ACCEPTED 07-16-00452-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 7/6/2017 10:30 AM Vivian Long, Clerk
NO. 07-16-00452-CR
In the FILED IN COURT OF APPEALS 7th COURT OF APPEALS For the AMARILLO, TEXAS SEVENTH JUDICIAL DISTRICT OF TEXAS 7/6/2017 10:30:54 AM At Amarillo VIVIAN LONG _________________ CLERK
No. 2894 th In the 287 Judicial District Court Of Bailey County, Texas Count III – Retaliation _______________
JOSEPH ALARCON GONZALEZ Appellant
v.
THE STATE OF TEXAS Appellee _______________
BRIEF OF THE APPELLANT _______________
TINA DAVIS RINCONES Law Office of Tina Davis Rincones 109 E 6th Street Plainview, Texas 79072 Telephone (806) 429-0706 Facsimile (806) 553-4424 SBN 24030776
ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED TABLE OF CONTENTS [Rule 38.1(b), Tex. R. App. Proc.]
RECORD REFERENCES .............................................................................................. iv PARTY REFERENCES .................................................................................................. iv INDEX OF AUTHORITIES............................................................................................... v STATEMENT REGARDING ORAL ARGUMENT ................................................... vi STATEMENT OF THE CASE ......................................................................................... i ISSUES PRESENTED ...................................................................................................... 3 1. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS RIGHT TO CONFRONT THE WITNESS AGAINST HIM. ...................................... 3 2. THE TRIAL COURT ERRED BY FAILING TO ADMIT EVIDENCE IN OPPOSITION TO THE RULE OF OPTIONAL COMPLETENESS. ....................... 3 3. THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION IN THIS CASE. ................................................................................................................................ 3 STATEMENT OF FACTS ............................................................................................... 4 ARGUMENT ..................................................................................................................... 7 1. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS RIGHT TO CONFRONT THE WITNESS AGAINST HIM. ...................................... 7 a. Standard of Review ................................................................................................ 7 b. The Law, Generally ............................................................................................... 8 c. The Application of the Law to the Facts .............................................................. 10 2. THE TRIAL COURT ERRED BY FAILING TO ADMIT EVIDENCE IN OPPOSITION TO THE RULE OF OPTIONAL COMPLETENESS. ..................... 10 a. Standard of Review ............................................................................................... 10 b. The Law, Generally ............................................................................................... 11 c. The Application of the Law to the Fact ............................................................ 12 3. THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION IN THIS CASE. .............................................................................................................................. 13 a. Standard of Review ............................................................................................... 13 b. The Law ................................................................................................................. 13 c. The Application of the Law to the Facts .............................................................. 14 CONCLUSION ............................................................................................................... 14 CERTIFICATE OF SERVICE ................................................................................... 15 CERTIFICATE OF WORD COUNT ........................................................................... 15
ii IDENTITY OF PARTIES AND COUNSEL [Rule 38.1(a), Tex. R. App. Proc.]
The following is a complete list of all parties to the trial court’s judgment or
appealable order, as well as the names and addresses of trial and appellate counsel.
Joseph Alarcon Gonzalez, Appellant The State of Texas, Appellee
FOR THE APPELLANT: FOR THE STATE OF TEXAS:
Counsel for Trial by Judge: Counsel for Trial by Judge:
James M. Moore Kathryn H. Gurley Law Office of James M. Moore, P.C. 287th Judicial District Attorney 1705 Avenue K PO Box 729 Lubbock, Texas 79401 Friona, Texas 79035 Phone: 806-747-7373 Phone: 806-250-2050 Fax: 806-747-6031 Fax 806-250-8051 SBN: 24065783 SBN: 10022700
Counsel for Appeal: Counsel for Appeal:
Tina Davis Rincones Kathryn H. Gurley Attorney at Law 287th Judicial District Attorney 109 E 6th Street PO Box 729 Plainview, Texas 79072 Friona, Texas 79035 Tel: (806) 429-0706 Tel: (806) 250-2050 Fax: (806) 553-4424 Fax: (806) 250-8051 SBN: 24030776 SBN: 10022700
iii RECORD REFERENCES
The Clerk’s Record in this case contains one original volume and is referenced in
this brief as “CR.”
In this brief references to the Reporter’s Record will be made by the abbreviation
“RR” followed by the volume, page and line.
