Rhoades, Dustin Ryan

Opinion

PD-1350-15

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 11/30/2015 11:01:59 AM Accepted 12/1/2015 1:22:14 PM ABEL ACOSTA

PD-1350-15 CLERK

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

DUSTIN RYAN RHOADES

V.

THE STATE OF TEXAS

An Appeal from Cause No. 07-13-00319-CR in the Court of Appeals for the Seventh District of Texas at Amarillo and Cause No. 65,540-D in the 320TH Judicial District Court in and for Potter County, Texas, Honorable Don Emerson

PETITION FOR DISCRETIONARY REVIEW BY APPELLANT DUSTIN RYAN RHOADES

JAMES E. WOOLDRIDGE ATTORNEY & COUNSELOR AT LAW STATE BAR #24010492 600 S. Tyler Street LB 12051 Amarillo, Texas 79101

December 1, 2015 (806) 418 8575 (806) 418 8576 FAX j.e.wooldridge@att.net

ATTORNEY FOR APPELLANT

Appellant Requests Oral Argument

IDENTITY OF PARTIES AND COUNSEL

APPELLANT: DUSTIN RYAN RHOADES

APPELLEE: STATE OF TEXAS

TRIAL JUDGE: HONORABLE DON R. EMERSON 320TH JUDICIAL DISTRICT Potter County Courts Building 501 S. Fillmore Street Suite 4B Amarillo, Texas 79101

ATTORNEY FOR APPELLANT TRIAL & APPELLATE COUNSEL: JAMES E. WOOLDRIDGE ATTORNEY & COUNSELOR AT LAW 600 S. Tyler Street Suite 1704 LB 12051 Amarillo, Texas 79101

ATTORNEY FOR APPELLEE TRIAL COUNSEL: THOMAS MCMILLIAN ASSISTANT DISTRICT ATTORNEY 47TH Judicial District Attorney’s Office Potter County Courts Building 501 S. Fillmore Street Suite 5A Amarillo, Texas 79101

APPELLATE COUNSEL: JOHN L. OWEN ASSISTANT DISTRICT ATTORNEY 47TH Judicial District Attorney’s Office Potter County Courts Building 501 S. Fillmore Street Suite 5A Amarillo, Texas 79101

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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL i

TABLE OF CONTENTS ii

INDEX OF AUTHORITIES iv

PETITION FOR REVIEW 1

STATEMENT OF THE CASE 2

STATEMENT OF PROCEDURAL HISTORY 3

STATEMENT OF JURISDICTION 4

ISSUES PRESENTED 5

STATEMENT OF FACTS 6

SUMMARY OF THE ARGUMENT 11

ARGUMENT 13

ISSUE NUMBER ONE: 13

The Court of Appeals for the Seventh District of Texas erred by its disregard of precedent in favor of reversion to an overruled precedent, so as to deny Appellant standing to assert his right to Due Process or his right to be free from unreasonable seizure as a result of the commission of a crime by law enforcement officers seeking to ascertain his identity.

ISSUE NUMBER TWO: 16

The Court of Appeals for the Seventh District of Texas erred by its holding that an allegation of Murder based on Deadly Conduct committed while committing Deadly Conduct, or alternatively that Deadly Conduct standing alone, or alternatively that Deadly Conduct without a specified further dangerous act, is sufficient to deny quashment of an indictment paragraph so alleging.

ISSUE NUMBER THREE: 20

The Court of Appeals for the Seventh District of Texas erred by its holding that any voluntary act shall suffice to imply voluntariness to

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the ultimate act alleged, such that an instruction on voluntariness shall not lie, no matter that evidence was adduced as to the involuntariness of shooting an individual from multiple sources of testimony.

ISSUE NUMBER FOUR: 23

The Court of Appeals for the Seventh District of Texas erred by its holding that the evidence in this matter was sufficient to sustain a conviction for Murder.

