ACCEPTED 03-15-00247-CR 5924535 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/2/2015 3:20:31 PM JEFFREY D. KYLE CLERK IN THE THIRD COURT OF APPEALS
FOR THE STATE OF TEXAS FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/2/2015 3:20:31 PM KAYLA JEAN LARDIERI, JEFFREY D. KYLE Appellant Clerk
NO. 03-15-00247-CR V.
THE STATE OF TEXAS, Appellee
APPELLANT'S BRIEF
On appeal from the 207th Judicial District Court of Comal County, Texas Trial Court Cause No. CR2014-090 Honorable Dib Waldrip, District Judge Presiding
Paul A. Finley State Bar No. 07023300 Reagan Burrus, PLLC 401 Main Plaza, Suite 200 New Braunfels, Texas 78130 Telephone: (830) 625-8026 Facsimile: (830) 625-4433 Email: pfinley@reaganburrus.com
Oral Argument is Respectfully Requested IDENTITIES OF PARTIES AND COUNSEL
Pursuant to the provisions of Rule 38.1 (a), Texas Rules of Appellate Procedure, a complete list of the names of all parties to this action and counsel are as follows:
Parties: Kayla Jean Lardieri, Appellant
State of Texas, Appellee
Attorney for the Appellant: Paul A. Finley State Bar No. 07023300 Reagan Burrus PLLC 401 Main Plaza, Suite 200 New Braunfels, Texas 78130 Telephone: (830) 625-8026 Facsimile: (830) 625-4433 Email: pfinley@reaganburrus.com
Attorney for the State: Chari L. Kelly State Bar No. 24057939 Assistant Criminal District Attorney 150 N. Seguin Avenue, Suite 307 New Braunfels, Texas 78130 Telephone: (830) 221-1300 Facsimile: (830) 608-2008 Email: kellyc@co.comal.tx.us . TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ............................................ i
TABLE OF CONTENTS .......................................................................... ii
INDEX OF AUTHORITIES ..................................................................... iii
STATEMENT OF THE CASE ................................................................ 1
STATEMENT REGARDING ORAL ARGUMENT ................................... 1
SUMMARY OF FACTS .......................................................................... 3
SUMMARY OF ARGUMENT ............................................................... 10
ISSUE ONE: ................................................................................... 7
ISSUE TWO: ................................................................................. 11
ISSUE THREE: ................................................................................. 15
PRAYER .............................................................................................. 19
CERTIFICATE OF COMPLIANCE ....................................................... 20
CERTIFICATE OF SERVICE ............................................................... 20
ii INDEX OF AUTHORITIES
Amaya v. State, 733 S.W.2d 168 (Tex. Crim. App. 1986) ................ 13 Barnes v. State, 56 S.W.3d 221 {Tex. App.- Fort Worth 1998) ....... 17 Beier v. State, 687 S.W.2d 2 (Tex. Crim. App. 1985) ................. 13, 17 Brooks v. State, 580 S.W. 2d 825 (Tex. Crim. App. 1979) ................. 9 Everett v. State, 216 S.W.2d 281 (1949) ............................................ 9 Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000) ........ 10, 12, 18 Lawton v. State, 913 S.W.2d 542 (Tex. Crim. App. 1995) .................. 9 Miranda v. State, 813 S.W.2d 724 (Tex. App.- San Antonio 1991) ... 9 Woods v. State, 749 S.W.2d 246 (Tex. App.- Fort Worth 1988) ..... 13
STATUTES AND RULES
Texas Penal Code§ 7.02(a)(2) ........................................................ 10 Texas Penal Code§ 7.02(b) ........................................................... 10
Texas Penal Code Ann. § 29.02(a)(2)(Vernon 1994) ....................... 12 Texas Penal Code Ann.§ 7.01(a) .............................................. 13, 17 Texas Penal Code Ann.§ 7.02(a)(2) .................................... 12, 13, 17 Texas Penal Code Ann.§ 7.02(b) .............................................. 10, 17
iii TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
COMES NOW KAYLA JEAN LARDIERI, Appellant in this case, by and
through her attorney of record, PAUL A. FINLEY, and, pursuant to the
provisions of Tex. R. App. Pro. 38, et. seq., files this brief on appeal.
STATEMENT OF THE CASE
Appellant was indicted in Cause No. CR2014-090 for the offenses of
Attempted Capital Murder, Aggravated Kidnapping, Aggravated Sexual
Assault, Aggravated Robbery, and Tampering with Evidence. (CR Vol. 1, p.
