ACCEPTED 07-15-00123-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 9/11/2015 2:59:15 PM Vivian Long, Clerk
IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AMARILLO, TEXAS FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS JESTIN ANTHONY JOSEPH § 9/11/2015 2:59:15 PM Appellant, § VIVIAN LONG § CLERK vs. § NO. 07-15-00123-CR § THE STATE OF TEXAS, § Appellee. §
APPEALED FROM CAUSE NUMBER 1343359D IN THE CRIMINAL DISTRICT COURT NUMBER FOUR OF TARRANT COUNTY, TEXAS; THE HONORABLE MICHAEL THOMAS, JUDGE PRESIDING.
§§§ APPELLANT’S BRIEF §§§
J. WARREN ST. JOHN State Bar No. 18986300 2020 Burnett Plaza 801 Cherry Street, Unit No. 5 Fort Worth, Texas 76102-6810 Telephone: (817) 336-1436 Fax:(817) 336-1429 E-mail: jwlawyer@aol.com
Appellant’s Counsel
Oral Argument Is Requested. IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AMARILLO, TEXAS
JESTIN ANTHONY JOSEPH, § Appellant, § § vs. § NO. 07-15-00123-CR § THE STATE OF TEXAS, § Appellee. §
APPEALED FROM CAUSE NUMBER 1343359D IN THE CRIMINAL DISTRICT COURT NUMBER FOUR OF TARRANT COUNTY, TEXAS; THE HONORABLE MICHAEL THOMAS, JUDGE PRESIDING.
J. WARREN ST. JOHN State Bar No. 18986300 2020 Burnett Plaza 801 Cherry Street, Unit No. 5 Fort Worth, Texas 76102-6810 Telephone: (817) 336-1436 Fax:(817) 336-1429 E-mail: jwlawyer@aol.com
Oral Argument Is Requested. LIST OF INTERESTED PARTIES
Pursuant to Rule 38.1, TEX. R. APP. P., the following is a complete listing of all parties to the trial court’s final judgment and their counsel in the trial court; 1. The Honorable Michael Thomas, Criminal District Court Number Four of Tarrant County, Texas, 401 West Belknap Street, Fort Worth, Texas 76196. 2. Honorable Sharen Wilson, Criminal District Attorney for Tarrant County, Texas, 401 West Belknap Street, Fort Worth, Texas 76196, through her Assistants, Honorable Chuck Malin, Honorable G. Brock Groom and Honorable Robert Huseman. 3. Appellant, JESTIN ANTHONY JOSEPH, presently serving his prison sentence, who can be served through his attorney of record, J. Warren St. John. 4. Lisa Haines, 300 Burnett Street, No. 124, Fort Worth, Texas 76102. Appellant’s counsel in the trial court.
i TABLE OF CONTENTS LIST OF INTERESTED PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii CASE IN BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 POINT NUMBER ONE:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 THE COURT’S VERDICT WAS IMPROPER BECAUSE APPELLANT DID NOT KNOW HIS CONDUCT WAS WRONG. (RR. II, III, IV, V)
POINT NUMBER TWO:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 THE TRIAL COURT ERRED IN HOLDING THE EVIDENCE TO BE LEGALLY SUFFICIENT TO SUSTAIN THE CONVICTION OF THE APPELLANT BECAUSE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE APPELLANT DID COMMIT THE OFFENSE OF AGGRAVATED ROBBERY WITH A DEADLY WEAPON, TO-WIT: A FIREARM BECAUSE HE DID NOT POSSESS THE MENTAL CAPACITY TO COMMIT THE OFFENSE. (RR. II, III, IV, V)
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ii TABLE OF AUTHORITIES CASES PAGES
Bigby v. State, 892 SW2d 864, 878 (Tex.Crim.App.1994). . . . . . . . . . . . . . . . . . . . . . . 7
Clark v. Arizona, 548 U.S. 735, 779, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Geesa v. State, 820 SW2d 154, 158-62 (Tex.Crim.App.1991). . . . . . . . . . . . . . . . . . . 8
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Matson v. State, 819 SW2d 839, 846 (Tex.Crim.App.1991). . . . . . . . . . . . . . . . . . . . . 8
Moreno v. State, 755 SW2d 866, 867 (Tex.Crim.App.1988). . . . . . . . . . . . . . . . . . . . . 8
Mozen v. State, 991 SW2d 841 (Tex.Crim.App.1999). . . . . . . . . . . . . . . . . . . . . . . . . . 8
Narvaiz v. State, 840 SW2d 415, 423 (Tex.Crim.App., 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ruffin v. State, 270 SW3d 586 (Tex.Crim.App.2008).. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Wicker v. State, 667 SW2d 137, 143 (Tex.Crim.App.1984), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
CODES, RULES AND STATUTES
RULE 9.4 (i) TEX. R. APP. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
RULE 38.1 TEX. R. APP. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
RULE 403 TEX. R. EVID. OBJECTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
RULE 703-705 TEX. R. EVID. OBJECTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
TEXAS PENAL CODE § 801(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
iii IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AMARILLO, TEXAS
JESTIN ANTHONY JOSEPH § Appellant, § § vs. § NO. 07-15-00123-CR § THE STATE OF TEXAS, § Appellee. §
APPEALED FROM CAUSE NUMBER 1343359D IN THE CRIMINAL DISTRICT COURT NUMBER FOUR OF TARRANT COUNTY, TEXAS; THE HONORABLE MICHAEL THOMAS, JUDGE PRESIDING.