PRAYER 26

CERTIFICATE OF SERVICE 27

CERTIFICATE OF COMPLIANCE 27

APPENDIX A 28

Opinion delivered by the Court of Appeals for the Seventh District 29 of Texas

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INDEX OF AUTHORITIES

CASES Adanandus v. State, 866 S.W.2d 210 (Tex.Crim.App.1993) 20,21,24

Alford v. State, 866 S.W.2d 619 (Tex.Crim.App.1993) 20,21,24

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 23

Brown v. State, 605 S.W.2d 572 (Tex.Crim.App. 1980) 14

Brown v. State, 955 S.W.2d 276, 280 (Tex.Crim.App.1997) 20

Chavez v. State, 9 S.W.3d 817 (Tex.Crim.App. 2000) 14

Farmer v. State, 411 S.W.3d 901 (Tex.Crim.App 2013) 22

Fuller v. State, 829 S.W.2d 191 (Tex.Crim.App 1992) 14

Garrett v. State, 573 S.W.2d 543 (Tex.Crim.App.1978) 17

Hartsfield v. State, 305 S.W.3d 859 (Tex.App.-Texarkana 2010, pet. ref'd) 23

Heiselbetz v. State, 906 S.W.2d 500 (Tex. Crim. App. 1995) 23

Jackson v. Virginia, 443 U.S. 307 (1979) 23

Johnson v. State, 673 S.W.2d 190 (Tex.Crim.App.1984) 23,25

Lawson v. State, 64 S.W.3d 396 (Tex.Crim.App.2001) 17

Payne v. State, 33 S.W.3d 374 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d) 21

Rogers v. State, 105 S.W.3d 630 (Tex.Crim.App.2003) 20,24

Shaw v. State, 243 S.W.3d 647 (Tex.Crim.App.2007) 21

State v. Aguirre, 5 S.W.3d 911 (Tex.App.-Houston [14th Dist.] 1999, no pet.) 14

Trujillo v. State, 227 S.W.3d 164 (Tex.App.-Houston [1st Dist.] 2006, pet. ref’d) 20,24

Washington v. State, 417 S.W.3d 713 (Tex.Crim.App.2010) 18

Wilson v. State, 311 S.W.3d 452 (Tex.Crim.App.2010) 13,14

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Woodfox v. State, 742 S.W.2d 408 (Tex.Crim.App.1987) 21

STATUTES

TEX.CODE CRIM. PROC. ANN. art. 37.09 17

TEX.CODE CRIM. PROC. ANN. art. 38.23(a) 13

TEX. PENAL CODE ANN. § 2.03(c) 20

TEX. PENAL CODE ANN. § 2.03(d) 20

TEX. PENAL CODE ANN. § 2.03(e) 20

TEX. PENAL CODE ANN. § 6.01(a) 23

TEX. PENAL CODE ANN. § 6.02(a) 23

TEX. PENAL CODE ANN. § 6.03(a) 23

TEX. PENAL CODE ANN. § 6.03(b) 16,23

TEX. PENAL CODE ANN. § 6.03(c) 17

TEX. PEN. CODE ANN. § 12.32 2

TEX. PEN. CODE ANN. § 12.42 2

TEX. PENAL CODE ANN. § 19.02(b)(1) 2,23

TEX. PENAL CODE ANN. § 19.02(b)(3) 2,16

TEX. PENAL CODE ANN. § 19.04(a) 17

TEX. PENAL CODE ANN. § 22.05(a) 17

TEX. PENAL CODE ANN. § 22.05(c) 18

TEX. PENAL CODE ANN. §43.02(a)(1) 13

TEX. PENAL CODE ANN. §43.02(b) 13

TEX. PENAL CODE ANN. §43.02(d) 13

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PD-1350-15

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

DUSTIN RYAN RHOADES

V.

THE STATE OF TEXAS

An Appeal from Cause No. 07-13-00319-CR in the Court of Appeals for the Seventh District of Texas at Amarillo and Cause No. 65,540-D in the 320TH Judicial District Court in and for Potter County, Texas, Honorable Don Emerson

PETITION FOR DISCRETIONARY REVIEW BY APPELLANT DUSTIN RYAN RHOADES

TO THE COURT OF CRIMINAL APPEALS OF TEXAS, AND TO THE HONORABLE JUSTICES OF SAID COURT:

COMES NOW Appellant,Dustin Ryan Rhoades, and files this, his Petition for Discretionary Review, and requests that the Court of Criminal Appeals of Texas take the matters presented herein under review, and after deliberation reverse the judgment of the Court of Appeals for the Seventh District of Texas at Amarillo, and refer this cause back to the trial court in all things.