PARTY REFERENCES
The Appellant is Joseph Alarcon Gonzalez and shall be referred to as “Gonzalez”
or “Appellant.” The State will be referred to as the “State” or “Appellee.”
iv INDEX OF AUTHORITIES
Cases Bezerra v. State, 485 S.W.3d 133, 143 (Tex. App. – Amarillo 2016) ............................... 11 Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) ......................................... 13 Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ....... 8 Davis v. Alaska, 415 U.S. 308 (1974) .............................................................................. 8 Davis v. State, 169 S.W.3d 660, 665 (Tex. App. Austin 2005, no. pet.). ..................... 7 De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) ............................... 8 Flanagan v. State, 675 S.W.2d 734, 746 (Tex. Crim. App. 1984) ................................... 13 Galliford v. State, 101 S.W.3d 600, 604 (Tex. App. Houston [1st Dist.] 2003, pet. ref.). ................................................................................................................................ 7 Herrera v. State, 915 S.W.2d 94, 98 (Tex. App.- San Antonio 1996, no pet.)................. 13 In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.--Fort Worth 2002, no pet. ........................ 13 Jackson v. Virginia, 433 U.S. 307, 319 (1979) ................................................................. 13 Lagunas v. State, 187 S.W.3d 503, 513 (Tex. App. Austin 2005, no. pet.) .................. 7 Lilly v. Virginia, 527 U.S. 116, 137 (1999) ..................................................................... 7 Kelly v. State, 321 S. W. 3d 583 (Tex. App. Houston [14]-2010 -no pet.) ........................ 12 Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)...................................... 7 Pena v. State, 353 S. W. 3d 797 (Tex. Crim. App. 2011) ................................................. 12 Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001) ......................................... 13 Sauceda v. State, 129 S.W.3d 116, 123 (Tex.Crim.App.2004) ......................................... 11 See Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). ............................... 7 United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004) ......................................... 8 United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005) ............................................ 7 Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) ........................................ 7 Walters v. State, 247 S. W. 3d 204 (Tex. Crim. App. 2007) ............................................. 11 Statutes TEX. PENAL CODE ANN. § 6.01(a) (Vernon 2016) ............................................................ 16 TEXAS RULES OF EVIDENCE, R. 1071(Vernon 2016) ......................................................... 12 TEXAS RULE OF EVIDENCE, Rule 401 (Vernon 2016) ........................................................ 13
v STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument in this case.
vi STATEMENT OF THE CASE
Appellant was indicted in the instant case an August 5, 2015 in a three count
indictment charging him in Count III with the offense of Retaliation a third degree felony;
the subject of this appeal. (CR Vol. 1, P. 9-10). A pretrial hearing was held on November
2, 2016; the trial before a jury began on November 15, 2016 through November 17, 2016.
The jury found Appellant guilty of Count III. (CR Vol. 2, P. 15). Punishment was assessed
by the jury at 7 years in the Texas Department of Criminal Justice; a $1,000.00 fine was
assessed. (CR Vol. 2, P. 21). A Motion for New Trial was filed by trial counsel before the
Judgment was prepared and entered (CR Vol. 2, P. 28-30). The Court entered judgment
on the Jury’s Verdict. (CR Vol. 2, P. 34-35). A subsequent Motion for New Trial was
filed by counsel for the appeal. (CR Vol. 2, P. 47-50). A Notice of Appeal was filed after
the verdict was rendered by the Jury and the Court, on the docket sheet (CR Vol. 2, P. 7);
in the reporter’s record accepted the verdict and rendered judgment (RR Vol. 6, P. 75, L.
19-25 through RR Vol. 6, P. 76, L. 1-18); this appeal ensued. (CR Vol. 2, P. 27).
vii NO. 07-16-00452-CR
In the COURT OF APPEALS For the SEVENTH JUDICIAL DISTRICT OF TEXAS At Amarillo _________________
No. 2894 In the 287th Judicial District Court Of Bailey County, Texas Count III – Retaliation
_______________
TO THE HONORABLE COURT OF APPEALS FOR THE SEVENTH DISTRICT:
COMES NOW JOSEPH ALARCON GONZALEZ, Appellant herein in cause
number 07-16-00452-CR before the Court of Appeals for the Seventh District, Amarillo,
Texas by and through his attorney of record, files this Brief of the Appellant, and in support
thereof would respectfully show this Honorable Court the following:
2 ISSUES PRESENTED
1. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS
RIGHT TO CONFRONT THE WITNESS AGAINST HIM.
2. THE TRIAL COURT ERRED BY FAILING TO ADMIT EVIDENCE IN
OPPOSITION TO THE RULE OF OPTIONAL COMPLETENESS.
3. THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION IN THIS
CASE.
3 STATEMENT OF FACTS
On the morning of May 15, 2015 two room-mates woke up in Muleshoe, Bailey
County, Texas. (RR Vol. 5, P. 37, L. 4-8). The primary room-mate, Appellant, also had his
young son in his possession that morning. (RR Vol. 5, P. 37, L. 14-15). Appellant prepared
his young son for a trip across the street to stay with the young child’s grandmother while
Appellant went to work for the day. (RR Vol. 5, P. 38, L. 2-3). The secondary room-mate,
Victim, remained at the residence. Victim says he and Appellant had a passing conversation
the details of which conflict in each of their memories; Appellant did not relay the same
conversation and the State did not corroborate this conversation as propounded by Victim.
(RR Vol. 5, P. 38, L. 4-9). Victim admits that he smokes a “bowl” of “meth” while Appellant
was dropping off the child across the street. (RR Vol. 5, P. 38, L. 13-18). Appellant comes
back from his brief absences from the residence in question and notices Victim’s van is re-
parked in an awkward manner and doors in the house wide open. (RR Vol. 5, P. 120, L. 7-
9). Appellant comes back and finds Victim in an agitated state, “zooming” and notices a
smell of burnt chemical. (RR Vol. 5, P. 120, L. 20-22) and (RR Vol. 5, P. 121, L. 3-4). It is
undisputed that the Victim was doing his laundry and putting it away in a bedroom in the
residence when Appellant and he next converse. (RR Vol. 5, P. 121, L. 11) and (RR Vol. 5,
P. 39, L. 19-20). Overnight, sometime on May 14, 2015 or May 15, 2015 a shotgun has
arrived at the residence at the hands of Victim. (RR Vol. 5, P. 42, L. 2-5). Appellant goes to
the bedroom sees Victim putting away his laundry and sees the shotgun. (RR Vol. 5, P. 123,
L. 5-8). This causes Appellant great alarm and he picks up the firearm to take it from the
residence. (RR Vol. 5, P. 124, L. 13-18). Appellant jostles the weapon by some unknown
means, perhaps by hitting a door jam and the weapon fires and shoots Victim in his leg. (RR
4 Vol. 5, P. 126, L. 24-25) and (RR Vol. 5, P. 137, L. 2-8). Victim is wounded; Appellant calls
911; emergency personnel arrive; Victim is saved and survives. During the 911 call Appellant
says something that the jury in this matter requested replayed multiple times because it was
inaudible due to static. (RR Vol. 5, P. 201, L. 24 through P. 203, L. 3). When EMS arrives
the Victim states to EMT Robin Claborn “he popped me” with no mention of a threat. (RR
Vol. 4, P. 35, L. 13-23). After the shot but before the 911 call Victim testifies that Appellant
and he exchanged words. (RR Vol. 46, L. 10-15). Appellant said he was being threatened
and felt threatened so he did return a threat against Victim. (RR Vol. 5, P. 129, L. 5-14). The
State alleged the Appellant “threatened to harm another, to-wit: Aaron Chavez by an unlawful
act, to-wit: by “finishing him off”. (CR Vol. 1, P. 9). However, there is no evidence that the
threat was retaliation and not what the Appellant testified a threat to keep harm from himself
[Appellant]. (RR Vol. 5, P. 129, L. 5-14).
At trial the State protested all attempts by defense counsel to adequately cross examine
the victim on his proclivity for the use of mind altering substances, and his extensive criminal
history. The Court agreed with the State and the Appellant was denied effective cross
examination/confrontation of the witness against him. (See generally, RR Vol. 5, P. 35-85).
At trial the State was also allowed to admit incomplete audio/video recordings over
the objection of defense counsel. Defense counsel made bill of exception/review and admitted
the complete recordings for consideration by this honorable Court. (See RR Vol. 4, P. 99-
103).
The jury rejected and acquitted Appellant on the aggravated assault count; found the
Appellant guilty of possession of a firearm by a felon and guilty of felony retaliation. This
appeal followed.
5 SUMMARY OF ARGUMENT
The Appellant was denied his constitutional right to confront the witness against him
when the Court denied defense counsel’s attempts to cross examine the victim on his
criminal history which bears on his credibility and his use of mind altering substances which
affect his memory.
The Appellant was denied a fair trial and due process of law when the Court refused
to admit a complete audio/video recording and instead only admitted the State’s version of
the audio/video recording over the objection of defense counsel citing the “optional rule of
completeness.”
There was legally insufficient evidence to convict Appellant of the offense of
retaliation.