TO THE COURT OF APPEALS: THE CASE IN BRIEF
THE INDICTMENT AGGRAVATED ROBBERY WITH A DEADLY WEAPON, TO-WIT: A FIREARM (CR. Vol. I, p. 5) THE PLEA NOT GUILTY BY REASON OF INSANITY (CR. Vol. I, p. 60) THE VERDICT GUILTY TO AGGRAVATED ROBBERY WITH A DEADLY WEAPON, TO-WIT: A FIREARM AS TO COUNT 1 AS CHARGED IN THE INDICTMENT (CR. Vol. I, pp. 60-61) THE PUNISHMENT TWELVE YEARS IN THE INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE (CR. Vol. I, pp. 60-61)
1 STATEMENT OF FACTS The following summary is intended to provide a brief overview of the trial testimony.
Further discussion of the testimony will be reserved for the argument and authorities
section of Appellant’s points of error.
The record indicates that on September 24, 2013, Davage Armstrong went to the
McDonald’s at the 4800 block of the South Freeway in Fort Worth. His son, Kenshay was
also with him. Mr. Armstrong testified that around 9:15 at night that the Appellant
attempted to rob him at gunpoint. The Appellant allegedly robbed Mr. Armstrong for his
keys and some money, had his gun out and pulled the trigger.
Mr. Armstrong pushed the Appellant against the wall; the gun did not discharge. Mr.
Armstrong ran into the back of the store towards the manager’s office. Mr. Armstrong went
outside to look for his son. There, he saw the Appellant again where the gun was
discharged. No one was shot.
Mr. Armstrong ran back into the store to hide. Mr. Armstrong found his son hiding
in the bathroom unharmed.
The Appellant ran away and was arrested by police on a freeway entrance ramp.
Dr. Emily Fallis testified that Mr. Joseph Jestin suffered from schizophrenia and
suffered from a severe mental disorder or defect.
Dr. Reed also testified that the Appellant was mentally ill, but not to the level of
insanity. (RR. Vol. II, III, IV, V)
The Appellant’s attorney presented evidence to establish that Appellant did know
his actions were wrong.
The Appellant’s attorney presented family members to describe Appellant’s bizarre
2 delusions, including hearing voices and telling him what to do. (RR Vol. II, III, IV, V).
The Court returned a guilty verdict. The Court sentenced the Appellant to Twelve
Years in prison. (CR. Vol. I, pp. 60-61) The Appellant gave timely Notice of Appeal to this
Honorable Court. (CR. Vol. I, p. 66)
3 ARGUMENTS AND AUTHORITIES
POINT NUMBER ONE: THE COURT’S VERDICT WAS IMPROPER BECAUSE APPELLANT DID NOT KNOW HIS CONDUCT WAS WRONG. (Vol. II, III, IV, V)
Argument and Authorities:
Under the Texas Penal Code § 801(a), it is an affirmative defense to prosecution
that, at the time of the conduct charged, the actor, as a result of severe mental disease or
defect, did not know that his conduct was wrong. Under Texas law, “wrong” in this context
means illegal”.
Under Ruffin v. State, 270 SW3d 586 (Tex.Crim.App.2008), the Court indicates
Texas law, like that of all American jurisdictions, presumes that a criminal defendant is
sane and that he intends the natural consequences of his acts. Texas law, like that of
many American jurisdictions, excuses a defendant from criminal responsibility if he proves,
by a preponderance of the evidence, the affirmative defense of insanity. This defense
excuses the person from criminal responsibility even though the State has proven every
element of the offense, including the mens rea, beyond a reasonable doubt. The test for
determining insanity is whether, at the time of the conduct charged, the defendant as a
result of a severe mental disease or defect did not know that his conduct was “wrong.”