Appellant believes that oral argument would assist this Court in explication and disposition of the issues presented in this petition. Therefore, Appellant requests oral argument.

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STATEMENT OF THE CASE

This is a Petition For Discretionary Review from a criminal appeal styled: Dustin Ryan Rhoades v. State of Texas, Cause Number 07-13-00319-CR in the Court of Appeals, Seventh District of Texas, which was itself a direct appeal of a criminal matter styled: State of Texas v. Dustin Ryan Rhoades, Cause Number 65,540-D, in the District Court of Potter County, Texas, 320TH Judicial District, the Honorable Don R. Emerson, presiding.

A pre-trial hearing on Defendant’s Motion To Quash And Exception To The Substance Of The Indictment was held on the 3RD day of September, 2013. The Court denied said Motion To Suppress on the day of hearing and proceeded immediately to trial. A trial by jury was held on the 3RD and 4TH days of September, 2013, whereupon Appellant was found guilty of the First Degree Felony offense of Murder. TEX. PENAL CODE ANN. 19.02(b)(1); TEX PENAL CODE ANN. 19.02(b)(3). The jury then assessed Appellant’s punishment at confinement for forty (40) years in the Texas Department of Criminal Justice, Institutional Division, on the 4TH day of September, 2012. TEX. PENAL CODE ANN. 12.32; TEX. PENAL CODE ANN. 12.42 (Vernon 2010).

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STATEMENT OF PROCEDURAL HISTORY

The Court of Appeals for the Seventh Supreme Judicial District of Texas sitting at Amarillo affirmed the trial proceedings on the 15TH day of September, 2015, in a Memorandum Opinion from Chief Justice Brian Quinn and Justices James T. Campbell and Patrick Pirtle, authored by Justice James T. Campbell. No motion for rehearing was filed by the Appellant with the Court of Appeals.

The Court of Criminal Appeals granted an extension to the filing of a Petition for Discretionary Review until the 16TH day of November, 2015. Appellant’s Petition for Discretionary Review was originally submitted on the 16TH day of November, 2015 but was rejected on the 17TH day of November, 2015 for excessive length and a corrected petition ordered to be filed within 10 days.

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STATEMENT OF JURISDICTION

Jurisdiction resides with this Court in that a state appellate court, to wit, the Seventh Court of Appeals, has decided an important question in a way that holds differently from a prior decision of another court of appeals or of the Court of Criminal Appeals on a question of law material to a decision of the case, and in which it appears that an error of law has been committed by the Seventh Court of Appeals, and that error is of such importance to the jurisprudence of the State of Texas that it requires correction.

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ISSUES PRESENTED

ISSUE NUMBER ONE Are an appellant’s rights to Due Process and to be free from an unreasonable seizure violated by a court of appeals deliberate disregard of precedent of the Court of Criminal Appeals in favor of reversion to an earlier precedent overruled by the later precedent, such that law enforcement officers may be permitted with impunity to commit crimes in order to ascertain the identity of a suspect and then utilize information gained therefrom to secure a warrant for arrest and deny liberty thereby?

ISSUE NUMBER TWO Can an allegation that the commission of Deadly Conduct while in the course of committing Deadly Conduct raise an act beyond Manslaughter, to Murder, or alternatively, that Deadly Conduct standing alone, or alternatively, that an allegation of Deadly Conduct, without specification of a further act clearly dangerous to human life, is sufficient to maintain a charge of Murder?

ISSUE NUMBER THREE May a single preliminary voluntary act that does not comprise the ultimate act criminalized, conflate into the culpable mental state and the ultimate criminalized act, such that an instruction on voluntariness should not be given even though the issue of voluntariness is raised by multiple accounts?

ISSUE NUMBER FOUR May a finder of fact infer absent evidence concerning mental culpability when all evidence adduced at trial is to the contrary?

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STATEMENT OF FACTS

On June 7TH, 2012, police responded to a report of a shooting at the Westminster Apartments in Amarillo, Texas, whereupon they discovered one Deans Anderson lying on the floor of his apartment with a fatal gunshot wound to the face.