6-1 0). The Appellant entered pleas of Not Guilty to each charge. A jury
found Appellant guilty of Aggravated Capital Murder, Aggravated
Kidnapping, Aggravated Robbery, and Tampering with Evidence on
February 9, 2015. (CR Vol. 1, pp. 12-30). Appellant was acquitted of the
offense of the Aggravated Sexual Assault. (CR, Vol. 1, p. 17). The Court
assessed punishment at 30 years confinement on the Attempted Capital
Murder, Aggravated Kidnapping, and Aggravated Robbery charges and 10
years confinement on the Tampering with Evidence charge. (CR, Vol. 1, pp.
35-47). The convictions and sentences were assessed to run concurrently.
(CR Vol. 1, pp. 35-47). Appellant gave notice of appeal on April28, 2015.
1 STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument in this case. Oral argument will aid
the Court's decisional process in this case.
ISSUES PRESENTED
ISSUE ONE: THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE CONVICTION OF ATTEMPTED CAPITAL MURDER AGAINST THE APPELLANT.
ISSUE TWO: THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE CONVICTION OF AGGRAVATED ROBBERY AGAINST THE APPELLANT.
ISSUE THREE: THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE CONVICTION OF TAMPERING WITH EVIDENCE AGAINST THE APPELLANT.
2 SUMMARY OF FACTS
On December 8, 2013, the Comal County Sherri's office was
dispatched to a residence at Canyon Lake, Texas, for a woman who had
been found naked in a vehicle outside the residence. Sheriff's deputies
found the woman manacled by the feet with multiple cuts and lacerations.
Upon further investigation, it was learned that the woman had been tasered
and cut with knives at a residence across the street from where she was
found. She had been wrapped in a sheet naked, handcuffed, hogtied, with
a tennis ball gag placed in her mouth, and carried to a locked shed outside
the residence where she was left. The woman was able to climb out of a
window in the building after removing the handcuffs and crawled across the
street where she was found.
It was determined that the Appellant along with four other individuals
had some role in the events for which Appellant was indicted. Testimony
from multiple witnesses at trial indicated that Appellant was involved in
tasering the woman, had brandished a knife at some point in the
confrontation with the woman and had participated in the woman being
wrapped in the sheet, handcuffed, manacled, and placed in the shed.
Appellant herself testified that she held a knife, that the woman got cut
as a result of that, and that Appellant did participate in restraining the victim
3 and assisting in her being placed in the shed. Appellant testified that she
never intended to kill the victim and three of the other Co-Defendants each
testified that there was no discussion between the Co-Defendants of an
intent to kill the victim. The victim herself testified she never heard any
discussion between any of the Co-Defendants of an intent to kill her.
After the victim was placed in the shed, the Co-Defendants left the
scene. Some of the victim's belongings were taken from the scene by one
of the Co-Defendants, Trace Smith. However, there was no testimony that
the Defendant participated in the removing of any of the victim's property.
Both the Appellant and Co-Defendant, Trace Smith, testified that the
Appellant did not remove the victim's property from the premises nor assisted
with such removal. Later, Co-Defendant, Trace Smith, took the victim's
property to a burn pile and attempted to burn it. Although the Appellant was
with Co-Defendant, Trace Smith, at a house at the location of the burn pile,
both Appellant and Co-Defendant, Trace Smith, denied that the Appellant
participated in or knew that Trace Smith was going to burn the property.
At the conclusion of the presentation of the evidence, the jury convicted
Appellant of the charges of Attempted Capital Murder, Aggravated
Kidnapping, Aggravated Robbery, and Tampering with Evidence. The jury
acquitted Appellant of the charge of Aggravated Sexual Assault. The Court
4 sentenced the Appellant to 30 years confinement on the Attempted Capital
Murder, Aggravated Kidnapping, and Aggravated Robbery charges and 10
years confinement on the Tampering with Evidence conviction with the
sentences to run concurrently.
5 SUMMARY OF ARGUMENT
Appellant was convicted of four offenses, Attempted Capital Murder,
Aggravated Kidnapping, Aggravated Robbery, and Tampering with
Evidence. Appellant was sentenced to thirty years confinement in the Texas
Department of Criminal Justice- Institutional Division with the sentences to
run concurrently. Appellant contends that the evidence is factually
insufficient to support the convictions on the counts of Attempted Capital
Murder, Aggravated Robbery, and Tampering with Evidence.
6 ISSUE ONE (RESTATED): THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE CONVICTION OF ATTEMPTED CAPITAL MURDER AGAINST THE APPELLANT.