Under Texas law, “wrong” in this context means “illegal.” Thus, the question for deciding
insanity is this: Does the defendant factually know that society considers this conduct
against the law, even though the defendant, due to his mental disease or defect, may think
that the conduct is morally justified?
Insanity is the only “diminished responsibility” or “diminished capacity” defense to 4 criminal responsibility in Texas. These “diminished” mental-state defenses, if allowed,
would permit exoneration or mitigation of an offense because of a person’s supposed
psychiatric compulsion or an inability to engage in normal reflection or moral judgment.
Such defenses refer to a person’s lesser or impaired mental ability (compared to the
average person) to reason through the consequences of his actions because of a mental
disorder. The Texas Legislature has not enacted any affirmative defenses, other than
insanity, based on mental disease, defect, or abnormality. Thus, they do not exist in
Texas.
But both physical and mental diseases or defects may affect a person’s perception
of the world just as much as they may affect his rational understanding of his conduct or
his capacity to make moral judgments. For example, suppose that a blind person is sitting
on his front porch and hears what he thinks is a trespasser coming up his walk. He shoots
at the person to scare him away, knowing that it is illegal to shoot people, even
trespassers. The “trespasser” turns out to be a uniformed police officer who is coming to
serve a subpoena. The blind man may be prosecuted for aggravated assault with a deadly
weapon, but he cannot be convicted of aggravated assault of a police officer if, because
of his blindness, he did not see the uniform and did not know that the person was a police
officer. Evidence of the defendant’s blindness would, of course, be relevant and
admissible to rebut the State’s assertion that the defendant intended to shoot at a police
officer. Such evidence might be elicited from the defendant, a lay witness mother, brother,
friend, or neighbor, or from an expert, an optometrist, physician, etc. Courts routinely admit
evidence of a physical abnormality offered to prove a lack of mens rea.
In Texas, the same rule applies to evidence of a mental disease or defect offered
5 to rebut or disprove the defendant’s culpable mens rea. If, instead, of blindness, the
defendant suffers from mental delusions such that he sees “trespasser” or a “Muslim” when
everyone else around him sees a police officer, he cannot be convicted of intentionally
shooting at a police officer, although he may be convicted of intentionally shooting at a
trespasser or Muslim. Guilt of the greater offenses requires that the State prove, beyond
a reasonable doubt, that the defendant intended to shoot a police officer, not a trespasser
or Muslim. That is the required mens rea and that is the State’s constitutional burden of
proof.
The defendant’s right to present a defense generally includes the due-process right
to the admission of competent, reliable, exculpatory evidence to rebut any of those
elements. Indeed, the Supreme Court has repeatedly struck down “arbitrary rules that
prevent whole categories of defense witnesses from testifying.” Quite recently, however,
the Supreme Court upheld Arizona’s wholesale exclusion of expert psychiatric testimony
concerning mental illness offered to rebut proof of the defendant’s mens rea.
The Court, however, had already held that such expert evidence might be relevant,
reliable, and admissible to rebut proof of the defendant’s mens rea. We, like the dissenting
justices in Clark v. Arizona, 548 U.S. 735, 779, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006),
have confidence that our Texas judges and juries are sufficiently sophisticated to evaluate
expert mental-disease testimony in the context of rebutting mens rea just as they are in
evaluating an insanity or mental-retardation claim. Of course, such evidence may, in a
particular case, be excluded under other evidentiary rules, such as Rules 403 or 703-705,
if the probative value of the proffered evidence is substantially outweighed by the danger
of unfair prejudice, if the expert is insufficiently qualified, or the testimony is insufficiently
6 596 relevant or reliable under our state’s guidelines for expert testimony. Such evidence
may also be excluded if it does not truly negate the required mens rea.
In Bigby v. State, 892 SW2d 864, 878 (Tex.Crim.App.1994), the Court stated that
several expert witnesses testified that Appellant knew his conduct was illegal, however,
these experts contended that Appellant did not know the act was “morally” wrong. In other
words, Appellant believed that regardless of society’s views about this illegal act and his
understanding it was illegal, under his “moral” code it was permissible. This focus upon
Appellant’s morality is misplaced. The question of insanity should focus on whether a
Defendant understood the nature and quality of his action and whether it was an act he
ought to do. By accepting and acknowledging his action was “illegal” by societal standards,
he understood that others believed his conduct was “wrong”.
