PD-0840-14 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/29/2015 10:32:39 AM January 29, 2015 Accepted 1/29/2015 11:12:10 AM ABEL ACOSTA PD-0840-14 CLERK
IN THE COURT OF CRIMINAL APPEALS SITTING AT AUSTIN, TEXAS _________________________________________________
KEIONA DASHELLE NOWLIN,
PETITIONER
V.
THE STATE OF TEXAS
___________________________________________
ON REVIEW FROM THE TENTH COURT OF APPEALS No. 10-12-00239-CR AN APPEAL OF A CONVICTION IN CAUSE NO. 2011-2523-C1 FROM THE 19TH JUDICIAL DISTRICT COURT OF MCLENNAN COUNTY, TEXAS
____________________________________________
STATE'S BRIEF
ABELINO "ABEL" REYNA GABRIEL C. PRICE Criminal District Attorney Appellate Division McLennan County, Texas State Bar No. 24068071
219 North 6th Street, Suite 200 Waco, Texas 76701 [Tel.] (254) 757-5084 [Fax] (254) 757-5021 [Email] gabe.price@co.mclennan.tx.us i Identity of Parties and Counsel
Petitioner Keiona Dashelle Nowlin
Petitioner’s Trial Attorney Mr. Robert Callahan Mr. Cody Stapp 100 N. 6th St., Waco, Texas 76701
Petitioner’s Attorney on Appeal Mr. John Donahue 204 N. 6th. St. Waco, Texas 76701
State’s Trial Attorney Mr. Robert Moody Mr. Mark Parker Assistant Criminal District Attorneys 219 North 6th Street, Suite 200 Waco, Texas 76701
State’s Attorney on Appeal Abelino ‘ Abel’ Reyna Criminal District Attorney Alex J. Bell Assistant Criminal District Attorney 219 North 6th Street, Suite 200 Waco, Texas 76701
ii Table of Contents
Contents Identity of Parties and Counsel............................................................................ ii Table of Contents .................................................................................................. iii Table of Authorities .............................................................................................. iv Statement of the Case ............................................................................................ v Issues Presented .................................................................................................... vi Statement of Facts ...................................................................................................1 Summary of Argument ..........................................................................................2 Argument .................................................................................................................3 Issue 1 The evidence was legally sufficient to support a conviction ...........3 LAW .......................................................................................................................4 Elements of Hindering Apprehension .................................................................4 Legal Sufficiency ..................................................................................................5 ARGUMENT.........................................................................................................8 Relief ..................................................................................................................13 Prayer ......................................................................................................................16 Certificate of Compliance ....................................................................................16 Certificate of Service .............................................................................................17
iii Table of Authorities
Supreme Court Opinions Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ..... 5, 6
Texas State Opinions Beardsley v. State, 738 S.W.2d 681 (Tex. Crim. App. 1987) ............................... 7 Canida v. State, 434 S.W.3d 163 (Tex. Crim. App. 2014) ................................. 14 Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) ................................. 6 Dillon v. State, 574 S.W.2d 92 (Tex. Crim. App. 1978) ...................................... 7 Gardner v. State, 736 S.W.2d 179 (Tex. App.—Dallas 1987) ............................. 7 Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) ..................................... 7 Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ................................... 6, 7 Menchaca v. State, 901 S.W.2d 640 (Tex. App.—El Paso 1995) ........................ 8 Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012) .................................. 7 Nowlin v. State, 2014 Tex. App. LEXIS 5309 (Tex. App. Waco May 15 2014) . 9 Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) ................................... 6 Sharpe v. State, 881 S.W.2d 487 (Tex. App.—El Paso 1994) ............................. 8 Trejo v. State, 766 S.W.2d 381 (Tex. App.—Austin 1989) ................................. 8
Texas State Statutes Tex. Penal Code Ann. § 38.05(a)(1) (West 2009) ............................................... 4 Tex. Penal Code Ann. § 38.05(d) (West 2009) ................................................... 5
Rules Tex. R. App. P. 9.4(e) ........................................................................................... 14 Tex. R. App. P. 9.4(i) ........................................................................................... 14 Tex. R. App. P. 9.4(i)(1) ....................................................................................... 15
iv Statement of the Case
Petitioner, KEIONA DASHELLE NOWLIN, was charged by indictment with HINDERING APPREHENSION OF A FELON COUNT I
and ESCAPE COUNT II as proscribed by Section 38.05 and 38.06 of the Texas Penal Code. This offense was alleged to have been committed on or about the 13th day of October, 2011, in McLennan County, Texas. 1 CR 6.