At the trial, the jury was charged with Count I (Attempted Capital
Murder). The charge instructed the jury that they could find Appellant guilty
of Attempted Capital Murder if they found she attempted to intentionally
cause the death of DANA HUTH by stabbing her, striking her with Appellant's
hand or by Appellant hitting her with her foot and that the
Appellant was in the course of committing or attempting to commit
kidnapping. Alternatively, the jury was charged that they could convict the
Appellant of Attempted Capital Murder if they found that Appellant entered
into a conspiracy with one or more of four individuals to commit Aggravated
Kidnapping and in the attempt to carry out said conspiracy one of the
conspirators attempted to cause the death of DANA HUTH by the means
identified above, that the offense of Attempted Capital Murder was
committed in furtherance of the conspiracy to commit Aggravated
Kidnapping and that the Appellant should have anticipated that one of
conspirators would attempt to intentionally cause the death of DANA HUTH.
There was no testimony during trial that any one of the Co-Defendants
ever intended to kill the complainant. One of the Co-Defendants called by
the State, SHEENA HOPKINS, testified there was never any discussion
7 between the Co-Defendants about killing the complainant. (R. R. Vol. 4, p.
183). Another Co-Defendant, TRACE SMITH, said the same. (R.R. Vol. 5,
p. 39). Another Co-Defendant, HEATHER RICHARDS, echoed that. (R.R.
Vol. 5, p. 108). RICHARDS said they just wanted to scare her (R.R. Vol. 5,
p. 108) didn't want her to stay around, but to go back home (R.R. Vol. 5, p.
109).
The Appellant testified that she understood that HEATHER
RICHARDS just wanted to talk to the complainant and to scare her off. (R.R.
Vol. 6, p. 29). The Appellant testified she had no idea what MS. RICHARDS
was talking about, like her method to scare her off. (R.R. Vol. 6, p. 30). The
Appellant said there was never any discussion between the Co-Defendants
about killing the complainant. (R.R. Vol. 6, p. 71 ). Appellant testified she
didn't intend to kill the complainant (R.R. Vol. 6, p. 59). The Appellant said
she didn't want the complainant to die. (R.R. Vol. 6, p. 94) .. The Appellant
said she never knew that HEATHER RICHARDS was going to touch the
complainant (Vol. 6, p. 102). The investigating detective confirmed that as
part of his investigation that from the statements that were taken of the Co-
Defendants and the complainant that it was not the intent of the Co-
Defendants to kill the complainant. (R.R. Vol. 4, p. 123). The complainant
8 herself never indicated she heard any discussion about the Co-Defendants
intending to kill her.
In order to establish liability as a party for the conduct of another for
the conduct of another in addition to the illegal conduct by the primary actor,
it must be shown that the accused harbored the specific intent to promote or
assist the commission of the offense, i.e., murder. Lawton v. State, 913
S.W.2d 542 (Tex. Crim. App. 1995). The accused must know he was
assisting in the commission of the offense. Amaya v. State, 733 S.W.2d 168
(Tex. Crim. App. 1986). The Court has required a higher level of complicity
for those denoted as parties as opposed to primary actors. Amaya, ld.
Further, there must be an agreement between parties before or
contemporaneous with the criminal event to make one liable as a party.
Miranda v. State, 813 S.W.2d 724 (Tex. App. -San Antonio 1991 ). There
must be a common design to do a criminal act to make one culpable as a
party. Everett v. State, 216 S.W.2d 281 (1949); Brooks v. State, 580 S.W.
2d 825 (Tex. Crim. App. 1979).
In a review of factual sufficiency of the evidence, the evidence IS
viewed in a neutral light and set aside if "proof of guilt" is so obviously weak
as to undermine confidence in the jury's determination, or the proof of guilt,
9 although adequate if taken alone, is greatly outweighed by contrary proof.
Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000).
There was insufficient evidence from the record to support a conviction
against the Appellant for Attempted Capital Murder either by her own conduct
or by the conduct of another for which she would be criminally responsible
under§ 7.02(a)(2) of the Texas Penal Code. Further, there was insufficient
evidence to support a conviction on the theory that Appellant should have
anticipated that one of the conspirators would attempt to kill the complainant
as an alternative charge under§ 7.02(b) of the Texas Penal Code.
10 ISSUE TWO (RESTATED): THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE CONVICTION OF AGGRAVATED ROBBERY AGAINST THE APPELLANT.