6 ARGUMENT
a. Standard of Review
Generally, a trial court's ruling on the admissibility of evidence is reviewed for an
abuse of discretion. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
An abuse of discretion occurs when the trial court acts without reference to guiding rules
or principles or acts arbitrarily or unreasonably. Galliford v. State, 101 S.W.3d 600, 604
(Tex. App. Houston [1st Dist.] 2003, pet. ref.). Reviewing courts will affirm the trial
court's ruling if it lies within the zone of reasonable disagreement. See Torres v. State,
71 S.W.3d 758, 760 (Tex. Crim. App. 2002).
However, this Court should review de novo the constitutional legal ruling of
whether the Appellant was denied his right to confront the witness against him, in this
case the Victim. See Lilly v. Virginia, 527 U.S. 116, 137 (1999) (When reviewing the
admissibility of out-of-court statements [or in this case statements about drug use to
law enforcement and medical personnel] over a Confrontation Clause objection,
reviewing courts should independently review whether the evidence “satisfies the
demands of the Constitution.”); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App.
2006); See also United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005) (Crawford
issues are reviewed under de novo standard); United States v. Delgado, 401 F.3d 290,
299 (5th Cir. 2005); Lagunas v. State, 187 S.W.3d 503, 513 (Tex. App. Austin 2005,
no. pet.); Davis v. State, 169 S.W.3d 660, 665 (Tex. App. Austin 2005, no. pet.). The
reason for the de novo standard of review is because the legal ruling of whether a
7 statement is testimonial under Crawford “is determined by the standard of an objectively
reasonable declarant standing in the shoes of the actual declarant.” Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).; De La Paz v. State,
273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (Whether a statement is testimonial under
the Confrontation Clause is a question of law); United States v. Cromer, 389 F.3d 662,
675 (6th Cir. 2004) (The inquiry under a Confrontation Clause objection to hearsay is
“whether a reasonable person in the declarant's position would anticipate his statement
being used against the accused in investigating and prosecuting the crime.”). In
Crawford the United States Supreme Court explained that the Confrontation Clause was
based on the English common law tradition of “live testimony in court subject to
adversarial testing.” Crawford, 541 U.S. at 43). The Court noted that this tradition was
in contrast to the European civil law that “condoned[d] examination in private by
judicial officers.” Id.
Crawford rejected the Roberts analysis, holding that although the ultimate goal of
the confrontation clause is to ensure reliability of evidence, “it is a procedural rather
than a substantive guarantee.” Crawford, 541 U.S. at 61. The Opinion states: The
confrontation clause “commands, not that the evidence be reliable, but that reliability be
assessed in a particular manner: by testing in the crucible of cross-examination.” Id.
b. The Law, Generally
The Court explained that the Confrontation Clause provides a procedural
guarantee: “It commands, not that evidence be reliable, but that reliability be assessed
in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541
U.S. at 61. In Davis v. Alaska, 415 U.S. 308 (1974) the Supreme Court explained that
the accused's right to be confronted with the witnesses against him is more than being 8 allowed to confront the witnesses physically. The primary interest secured by
confrontation is the right of cross- examination. The Supreme Court stated,
“Cross-examination is the principal means by which the believability of a witness
and the truth of his testimony are tested. Subject always to the broad discretion of
the trial judge to preclude repetitive and unduly harassing interrogation, the cross-
examiner is not only permitted to delve into the witness' story to test the witness'
perceptions and memory, but the cross-examiner has traditionally been allowed to
impeach, i.e., discredit the witness... [T]he exposure of a witness' motivation in
testifying is a proper and important function of the constitutionality protected right
of cross examination. Davis, 415 U.S. at 316.
Thus the prior opportunity to cross-examine required by Crawford must serve that
same function.
The new Crawford rule, by its position, applies only to testimonial evidence.
Specifically, the Court clarified that the confrontation clause applies to those who “bear
testimony” against the accused.” Crawford, 541 U.S. at 51. “Testimony,” it continued,
is “[a] solemn declaration or affirmation made for the purpose of establishing or proving
some fact.” Id. (quotation omitted). The Court identified three kinds of statements that
could be regarded as testimonial:
(1) “ex parte in-court testimony or its functional equivalent - that is, material such
as affidavits, custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would reasonably expect to
be used prosecutorial[ly]”;
2) “extrajudicial statements... contained in formalized testimonial materials, such
as affidavits, depositions, prior testimony, or confessions”; and 9 3) “statements that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for use at a later
trial.” Id. At 51-52.
c. The Application of the Law to the Facts
The Court in this case at every turn refused defense counsel the opportunity to cross
examine law enforcement and medical professionals regarding admissions by the Victim of
his drug use including but not limited to the frequency, kind and consistent nature of the use.