Petitioner pled not guilty to both counts. 1 CR 54. Trial was before the court beginning and ending June 26th, 2012 with a verdict of guilty on Count I and not guilty on Count II. Punishment was assessed by the court at four years imprisonment on the Hindering Apprehension Count in the Texas Department of Criminal Justice – Institutional Division and no fine. 1 CR 58. The Tenth Court of Appeals affirmed in a memorandum opinion on May 15, 2014.
v Issues Presented
Petitioner’s Issues Presented and State’s Response to each: 1. The Tenth Court erred in holding that the evidence was sufficient to
prove that Nowlin knew Degrate was being arrested for a felony offense. State’s Response: The Tenth Court correctly held that the evidence was legally sufficient to prove that Nowlin knew that Degrated was charged,
arrested for or convicted of a felony offense. The Tenth Court correctly gave deference to the Trial Court’s factfinding duty and the reasonable inferences the Trial Court relied on in finding Nowlin guilty.
vi Statement of Facts
On October 13, 2011, Deputy U.S. Marshals (The Marshals) were attempting to arrest Demarcus Degrate (Degrate) on a warrant for the offense of Felon in Possession of a Firearm. 4 RR 15. After receiving
information on a potential location for Degrate, The Marshals started to watch that location. 4 RR 16-17. Eventually, The Marshals spotted Degrate and Petitioner (Nowlin) exiting the residence. 4 RR 17. The Marshals called for additional units and then went to execute the warrant on Degrate. 4 RR 19. Nowlin warned Degrate, “Those are the Marshals” and “That’s the laws. Run.” 4 RR 52. Degrate then took off running from The Marshals. 4 RR 19. Nowlin then began to run in a different direction. 4 RR 41. She was eventually stopped by Deputy Marshal Slavich. 4 RR 41. Nowlin was placed in handcuffs and detained in Deputy Slavich’s vehicle. 4 RR 42. Nowlin was then able to manipulate the seatbelt latch, unbuckle herself, open the door of the vehicle and again flee from the scene. 4 RR 43. While fleeing, Nowlin lost her balance and fell head first to the ground. 4 RR 43.
She was then placed under arrest. 4 RR 44. Nowling admitted to Deputy Slavich, “she didn’t want her man to get arrested,” and “she knew he (Degrate) was supposed to come up and turn himself in on Wednesday.”4 RR 52. Nowlin also told Deputy Slavich that she “knew he (Degrate) was out on bond and the bondsman was going off his bond.” 4 RR 53. Nowlin had the name “Demarcus Degrate” tattooed just below her clavicle notch. 4
1 RR 54. Nowlin explicitly told Deputy Slavich that “she warned him (Degrate).” 4 RR 74.
Summary of Argument
The evidence is legally sufficient to prove that Petitioner knew Demarcus Degrate was charged, arrested for or convicted of a felony. The
evidence of the close intimate relationship between Nowlin and Degrate, the actions of Nowlin at the scene, and the admissions that Nowlin made to Deputy Slavich provided a rational basis for the Trial Court’s verdict in this case. In the alternative, Petitioner’s requested remedy is incorrect. The only element being challenged before This Court is the aggravating element of whether Nowlin knew Degrate was charged, being arrested for or convicted of a felony. Where a court finds that the evidence of the aggravating element of an offense is insufficient, the court may reform the verdict to a lesser included offense that was necessarily proven by the remaining evidence and an acquittal in not proper.