At trial, the jury was charged with Count IV (Aggravated Robbery). The
charge instructed the jury that they could convict the Appellant if they found
that while in the course of committing theft and with intent to obtain or
maintain control of property, the Appellant either intentionally or knowingly
did threaten or place DANA HUTH in fear of death or imminent bodily injury
and that the Appellant used a deadly weapon, to-wit, a knife, or did
intentionally or knowingly or recklessly caused serious bodily injury to DANA
HUTH by stabbing her with a knife, striking her with the hand of Appellant,
or by hitting her with the foot of Appellant. Alternatively, the jury was charged
that they could convict Appellant with Aggravated Robbery if they found that
Appellant entered into a conspiracy with at least one of four people named
in the charge to commit Aggravated Kidnapping and in the attempt to commit
this conspiracy one or more of the conspirators committed Aggravated
Robbery as defined previously in furtherance of the conspiracy and the
Appellant should have anticipated that Aggravated Robbery would be
committed by the co-conspirators.
Appellant testified that she didn't intend to rob the complainant and
didn't intend to put any of complainant's items in a bed sheet that was carried·
11 from the trailer (R.R. Vol. 6, p. 59). The Appellant said she never had the
phone, clothes, or backpack of the complainant (R.R. Vol. 6, p. 105). TRACE
SMITH said he was the only one who hauled away anything of the
complainant's from the crime scene and that there was never any discussion
with the Appellant about removing the complainant's backpack from the
trailer. (R.R. Vol. 5, p. 42). SMITH said the Appellant took nothing of the
complainant's from the trailer. (R. R. Vol. 5, p. 44 ).
In a review of factual sufficiency of the evidence, the evidence is
viewed in a neutral light and set aside if "proof of guilt" is so obviously weak
as to undermine confidence in the jury's determination, or the proof of guilt,
although adequate if taken alone, is greatly outweighed by contrary proof.
The Texas Penal Code defines Robbery as: "A person commits an
offense if, in the course of committing theft and with intent to obtain or
maintain control of the property, he intentionally or knowingly threatens or
places another in fear of imminent bodily injury or death." Texas Penal Code
Ann. § 29.02(a)(2)(Vernon 1994). The offense becomes aggravated if the
person "uses or exhibits a deadly weapon." ld. § 29.03(a)(2).
A person is criminally responsible as a party to an offense if the offense
is committed by his own conduct, by the conduct of another for which he is
12 criminally responsible, or by both. Texas Penal Code Ann. § 7.01 (a). A
person is criminally responsible for another person's conduct if acting with
intent to promote or assist the commission of the offense, he solicits,
encourages, directs, aids, or attempts to aid the other person to commit the
offense. Texas Penal Code Ann. § 7.02(a)(2).
To convict, a defendant must not only be physically present at the
commission of offense but must encourage its commission by acts, words,
or other agreement. Barnes v. State, 56 S.W.3d 221 (Tex. App.- Fort Worth
1998). To be convicted as a party, an accused's actions must show an
understanding and common design to commit the offense. Beier v. State,
687 S.W.2d 2 (Tex. Crim. App. 1985). To convict for aggravated robbery
against one by the conduct of another for which he is criminally responsible,
the State must prove that the defendant intended to promote or assist in its
commission and solicited, encouraged, directed, aided, or attempted to aid
in its commission. Woods v. State, 749 S.W.2d 246 (Tex. App.- Fort Worth
1988).
There was insufficient evidence that the Appellant did anything either
directly or as a party to commit theft or otherwise obtain and maintain control
of property belonging to the victim to complete a robbery of the victim. Nor
is there sufficient evidence that the Appellant should have anticipated that
13 theft would be committed against the complainant. All that the evidence
sufficiently supports for culpability against Appellant for this charge is that a
deadly weapon, a knife, was used against the victim.
14 ISSUE THREE (RESTATED): THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO SUPPORT THE CONVICTION OF TAMPERING WITH EVIDENCE AGAINST THE APPELLANT.
At the trial, the jury was charged with Count V (Tampering with
Evidence). The charge instructed the jury that they could convict Appellant
if they found that the Appellant, (1) knowing that an investigation was
pending or in progress, alter, destroy, or conceal a thing to-wit: an iPhone,
the clothing of DANA HUTH, the clothing of said Defendant, or dog chain,
with intent to impair its verity or availability as evidence in the investigation
or (2) did and there, knowing that an offense had been committed, alter,
destroy, or conceal a thing, to-wit: an iPhone, the clothing of DANA HUTH,
the clothing of the said Defendant, or dog chain, with intent to impair its verity
or availability as evidence in the investigation of or official proceeding related
to said offense. Alternatively, the jury was charged that they could convict
the Appellant if they believed that the Appellant entered into a conspiracy
with one of four other individuals to commit the offense of Aggravated
Kidnapping and in the attempt to carry out the conspiracy one or more of the
conspirators knowing that an investigation was pending or in progress or
knowing that an offense had been committed, alter, destroy or conceal one
of the items listed in the alternative paragraph with intent to impair its verity
15 or availability as evidence in the investigation of or official proceeding related
to the offense and the Appellant should have anticipated that one of the co-
conspirators would commit such acts.