Sergeant Jason Riddlespurger, a detective with the Amarillo Police Department Special Crimes Unit testified that he was assigned as the lead investigator on this suspected homicide. R.R. 3:44-45. From information taken from the decedent’s phone, Sergeant Riddlespurger identified a “Chocolate Cherry” as a person running an escorttype service that had been in contact with decedent shortly before decedent’s demise. R.R. 3:46-47. In order to determine the identity of “Chocolate Cherry,” an undercover operation was initiated that involved an undercover narcotics officer contacting “Chocolate Cherry” and setting up a pretend date, whereupon actually meeting, the subject was to be pulled aside and identified. The operation identified “Chocolate Cherry” as being in reality, Cree-Anna Shamell Dawn. R.R. 3:47-48. The operation, a prostitution sting, was under the planning of Lieutenant Bohannon, head of Special Crimes, in coordination with Lieutenant Leidtke, commander of the Narcotics Task Force. Pursuant thereto, Officer Morgan of the Task Force set up a date and met with Ms. Dawn. R.R. 3:49-50. The “sting” occurred at a now-defunct Amarillo restaurant called TGIF (Thank God It’s Friday) on June 11TH, 2012. R.R. 3:83. As part of the sting, Officer Morgan and a Sergeant Clay were to make a recording of the interaction with Ms. Dawn, with Sergeant Clay listening to determine when an offer and acceptance for sex had been made. R.R. 3:50. Sergeant Riddlespurger testified that his operational partner Clay Rolan was informed by Sergeant Clay that an offer of sex for money had been made and Ms. Dawn was then arrested without warrant. R.R. 3:50-51. The offer for sex for money was made by Cree-Anna Dawn and Officer Morgan. R.R. 3:51. Sergeant Riddlespurger testified that he had personally reviewed the audiotape of the offer and acceptance for sex and confirmed that it involved Officer Morgan making an offer to the effect of taking Ms. Dawn up to his room for three hours to fulfill the agreement. R.R. 3:51. Sergeant Riddlespurger futher confirmed that all identification of Ms. Dawn and Dustin Rhoades came from her arrest without warrant on the

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prostitution charge, that prior to the Dawn post-arrest interview, the Amarillo Police Department and Special Crimes did not know who Dustin Rhoades was in relation to the case (unidentified white male), and that all identification to lead to the arrest of Dustin Rhoades on a murder warrant was the product of Cree-Anna Dawn’s prostitution arrest. R.R. 3:52.

Subsequent to Appellant’s arrest on the murder warrant secured via the warrantless prostitution arrest of Cree-Anna Dawn, Sergeant Riddlespurger testified he was able to extract a confession, both oral and written, from Appellant, the written statement being entered at trial as State’s Exhibit 133 and reading as follows:

“My name is Dustin Ryan Rhoades. My birthday is 1/30/85 and I am 27 years old. I have been living with my grandmother, Lucille Stone, at 41" -- I’m sorry -- “400 S.W. 15th, #214, Amarillo, Texas. I have a girlfriend named Kristie Ortiz. On Thursday, June 7, 2012, I got a phone call from a girl named Cree. I have known Cree for about a month and I met her at a friend named Chris’s house. Cree told me that a guy attempted to rape her and he took her money. She asked me to come pick her up and take her to try and get her money from the guy. I was driving Kristie’s maroon Chrysler or Dodge Grand Caravan minivan. I drove to Chris’s house at 16th and S. Jackson. Cree was outside waiting and she got in the van with me. I drove us to the apartments at Coulter and I-40. Cree told me where to go and I parked the van next to the street. We left both sliding doors open. I followed Cree to an apartment. I was carrying a .357 black revolver in my hand when we walked up to the apartment. Cree knocked on the door while I stood to the side. The man inside opened the door. He told Cree,” in quotations, “‘Did you bring a condom this time so I can do that shit again?’” End quotation. “I stepped up to the door with my gun pointed at the man. I told the man to give my girl the money and to empty his pockets. He said,” quote, “‘I ain’t got no pockets.’” End quote. “I told the man I was trying to be nice. He said to tell the girl to come in so he could get his money’s worth. He then said,” quote, “‘Kill me, kill me,’” -- end quote. Again, quotations, “‘because I would do it again.’” End quotation. “He kept saying,” quote, “‘Kill me,’” -- end quote, “and then stepped towards me. I twisted and pulled the trigger. I didn’t mean to. The shot hit the man in the face. He was in slow motion and