2 Argument
Issue 1 The evidence was legally sufficient to support a conviction
Petitioner argued in the Tenth Court of Appeals that the evidence
was legally insufficient to sustain a conviction on two grounds. First, that
the evidence was insufficient to prove that Nowlin “warned” Degrate of
impending discovery or apprehension; Second, that the evidence was
insufficient to prove Nowlin knew that Degrate was charged with a felony
offense. The Tenth Court of Appeals, in a memorandum opinion, rejected
both arguments, holding the evidence was legally sufficient to uphold the
conviction under both issues. Petitioner abandoned the first issue
presented to the Tenth Court of Appeals and proceeded only on the second
issue in the Petition for Discretionary Review. This Honorable Court
granted Petitioner’s request on the single issue of “Whether the court of
appeals was correct in holding that the evidence was legally sufficient to
prove that Nowlin knew Degrate was charged with a felony offense.” The
only question raised by Petitioner is whether evidence of the aggravating
3 element, raising the level of offense from a Misdemeanor to a Felony, is
legally sufficient.
LAW
Elements of Hindering Apprehension A person is guilty of the offense of hindering apprehension or
prosecution if it is shown that "with intent to hinder the arrest, prosecution,
conviction, or punishment of another for an offense...or with intent to
hinder the arrest of another under the authority of a warrant or capias, he:
(1) harbors or conceals the other; (2) provides or aids in providing the other
with any means of avoiding arrest or effecting escape; or (3) warns the
other of impending discovery or apprehension." Tex. Penal Code Ann.
§ 38.05(a)(1) (West 2009). The offense of hindering apprehension is a class
A misdemeanor except an offense is a felony of the third degree if the
person who is harbored, concealed, provided with a means of avoiding
arrest or effecting escape, or warned of discovery or apprehension is under
arrest for, charged with, or convicted of a felony, including an offense
under Section 62.102, Code of Criminal Procedure, or is in custody or
4 detention for, is alleged in a petition to have engaged in, or has been
adjudicated as having engaged in delinquent conduct that violates a penal
law of the grade of felony, including an offense under Section 62.102, Code
of Criminal Procedure, and the person charged under this section knew
that the person they harbored, concealed, provided with a means of
avoiding arrest or effecting escape, or warned of discovery or
apprehension is under arrest for, charged with, or convicted of a felony, or
is in custody or detention for, is alleged in a petition to have engaged in, or
has been adjudicated as having engaged in delinquent conduct that
violates a penal law of the grade of felony. Id. § 38.05(d).
Legal Sufficiency Evidence is legally sufficient to support a conviction if, after assessing
all the evidence in the light most favorable to the verdict, any rational trier
of fact could find the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979). An appellate court reviews all of the evidence, whether it was
properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex.
5 Crim. App. 2007). Direct and circumstantial evidence are equally probative,
and circumstantial evidence alone can be sufficient to establish guilt. Id.;
Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995).
It is the factfinder's duty "to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts." Jackson, 443 U.S. at 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560. The
appellate court is to "determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict." Hooper v.
State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). When the record supports
conflicting inferences, the appellate court presumes that the factfinder
resolved the conflicts in favor of the prosecution and therefore defer to that
determination. Jackson, 443 U.S. at 326, 99 S. Ct. 2781, 61 L. Ed. 2d 560.
Direct and circumstantial evidence are treated equally:
"Circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper, 214 S.W.3d at 13. “It is the State's burden to prove
6 each element of the offense beyond a reasonable doubt, not to exclude
every conceivable alternative to a defendant's guilt.” Merritt v. State, 368
S.W.3d 516, 526 (Tex. Crim. App. 2012) (citing State v. Turro, 867 S.W.2d 43,
47 (Tex. Crim. App. 1993) (explaining that “the evidence is not rendered
insufficient simply because appellant presented a different version of the
events”)). In a circumstantial evidence case, it is not necessary that each
fact, by itself, directly and independently prove the guilt of the accused.
The cumulative force of all the incriminating circumstances may be
sufficient to warrant a conclusion of guilt. Beardsley v. State, 738 S.W.2d 681,
685 (Tex. Crim. App. 1987). Circumstantial evidence cases have no different
standard of review than those cases supported by direct evidence. Geesa v.
State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991).
Proof of a culpable mental state generally exists in circumstantial
evidence. Gardner v. State, 736 S.W.2d 179, 182 (Tex. App.—Dallas 1987),
aff'd, 780 S.W.2d 259 (Tex. Crim. App. 1989). Thus, proof of knowledge is
an inference drawn by the trier of fact from all the circumstances. Dillon v.