Thus, the question for deciding insanity is; does the Defendant factually know that
society considers this conduct against the law, even though the Defendant, due to his
mental disease or defect, may think the conduct is morally justified. Mr. Joseph fit this
definition to a tee based on Dr. Fallis’ evaluation. (RR Vol. II, pp. 108-136) Dr. Reed also
testified that Appellant suffered from mental illness, not to the level of insanity.
It is clear the Appellant met his burden of proof to show that he was insane at the
time of the offense, but the Court chose to disregard Mr. Joseph’s severe mental illness
and sad existence.
The Appellant did not know his conduct was illegal at the time of the incident and
thus is not guilty by reason of insanity.
7 POINT NUMBER TWO: THE TRIAL COURT ERRED IN HOLDING THE EVIDENCE TO BE LEGALLY SUFFICIENT TO SUSTAIN THE CONVICTION OF THE APPELLANT BECAUSE THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE APPELLANT DID COMMIT THE OFFENSE OF AGGRAVATED ROBBERY WITH A DEADLY WEAPON, TO-WIT: A FIREARM BECAUSE HE DID NOT POSSESS THE MENTAL CAPACITY TO COMMIT THE OFFENSE. (RR. II, III, IV, V)
In reviewing the legal sufficiency of the evidence to support a conviction, we view
the evidence in the light most favorable to the verdict. Narvaiz v. State, 840 SW2d 415,
423 (Tex.Crim.App.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1422, 122 L.Ed.2d 791
(1993). The critical inquiry is whether, after so viewing the evidence, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.
Moreno v. State, 755 SW2d 866, 867 (Tex.Crim.App.1988) “This familiar standard gives
full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The sufficiency of the evidence is a question of law. The issue on appeal is not
whether the court believes the State’s evidence or believes that the defense’s evidence
outweighs the State’s evidence. See Matson v. State, 819 SW2d 839, 846
(Tex.Crim.App.1991); Wicker v. State, 667 SW2d 137, 143 (Tex.Crim.App.), cert. denied,
469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984). The verdict may not be overturned
unless it is irrational or unsupported by proof beyond a reasonable doubt.
Matson, 819 SW2d at 846. The standard for review is Geesa v. State, 820 SW2d 154,
158-62 (Tex.Crim.App.1991).
8 The State of Texas did not meet its burden of proof, proof beyond a reasonable
doubt, in that it failed to prove that Appellant committed the offense as is set out in the
indictment. Federal Courts indicate that a reasonable doubt is a doubt based on reason
and common sense after a careful and impartial consideration of all evidence in the case.
It is the kind of doubt that would make a reasonable person hesitate to act in the most
important of his own affairs. Proof beyond a reasonable doubt, therefore, must be proof
of such a convincing character that you would be willing to rely and act upon it without
hesitation in the most important of your own affairs. The Appellant lacked the mens rea
to commit the offense of Aggravated Robbery with a Deadly Weapon, To-Wit: a Firearm
against Mr. Armstrong. The Appellant’s conviction should be reversed.
9 SUMMARY OF ARGUMENT
The Court returned an improper verdict because the Appellant did not know his
conduct was wrong.
The Trial Court erred in holding the evidence to be sufficient to sustain the
conviction of the Appellant because the evidence was insufficient to establish that the
Appellant had committed the offense of Aggravated Robbery with a Deadly Weapon, To-
Wit: a Firearm based on lack of mens rea.
10 CONCLUSION AND PRAYER
Appellant has presented two independent points of error, any of which, if sustained,
would warrant reversal of the case. Appellant therefore prays that his conviction be
overturned with instructions that the trial court acquit Appellant of all charges against him.
Alternatively, Appellant requests reversal of the conviction against him and remand to the
trial court for a new trial. Finally, Appellant requests further relief either in law or in equity
to which he is justly entitled.
Respectfully Submitted,
/S/ J. Warren St. John J. WARREN ST. JOHN State Bar No. 18986300 2020 Burnett Plaza 801 Cherry Street, Unit No. 5 Fort Worth, Texas 76102-6810 Telephone: (817) 336-1436 Fax:(817) 336-1429 jwlawyer@aol.com
ATTORNEY FOR APPELLANT
11 CERTIFICATE OF SERVICE
A copy of this brief has been delivered to the Honorable Chuck M. Mallin, Assistant
District Attorney, Tim Curry Criminal Justice Center, 401 W. Belknap Street, Fort Worth,
Texas 76196 and mailed to Appellant, JESTIN ANTHONY JOSEPH, on this 11th day of
September, 2015.
/S/ J. Warren St. John
12 CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)
Certificate of Compliance with Type-Volume Limitation
This brief contains 2,509 words, in compliance with TEX.R.APP.P 9.4(i)
DATED: September 11, 2015