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fell to the ground. I was sorry and wanted so bad to help him. Cree had to come to me and pulled me away saying,” quote, “‘Come on.’” End quote. “We both ran to the van. She got in the passenger side and I got in the driver’s seat. I drove the van north on Coulter and then east onto I-40. I took Cree back to Chris’s house and let her out. I drove around for several hours and eventually went to my grandma’s house. The next day or two I told Kristie what happened. A couple of days ago, I was at a corner in North Amarillo. It was an area with crack dealing and prostitution. I pulled the car up to a black African dude and sold him my .357 revolver for $75. I do not know who the guy was. I had only owned the gun a couple of days before the shooting. I had bought it from an unknown guy for $150. I bought it for self protection. I wish I could take the man’s place. I swear that the above statement is true and correct to the best of my knowledge.” R.R. 3:62-64.

Sergeant Riddlespurger testified that, as to Appellant’s oral statement, Appellant had stated that the decedent “reached toward Appellant” just before Appellant’s weapon discharged. R.R. 3:93-94. Kristie Ortiz, Appellant’s girlfriend, testified in response to questioning as to what Appellant had told her about June 8th of 2012, the night in question, (T)hat he took Cree-Anna to the victim’s house, apartment, to go get some money, and that they started arguing and that he pulled the gun out trying to scare him, and that she pulled his arm away to quit, and then the gun went off. R.R. 4:51-52.

State’s witness Nathan Shaw testified that he was living, and present, at the Westminster Apartments, with an address of 2415 S. Coulter on June 7TH, 2012. R.R. 3:12. Specifically, Mr. Shaw resided in Apartment 224. R.R. 3:13. On the evening in question, Mr. Shaw stated he heard a gunshot from inside his apartment, then saw Appellant running behind a black female toward a red van, holding a small black pistol. R.R. 3:14. Later, Mr. Shaw altered his testimony to say he first saw Appellant standing in a doorway. R.R. 3:15, 23-24. Still later, he altered his testimony again to say that he did not see Appellant and the black female in the doorway, but maybe three or four feet

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outside the doorway. R.R. 3:25. Mr. Shaw was quite clear in his testimony that he did not see what transpired at the doorway where he saw Appellant, and that he did not see Appellant and the black female approach the decedent’s doorway. R.R. 3:24.

Sergeant Riddlespurger testified that Special Crimes was unable to retrieve any video that showed any interaction between Appellant, Ms. Dawn, and the decedent. R.R. 3:75. Further, Special Crimes located only two persons, Nathan Shaw and someone named LaVigne, who witnessed portions of the event, but neither witnessed the interaction between the two and the actual shooting. R.R. 3:76. No person named LaVigne testified at Appellant’s trial. R.R. 1:7.

Juan Cerda was identified as being the third person in the van used by Appellant and Ms. Dawn to travel to the site of the incident. R.R. 3:82. Juan Cerda did not see the shooting. R.R. 3:83. Cree-Anna Dawn also did not see the final interaction between Appellant and the decedent, as evidenced by the following testimony given by Sergeant Riddlespurger relative to her interrogations:

(By Mr. Wooldridge) Q. Cree-Anna Dawn said that she was running away and heard the shooting as she left Dustin standing with the gun at the door. Q. So she just assumed that Dustin had shot him? A. Yes. Q. In fact, you were never able to identify anyone other than Dustin Rhoades that was witness to the actual shooting and the immediate events prior to that shooting; is that correct? A. Correct. R.R. 3:97. Q. And she says that she was as far away as perhaps the next apartment door before she heard the shot? A. Correct. Q. And she does say that Deans Anderson was getting argumentative and in -- or in a way that is consistent with Mr. Rhoades’ statement?