State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978); Trejo v. State, 766 S.W.2d
7 381, 385-86 (Tex. App.—Austin 1989). A jury can infer knowledge or intent
from the acts, conduct, and remarks of the accused and from the
surrounding circumstances. Menchaca v. State, 901 S.W.2d 640, 652 (Tex.
App.—El Paso 1995); Sharpe v. State, 881 S.W.2d 487, 490 (Tex. App.—El
Paso 1994).
ARGUMENT
The Tenth Court of Appeals did not err in holding that the evidence
was legally sufficient as to the aggravating factor that Nowlin knew
Degrate was charged, arrested for or convicted of a felony offense.
The U.S. Marshals were out to arrest Degrate for the offense of Felon
in Possession of a firearm. 4 RR 40. Petitioner “did not want her man to get
arrested.” 4 RR 52. Petitioner knew Degrate had been arrested, was on a
State bond, that he had a problem with his bond, and that he was supposed
to turn himself in. 4 RR 52-53. She was Degrate’s companion and had his
name tattooed on her chest. State’s Ex. 3. She knew something that caused
her to yell at Degrate to run as soon as she recognized the U.S. Marshals’
vehicles. 4 RR 27, 28, 52-53. Petitioner attempted to flee from the area but
8 was placed into custody herself. 4 RR 53. Additionally, she made efforts to
escape her detention by opening the door and running away while still
handcuffed. 4 RR 43. She admitted to warning Degrate that he was going to
be apprehended. 4 RR 52-53.
The Tenth Court of Appeals relied on the relevant circumstances
around the relationship between Nowlin and Degrate, the actions of
Nowlin on the date of the offense and the admissions by Nowlin to Deputy
Slavich in affirming the Trial Court’s decision to find Petitioner guilty of
felony hindering apprehension. Nowlin v. State, 2014 Tex. App. LEXIS 5309,
at 11 (Tex. App. Waco May 15 2014). Petitioner’s argument would have
This Court ignore basic common sense.
First, in order to find the evidence insufficient that Nowlin knew
Degrate was charged with a felony, This Court would have to ignore the
close intimate relationship between Nowlin and Degrate. The relationship
between the individuals is a circumstance that is intertwined with the
crime that Nowlin committed. The fact that she was in an intimate
relationship with Degrate is evidence that she has knowledge of important
9 or intimate details of Degrate’s life, including what crimes he has
committed and what he is wanted for. Nowlin warned Degrate because she
“didn’t want her man to get arrested.” 4 RR 52. This shows Nowlin’s
knowledge of Degrate’s criminal activity and his status as being wanted for
that criminal activity.
Second, This Court would have to ignore the fact that Nowlin knew
Degrate was wanted on an outstanding bond issue and needed to turn
himself in. The fact that she admitted to knowing about Degrate’s criminal
charges that were pending and that she knew Degrate was going to be
arrested is evidence that she was aware of his criminal conduct and was
aware that he was wanted. Being that Nowlin was aware of Degrate’s
criminal conduct; it was not unreasonable for the Trial Court to infer that
she knew why he was wanted. These two facts alone are sufficient evidence
for the Trial Court to reasonably infer that Nowlin knew of Degrate’s
criminal exploits and knew he was wanted on a felony charge.
In addition to the above facts, this court would also have to ignore
Nowlin’s actions at the scene of the offense. As soon as she recognized the
10 U.S. Marshal’s vehicles she warned Degrate and told him to run. 4 RR 52.
She then fled herself before being apprehended. 4 RR 41. Once
apprehended, she then fled the custody of Deputy Slavich while in
handcuffs. 4 RR 43. Nowlin’s actions at the scene provide additional
evidence for the Trial Court’s finding Petitioner guilty of a felony offense.
The actions taken by Nowlin are evidence of her knowledge of the serious
nature of the criminal conduct of Degrate. Opening herself up to criminal
charges is a large risk. The Trial Court was reasonable to conclude that
Nowlin took this risk because she knew the serious nature of the reason
Degrate was wanted.
