapon, the injuries
suffered by the victim can by themselves be a sufficient basis for inferring that a
deadly weapon was used. Tucker v. State, 274 S.W.3d 688 (2008); Also See
Morales v. State, 633 S.W.2d 866, 868-69 (Tex. Crim. App. 1982) (photograph of
deep slash from just underneath the victim’s earlobe across her cheek to the corner
of her mouth, closed by sutures, was sufficient to show that a deadly weapon was
6 “an object that has an obvious purpose apart from causing death or serious bodily injury cannot be a deadly weapon”
14 used).
Had there been an injury consistent with that which could come from a knife
blade, this would go to support the State’s allegation that a knife was used. Here,
no injuries were consistent with that knife, only blunt trauma from Appellant’s
hands. The only “injury” consistent with a knife was the puncture on the dash
which could have come at any time and could have been made by a myriad of
other instruments.
Appellant testified that he did not have a knife during his altercation with
Ms. Dewbre. No knife was found within Ms. Dewbre’s vehicle, nor was one found
on Appellant’s person upon arrest. The only connection to a knife of any type was
a knife cover found months later in Ms. Dewbre’s trunk “under some junk.” At no
time during Ms. Dewbre’s testimony did she describe how Appellant came into
possession of the alleged knife. She never made any indication that Appellant
went searching for this knife that was presumably in the trunk of her vehicle.
A police officer who testified believed that the puncture in Ms. Dewbre’s
dash could have come from a knife but the State provided no expert testimony to
conclusively show what that puncture was made with or how old the puncture was.
An assumption that this puncture came from a knife does not supplant the knife
itself to support Ms. Dewbre’s allegation that Appellant exhibited a knife during
15 their altercation.
What the evidence did show was that Ms. Dewbre had fishing gear in the
trunk of her vehicle. It would be supposed that if Ms. Dewbre had a fishing knife,
that it would have been inside or near the tackle box in the trunk. This supposition
is supported by testimony about the fishing gear and the fact that Ms. Dewbre
found a fishing knife cover in the trunk months after the altercation. With this
evidence that a knife, if it existed, was likely in the trunk - no evidence from Ms.
Dewbre was shown as to how or when Appellant went to the trunk to retrieve the
knife during their altercation on the highway.
The State failed to produce a knife at trial. No evidence or explanation as to
how Appellant obtained the knife while riding in the passenger compartment of
Ms. Dewbre’s vehicle was shown. The police officer’s belief that the dash
puncture could have come from a knife is an acceptable conclusion, except that it
cannot supplant production of the knife itself nor does it rule out that this puncture
could have come before the altercation and could have been made by a different
instrument.
The trial court employed an Allen charge to reach a verdict from this jury as
it was twice deadlocked. (RR6 - 31) This jury was not polled after the trial. (RR6 -
35) Whatever it was that twice deadlocked this jury is unknown but common sense
16 would lead one to the conclusion that the exhibition of a knife during the
altercation between Appellant and Ms. Dewbre is the issue this jury was
deadlocked on. We also never know weather the majority or the minority within
this jury before the Allen charge is the side that eventually prevailed.
Appellant would argue that a rational person would not assume a knife was
involved here just because a person with an interest in the outcome of the trial said
there was a knife, nor would they assume that a random puncture in a dashboard
was made by a knife that was not available in evidence for review.
CONCLUSION
Lack of certain physical evidence coupled with a lack of testimony on how
Appellant was able to get the knife from the trunk while in the passenger
compartment, supports Appellant’s testimony that he did not exhibit or use a knife
in this assault. Appellant is asking this Court to reform his conviction to the
lesser-included offense of assault in the third degree. Collier v. State, 999 S.W.2d
779 (Tex. Crim. App. 1999).
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
this Honorable Court reverse Appellant’s conviction for aggravated assault and
reform the conviction to assault in the third degree, remand the case to the trial
17 court for re-sentencing, and to grant any other such relief to which Appellant may
be entitled.
Respectfully submitted,
/s/ Travis Berry Travis Berry Texas Bar No. 24059194 P.O. Box 6333 Corpus Christi, Texas 78466 T: (361) 673-5611; F: (361) 442-2562 travisberrylaw@gmail.com ATTORNEY FOR APPELLANT
18 CERTIFICATE OF SERVICE
This is to certify that on this September 3, 2015, a true and correct copy of
the Appellant’s Brief has been sent via e-mail to Douglas Norman, appellate
attorney for the State, at the Nueces County District Attorney’s Office, 901
Leopard - Rm. 206, Corpus Christi, Texas 78401.
This is to also certify that on this September 3, 2015, a true and correct copy
of this brief was sent via U.S. Mail to Jamarkas Holland, Appellant, TDC:
01982855, Garza East Unit, 4304 HWY. 202, Beeville, Texas 78102.
/s/ Travis Berry Travis Berry
19 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the
undersigned certifies this brief complies with the type-volume limitations
announced in Rule 9.4(i)(2)(B) of the Texas Rules of Appellate Procedure.
1. The undersigned certifies that the Initial Brief contains no more than
3,653 words in proportionately spaced typeface, an amount of
words within the limits set forth in Rule 9.4(i)(2)(B)
2. The brief has been prepared in proportionately spaced typeface using
WordPerfect 12 in 14 pt. Times New Roman. Footnotes have been used and
are all accounted for in the above word count.
3. The undersigned acknowledges a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits states in Rule
9.4(i)(2)(B) of the Texas Rules of Appellate Procedure, may result in the
Court striking the brief.