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A. Yes. Q. But in any statement that she’s given, she -- she never states that she sees the actual shooting? A. Correct. Q. She always makes clear that she has left, she says, before the actual event can happen? A. That’s correct. Q. And neither she nor anyone else has provided any testimony, other than Dustin Rhoades, as to Deans Anderson’s last moves? A. Correct. Q. And Mr. Cerda was unclear as to where he was, but he finally decided he was in the van when he heard the shot? A. Yes, sir. R.R. 3:99-100.

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SUMMARY OF THE ARGUMENT

ISSUE NUMBER ONE In a prosecution for Murder, police sought an escort identified from the decedent’s phone. In order to be able to arrest her, the police committed the crime prostitution, i.e., made an offer of sex in return for money, which the escort (ultimately, co-defendant) accepted and thereupon was promptly arrested. The escort was then interrogated and implicated Appellant. All information leading to the identity of Appellant was garnered from the illegal arrest of the co-defendant, as was the warrant for Appellant’s arrest. Subsequent to Appellant’s arrest, he gave the only information presented to the jury concerning his involvement in the alleged offense. Per Article 38.23, all evidence should have been suppressed identifying Appellant as the perpetrator of the offense, and his confessions.

ISSUE NUMBER TWO Murder may be predicated upon the commission of an act, in furtherance of a separate felony, that is clearly dangerous to human life and results in the death of another person, but not if it is Manslaughter or a lesser included thereof. Paragraph Two of the Indictment in this case either alleged that felony Deadly Conduct (discharging a firearm) was committed while committing misdemeanor Deadly Conduct (pointing a firearm - presumed reckless), or that misdemeanor Deadly Conduct was committed and some unspecified dangerous act was committed in furtherance thereof, or that in the course of committing felony Deadly Conduct (discharging), committed an antecedent misdemeanor Deadly Conduct (pointing), such that either the allegation was an attempt to bootstrap Manslaughter into Murder or was just so completely illogical as to require quashment.

ISSUE NUMBER THREE The Seventh Court of Appeals erred in holding that a preparatory voluntary act suffices to impute voluntariness to the ultimate act in an allegation that does not allow strict

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liability, but requires mental culpability and deprived Appellant of an instruction at trial as to voluntariness.

ISSUE NUMBER FOUR On a Murder charge, the only testimony adduced at trial as to Appellant’s mental culpability was that Appellant either flinched, causing the discharge of the firearm that led to death, or that his arm was either bumped or grabbed by the co-defendant, causing the discharge. As there was no other testimony as to Appellant’s mental state, much less anything contradictory, the evidence should have been insufficient to support guilt beyond all reasonable doubt.

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ARGUMENT

ISSUE NUMBER ONE: The Court of Appeals for the Seventh District of Texas erred by its disregard of precedent in favor of reversion to an overruled precedent, so as to deny Appellant standing to assert his right to Due Process or his right to be free from unreasonable seizure as a result of the commission of a crime by law enforcement officers seeking to ascertain his identity.

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained. TEX.CODE CRIM. PROC. ANN. art. 38.23(a).

There are thirty exceptions under Texas law that allow law enforcement agents to engage in conduct otherwise criminalized. The Prostitution statute itself does set out an exception to the conduct it criminalizes. TEX. PENAL CODE ANN. §43.02(a)(1); TEX. PENAL CODE ANN. §43.02(b); TEX. PENAL CODE ANN. §43.02(d). The Texas Legislature could, should it so decide, exempt police officers from liability for the offense of prostitution, but it has not yet done so. Sometimes "it takes a thief to catch a thief," but the decision to exempt police officers from certain penal laws rests with the Legislature, not the courts. Wilson v. State, 311 S.W.3d 452, 463 (Tex.Crim.App.2010). Thus there is NO exception authorizing the police conduct as occurred in the instant matter.

This Court of Criminal Appeals explained in Wilson that the purpose of Article 38.23 is "to protect a suspect's privacy, property, and liberty rights against overzealous law enforcement . . . [and] to deter unlawful actions which violate the rights of criminal suspects in the acquisition of evidence for prosecution." Wilson, at 458-59. This is exactly the type of law violation that the Texas Legislature intended to prohibit when it

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enacted article 38.23—conduct by overzealous police officers who, despite their laudable motives, break the penal laws directly related to gathering and using evidence in their investigations. Id. A police officer's violation of statute to obtain a confession or other evidence is at the core of conduct proscribed by the Texas exclusionary statute. Id.