Lastly, this court would have to ignore the admissions made by
Nowlin. Deputy Slavich testified that Nowlin stated, “she knew the
Marshal’s vehicles by sight” and stated that “she didn’t want her man to
get arrested.” 4 RR 52. The fact that Nowlin knew the Marshal’s vehicles by
sight shows that she was familiar with law enforcement and actively
learned what the vehicles from a specific law enforcement agency looked
like in order to protect her intimate partner, Degrate, from getting arrested.
11 The fact that she learned about The Marshals’ vehicles specifically is
another fact that the Trial Court relied on in finding that Nowlin knew
about Degrate’s criminal activity. The facts that she knew The Marshals
were there and that they were going to arrest Degrate shows her familiarity
with the charges and criminal activity of Degrate. There was no evidence
that Nowlin was wanted for any offense or on any warrant at the time of
the offense. The only evidence was that she knew the vehicles on sight and
she warned Degrate because “she didn’t want her man to get arrested.” It
stands to reason that, first, she knew he was wanted because she knew the
Marshals were there to arrest him and second, because of their relationship
she knew why he was wanted.
Petitioner also relies on the fact of the federal indictment as the only
evidence of Degrate being sought for a felony. Pet. Br. 3. Petitioner’s sole
reliance on the sealed indictment is misplaced. Petitioner fails to take into
consideration the additional evidence discussed above that the trial court
relied on in finding Petitioner guilty. Whether the indictment was sealed or
12 not does not affect Nowlin’s relationship with and knowledge of Degrate’s
criminal activity, her actions or her admissions to The Marshals.
Because the evidence was legally sufficient for a rational factfinder to
infer Petitioner’s knowledge of Degrate’s criminal offenses, the Tenth
Court of Appeal’s decision should be affirmed.
Relief
Petitioner’s requested relief is incorrect under the facts of this case. If
This Court finds that the evidence of Petitioner’s knowledge of Degrate
being charged, arrested for or convicted of a felony is insufficient, This
Court should reform the judgment to reflect a conviction for the lesser
included offense of misdemeanor hindering apprehension.
“After a court of appeals has found the evidence insufficient to
support an appellant's conviction for a greater-inclusive
offense, in deciding whether to reform the judgment to reflect a
conviction for a lesser-included offense, that court must answer
two questions: 1) in the course of convicting the appellant of the
greater offense, must the jury have necessarily found every
13 element necessary to convict the appellant for the lesser-
included offense; and 2) conducting an evidentiary sufficiency
analysis as though the appellant had been convicted of the
lesser-included offense at trial, is there sufficient evidence to
support a conviction for that offense? If the answer to either of
these questions is no, the court of appeals is not authorized to
reform the judgment. But if the answers to both are yes, the
court is authorized—indeed required—to avoid the "unjust"
result of an outright acquittal by reforming the judgment to
reflect a conviction for the lesser-included offense.”
Canida v. State, 434 S.W.3d 163, 166 (Tex. Crim. App. 2014) citing Thornton
v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014).
The underlying elements of hindering apprehension were found to
be sufficient by The Tenth Court of Appeals. Because only the aggravating
factor of whether Petitioner knew Degrate was charged, arrested for or
convicted of a felony is being challenged, all of the essential elements of
14 misdemeanor hindering apprehension have necessarily been found by the
factfinder.
15 Prayer
For the foregoing reasons, the State of Texas prays that this Honorable Court affirm the conviction and punishment of KEIONA DASHELLE NOWLIN and prays for such other and further relief as may
be provided by law.
Respectfully Submitted:
ABELINO ‘ABEL’ REYNA Criminal District Attorney McLennan County, Texas
/s/Gabriel C. Price_____________ GABRIEL C. PRICE Appellate Division 219 North 6th Street, Suite 200 Waco, Texas 76701 [Tel.] (254) 757-5084 [Fax] (254) 757-5021 [Email] gabe.price@co.mclennan.tx.us State Bar No. 24068071 Certificate of Compliance This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if
16 applicable, because it contains 2,721 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
Certificate of Service I certify that I caused to be served a true and correct copy of this State’s Brief by eservice or email on Petitioner’s attorney of record and the State Prosecuting Attorney.
DATE: 1/29/2015 /s/Gabriel C. Price________________
GABRIEL C. PRICE