Further, the Court refused to allow defense counsel to fully cross-examine the Victim
regarding his “clubbing” the night before the events in question. (RR Vol. 5, P. 80, L. 10
through P. 82, L. 13). The Court consistently denied defense counsel the right to elicit
testimony from medical professionals regarding the statements made by the Victim in the
course of his treatment. (RR Vol. 5, P. 93, L. 23 through P. 97, L. 11) and (RR Vol. 5, P. 99,
L. 16 through P. 100, L. 4). This evidence was directly relevant to the clarity and credibility
of the witness. The Appellant’s defense was that Victim was high on meth; possibly drunk
from his night of partying in two locations, Littlefield and Lubbock; lack of sleep which bears
heavily on his memory about the facts that surround the conversations between the two
the morning of this incident and the actions of Appellant. Because Appellant was denied
the opportunity to fully develop these factors the jury was unable to consider the full
credibility of the witness, denying Appellant of his constitutional right of confrontation
of the witness in this case.
Generally, a trial court's ruling on the admissibility of evidence is reviewed for an 10 abuse of discretion. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
An abuse of discretion occurs when the trial court acts without reference to guiding rules
or principles or acts arbitrarily or unreasonably. Galliford v. State, 101 S.W.3d 600, 604
(Tex. App. Houston [1st Dist.] 2003, pet. ref.). Reviewing courts will affirm the trial
court's ruling if it lies within the zone of reasonable disagreement. See Torres v. State,
“The rule of optional completeness is one of admissibility and permits the
introduction of otherwise inadmissible evidence when that evidence is necessary to fully
and fairly explain a matter “opened up” by the adverse party. Walters v. State, 247 S.W.3d
204, 217–18 (Tex.Crim.App.2007); see Sauceda v. State, 129 S.W.3d 116, 123
(Tex.Crim.App.2004) (“The plain language of [Texas Rule of Evidence, Rule 107] indicates
that in order to be admitted under the rule, the omitted portion of the statement must be ‘on
the same subject’ and must be ‘necessary to make it fully understood.’ ”). It is designed to
reduce the possibility of the jury receiving a false impression from hearing only a part of
some act, conversation, or writing. Walters, 247 S.W.3d at 218.” Bezerra v. State, 485
S.W.3d 133, 143 (Tex. App. – Amarillo 2016), (petition for discretionary review refused
(June 15, 2016), cert. denied, 137 S. Ct. 495, 196 L. Ed. 2d 404 (2016)). The evidence
which is used to fully explain a matter opened up by the other party need not be ordinarily
admissible. It must be on the same subject and necessary to make it fully understood.
Walters v. State, 247 S. W. 3d 204 (Tex. Crim. App. 2007). Further, although the audio
portion of a videotape introduced by the state may be hearsay; it was ruled admissible under
the Rule of Optional Completeness because the state relied on the visual portion to prove
its case. TEXAS RULES OF EVIDENCE, R. 107 (Vernon 2016); Pena v. State, 353 S. W. 3d 11 797 (Tex. Crim. App. 2011). Further, evidence can be admissible when the state leaves a
false impression with the jury.
The prevention of the presentation of a defense is subject to constitutional error
analysis. TEXAS RULE OF EVIDENCE, Rule 401 (Vernon 2016) provides that relevant
evidence is evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence. Whether rooted directly in the due process clause of the 14th
Amendment or in the compulsory process or confrontation clause of the 6th Amendment,
the Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense. A trial court's ruling excluding evidence may rise to the level of a
constitutional violation if a trial court's clearly erroneous ruling excludes otherwise relevant,
reliable evidence which forms such a vital portion of the case that exclusion effectively
precludes the defendant from presenting a defense. Kelly v. State, 321 S. W. 3d 583 (Tex.
App. Houston [14]-2010 -no pet.)
c. The Application of the Law to the Fact
The State in this case sought and was allowed to admit a portion of a video/audio tape
retrieved from a much longer and complete video/audio tape from the scene of the offense.