As admitted by Sergeant Riddlespurger at Appellant’s trial, Officer Morgan made the illegal offer of money for sex. Officer Morgan had no authority at law to establish such situation whereby Appellant’s co-defendant was ultimately entrapped and arrested. As further admitted by Sergeant Riddlespurger, all evidence of the identification of Cree-Anna Dawn and Appellant Dustin Rhoades came from Cree-Anna Dawn’s arrest without warrant on the prostitution charge, and that prior to the Dawn post-arrest interview, the Amarillo Police Department and Special Crimes did not know who Dustin Ryan Rhoades was in relation to the case (unidentified white male), and that all identification leading to the arrest of Appellant on a murder warrant was the product of Cree-Anna Dawn’s prostitution arrest. R.R. 3:52. See Brown v. State, 605 S.W. 2d 572, 577 (Tex.Crim.App. 1980) ("A search warrant may not be procured lawfully by the use of illegally obtained information."); see also State v. Aguirre, 5 S.W.3d 911, 913-14 (Tex.App.-Houston [14th Dist.] 1999, no pet.) ("[I]f the evidence supporting the warrant was improperly obtained, the evidence obtained from executing the warrant was the fruit of an illegal search and was properly suppressed."). The poisoned tree of course produced the poisonous fruit, including Appellant’s confessions, both oral and written, all of which, per Wilson, should have been excluded from evidence, with a resultant complete absence of evidence against Appellant.

The Seventh Court of Appeals, however, has reverted to the now inapposite earlier holdings of Fuller, principally, and Chavez to justify denial of standing to Appellant. See Court of Appeals Opinion at 9-13; Fuller v. State, 829 S.W.2d 191 (Tex.Crim.App 1992); Chavez v. State, 9 S.W.3d 817 (Tex.Crim.App. 2000). This, in spite of the fact that Wilson was acknowledged by Justice Hervey’s Dissenting Opinion in Wilson to have sub silentio overruled Fuller and Chavez to the extent that those Opinions denied standing to complain of a violation of a right of third parties. Wilson, 311 S.W.3d at 470.

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In Wilson, the issue was an officer’s fabrication of a document, purported to be an official government document, to convince a suspect to confess. Here, the officers’ conspired to commit prostitution, and in fact committed prostitution. In both cases there were no victims whose rights had been violated, and thus, per the Seventh Court’s opinion, there could never be anyone with standing to complain about crimes committed by law enforcement. Worse, were we to follow the Seventh Court’s adoption and attempted perpetuation of the abandoned Fuller/Chavez line, it would be perfectly legal for the police to commit theft of information or property in someone else’s possession, or even commit Aggravated Kidnapping and Aggravated Assault By A Public Servant (as in torturing information out of people) and use the fruits thereof with complete impunity. That the issue here was a lesser degree of severity of the crime changes nothing, as the difference is only one of degree, not type. Such absurdities , per Wilson, obviously cannot exist in any rational and fair system of law The Seventh Court of Appeals was bound to follow the precedent of this Court, and erred in reversion to the law of its choice.

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ISSUE NUMBER TWO: The Court of Appeals for the Seventh District of Texas erred by its holding that an allegation of Murder based on Deadly Conduct committed while committing Deadly Conduct, or alternatively that Deadly Conduct standing alone, or alternatively that Deadly Conduct without a specified further dangerous act, is sufficient to deny quashment of an indictment paragraph so alleging.

THE OFFENDING PARAGRAPH II . . . the defendant, on or about the 7th day of June, 2012 did then and there intentionally or knowingly commit or attempt to commit an act clearly dangerous to human life, to-wit: pointing a firearm at or in the direction of Deans Anderson, that caused the death of Deans Anderson, and the Defendant was then and there in the course of intentionally or knowingly committing a felony, to-wit: Deadly Conduct, and said death of Deans Anderson was caused while the Defendant was in the course of and in furtherance of the commission or attempt of said felony.