There was no evidence at trial that the Appellant directly altered,
destroyed or concealed evidence. Co-Defendant TRACE SMITH testified
that he took the complainant's backpack and the Appellant's clothes and
shoes and burned them. (R.R. Vol. 5, p. 36). SMITH testified that he and
the Appellant did not talk about burning the clothes and other items. (R.R.
Vol. 5, pp. 36-37). SMITH said he hauled things out of the trailer that night
and that the Appellant did not haul anything out of the trailer (R.R. Vol. 5, p.
42 and p. 44). SMITH said there was never any discussion by him with the
Appellant to remove the complainant's backpack from the trailer. SMITH
said he took the stuff out of the complainant's backpack that was disposed
of and placed those items in the burn pile himself. (R.R. Vol. 5, p. 44).
SMITH went on to say that the Appellant was not assisting him in any way in
burning items (R.R. Vol. 5, p. 52) and was in fact in the house at the time.
(R.R. Vol. 5, p. 44). SMITH said it was his decision that the items should go
in the burn pile. (R. R. Vol. 5, p. 44 ).
The Appellant testified she never saw SMITH take the clothing out of
the house, found out afterwards that SMITH had burned the clothes (R.R.
16 Vol. 6, p. 69), and had stayed in the house the whole time. Co-Defendant
HEATHER RICHARDS testified that the Appellant never spoke to her about
burning evidence. (R.R. Vol. 5, p. 101 ).
A person is criminally responsible as a party to an offense if the offense
is committed by his own conduct, by the conduct of another for which he is
criminally responsible, or by both. Texas Penal Code Ann. § 7.01 (a).
One alternative to be responsible as a party for the conduct of another
one must "acting with intent to promote or assist the commission of the
offense, solicits, encourages, and/or attempts to aid the other person to
commit the offense. Texas Penal Code Ann. § 7.02(a)(2). One may also be
responsible for the conduct of another when in the course of a conspiracy to
commit one felony another felony is committed and was one that should have
been anticipated in carrying out the conspiracy. Texas Penal Code Ann.
§7.02(b).
Mere presence alone without evidence of intentional participation is
insufficient to convict a defendant as a party. Beier v. State, 687 S.W.2d 2
(Tex. Crim. App. 1985). The State must prove conduct constituting the
offense plus an action by a defendant done with intent to promote or assist
such conduct or encouragement by words or agreement. Beier, ld.
17 In a review of factual sufficiency of the evidence, the evidence is
viewed in a neutral light and set aside if "proof of guilt" is so obviously weak
as to undermine confidence in the jury's determination, or the proof of guilt,
although adequate if taken alone, is greatly outweighed by contrary proof.
The evidence was factually insufficient to support the conviction of the
Appellant for Tampering with Evidence by her own conduct. It was also
factually insufficient to support her being convicted of the offense because
of the conduct of another because of the lack of any evidence to show that
Appellant either solicited, encouraged, directed, aided or attempted to aid
another person to commit the offense. Finally, the evidence was factually
insufficient to support a conviction due to the lack of evidence to support that
Appellant should have anticipated evidence would be tampered with to carry
out the conspiracy.
18 PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
prays that her conviction in the above-entitled and numbered judgments on
the counts addressed be reversed and rendered as a judgment of acquittal
on each of said counts.
Respectfully submitted,
REAGAN BURRUS PLLC 401 Main Plaza, Suite 200 New Braunfels, Texas 78130 Telephone: (830) 625-8026 Direct Line: (830) 358-7473 Facsimile: (830) 625-4433 Email: pfinley@reaganburrus.com
By: fe·sf
PAUL A. FINLEY State Bar No. 07023300
ATTORNEY FOR APPELLANT, KAYLA JEAN LARDIERI
19 CERTIFICATE OF COMPLIANCE
By affixing my signature below, I PAUL A. FINLEY, hereby certify that Appellant's Brief contains 3757 words.
on the 2nd day of July, 2015.
fe-sf
PAUL A. FINLEY
CERTIFICATE OF SERVICE
By affixing my signature below, I, PAUL A. FINLEY, hereby certify that a true copy of "Appellant's Brief' has been mailed to:
Chari Kelly Comal County District Attorney's Office 150 North Seguin, Suite 307 New Braunfels, Texas 78130
on the 2nd day July, 2015.