The defense promptly objected that the admission of just a portion of a much longer tape would
violate the Rule of Optional Completeness. Defense counsel made a bill of review/exception
and was allowed to admit the omitted audio/video tape as Defendant’s Exhibit 1 for the
purposes of the bill of review/exception. (See RR Vol. 4, P. 99-103). The Appellant was
denied the opportunity to clarify what was going on at the scene and provide the jury with a
complete picture of the events as they were unfolding. Further, the jury was misled as to the
issue of retaliation. The Court erred and the Appellant was harmed, demanding this case be 12 remanded to the Trial Court for further action consistent with any ruling from the Appeals
Court.
A challenge to the legal sufficiency of the evidence need not be preserved at trial, and
may be raised for the first time on appeal. Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim.
App. 2001). In reviewing a legal sufficiency or “no evidence” claim, the appellate court will
review the evidence in the light most favorable to the verdict, and will determine whether the
trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Jackson v. Virginia, 433
U.S. 307, 319 (1979)). The appellate court will consider all evidence admitted, whether
proper or improper. “Every fact need not point directly and independently to the defendant’s
guilt [citation omitted]. A conclusion of guilt can rest on the combined and cumulative force
of all incriminating circumstances.” Id. The trier of fact is free to believe or disbelieve the
testimony of any witness. Flanagan v. State, 675 S.W.2d 734, 746 (Tex. Crim. App. 1984)
(op. on reh’g).
b. The Law
Retaliation is a result oriented offense. See In re B.P.H., 83 S.W.3d 400, 407 (Tex.
App.--Fort Worth 2002, no pet.); Herrera v. State, 915 S.W.2d 94, 98 (Tex. App.- San
Antonio 1996, no pet.). As a result oriented offense, the action being criminalized is the
threat to harm and the intent to inhibit public service by others. Herrera, 915 S.W.2d at 97.
“A central purpose of the statute is to encourage a certain class of citizens to perform vital
public duties without fear of retribution.” Doyle v. State, 661 S.W.2d 726, 729 (Tex. Crim. 13 App. 1983).
In this case the jury rejected an intentional act alleged in Count I, Aggravated Assault,
finding the Appellant not guilty. However, the jury chose to find Appellant guilty of Count
III, Retaliation. This is an inconsistent result that lacks sufficient evidence to sustain the
jury’s verdict. Appellant was quick to call 911, administer aid and the jury believed these
among other facts did not justify an aggravated assault. (RR Vol. 5, P. 126, L. 23-24) (RR
Vol. 5, P. 129, L. 15-17) and (RR Vol. 5, P. 130, L. 11-12). Further, Appellant testified and
admitted that he told the Victim to say it was him that shot himself, and admitted that he did
this out of fear because he was a convicted felon. No corroborating evidence was produced
to support Victim’s statement at trial that Appellant said he would finish him off was actually
made as a retaliatory threat, instead Appellant testified that he only threatened the Victim
because he was taking an aggressive stance or posture against Appellant. (RR Vol. 5, P. 129,
L. 5-14). The jury was unclear as to the audio evidence produced in the recorded 911 as
evidenced by the statement of “juror” in the Reporter’s Record. (RR Vol. 5, P. 202, L. 1
through P. 203, L. 3).
CONCLUSION
The Appellant was irreparably harmed when the Court denied defense counsel’s
attempts to cross examine the victim on his criminal history which bears on his credibility
and his use of mind altering substances which affect his memory. Appellant was harmed in
this denial and for this reason the Court of Appeals should reverse and render a judgment of
acquittal.
The Appellant was denied a fair trial and due process of law when the Court refused
to admit a complete audio/video recording and instead only admitted the State’s version of 14 the audio/video recording over the objection of defense counsel citing the “rule of optional
completeness” for which Appellant is entitled to a judgment of acquittal.
There was legally insufficient evidence to convict Appellant of the offense of
retaliation; thus Appellant should be released from the bonds of this conviction.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable
Court reverse the conviction and render a judgment of acquittal in this case.
Respectfully Submitted,
/s/ TINA DAVIS RINCONES TINA DAVIS RINCONES Attorney at Law 109 E 6th Street Plainview, Texas 79072 Telephone (806) 429-0706 Facsimile (806) 553-4424 SBN 24030776 Email: trincones@redraiderlaw .com ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the Brief of the Appellee has been emailed to the parties listed below on this 5th day of July, 2017.
Kathryn H. Gurley 287th District Attorney districtattorney@parmercounty.net /s/ TINA DAVIS RINCONES TINA DAVIS RINCONES
CERTIFICATE OF WORD COUNT
I certify that this document contains 4,625 words and is incompliance with the Texas
Rules of Appellate Procedure.
/s/ TINA DAVIS RINCONES TINA DAVIS RINCONES 15