A person commits an offense if he commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(3). A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. TEX. PENAL CODE ANN. § 6.03(b). A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary

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person would exercise under all the circumstances as viewed from the actor's standpoint. TEX. PENAL CODE ANN. § 6.03(c).

A conviction for felony murder under Section 19.02(b)(3), will not lie when the underlying felony is manslaughter or a lesser included offense of manslaughter. Lawson v. State, 64 S.W.3d 396, 397 (Tex.Crim.App.2001). This holding is consistent with the plain meaning of the felony murder provision. As explained in Garrett:

If a felony murder may be predicated on the underlying aggravated assault, the statutory restriction on the scope of the doctrine that prohibits basing a felony murder prosecution on voluntary manslaughter could be regularly circumvented. The legislative prohibition against resting a Sec. 19.02(a)(3) [now, 19.02(b)(3)] prosecution on voluntary manslaughter necessarily includes a prohibition against resting such a prosecution on offenses statutorily includable in voluntary manslaughter.

Id., (citing Garrett v. State, 573 S.W.2d 543, 546 (Tex.Crim.App.1978)).

Manslaughter lies in that a person commits an offense if he recklessly causes the death of an individual. TEX. PENAL CODE ANN. § 19.04(a). An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. TEX.CODE CRIM. PROC. ANN. art. 37.09.

Deadly Conduct, as entertained in the present case and offending paragraph of the indictment, lies in that a person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury. TEX. PENAL

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CODE ANN. § 22.05(a). Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded. TEX. PENAL CODE ANN. § 22.05(c).

Of first note is that the charge alleges pointing a firearm at an individual as an instance of Deadly Conduct, and then seems to say that another unspecified act of Deadly Conduct was committed. Inasmuch as the offending paragraph alleges an act of Deadly Conduct that by statutory definition is presumed to be reckless, it differs from the offense of Manslaughter only in that 1), it is established by proof of the same or less than all the facts required to establish the commission of the offense charged, and 2), it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission - meaning that it is a lesser included of Manslaughter and cannot be charged as Murder. As the State did nothing to defeat the presumption of recklessness, the prosecution of Appellant on this allegation is a flagrant violation of Penal Code Section 19.02(b)(3) and Lawson.

Alternatively, if the allegation is that while committing the misdemeanor Deadly Conduct, Appellant further committed felony Deadly Conduct, the allegation still fails statutorily. As the dangerous act must have been committed in the course of a felony, which would be discharging in the direction of a person, that act was never specified. And if the misdemeanor Deadly Conduct (pointing) is supposed to be the basis for the act committed in the course of felony Deadly Conduct (discharging) then the allegation not only fails statutorily but abjectly fails as a proposition of reason. “Discharging in the direction of,” necessarily causally follows “pointing in the direction of.”

Finally, the Seventh Court of Appeals reliance on Washington (correctly cited as 417 S.W.3d 713, 721) is misplaced, as those case do not involve firearm discharge at persons, or otherwise commit the same logical fallacy. The Murder statute requires that, while in the course of committing a felony, yet another act must be committed in furtherance of the underlying felony. If the allegation is that the unspecified “dangerous act” in furtherance of the commission of the underlying felony is the discharge of the firearm, then the allegation must fail even more spectacularly.

19

Consider, in the course of discharging a firearm at a person, Appellant discharged a firearm at a person. This is the logical fallacy of Circularity. Though the Seventh Court of Appeals asserts Appellant is confused, the dictates of reason demonstrate that it is the Seventh Court of Appeals and the State that are confused concerning basic rules of logic and reasoning.

Further, as the State was clear in informing Appellant’s jury that it could convict on either paragraph of the indictment, there can be no assurance that Appellant was not convicted on a Manslaughter/lesser-included-charge disguised as a Murder charge, to his detriment and harm, and thus there can be no determination beyond a reasonable doubt that the error did not contribute to the conviction or punishment.

20

ISSUE NUMBER THREE: The Court of Appeals for the Seventh District of Texas erred by its holding that any voluntary act shall suffice to imply voluntariness to the ultimate act alleged, such that an instruction on voluntariness shall not lie, no matter that evidence was adduced as to the involuntariness of shooting an individual from multiple sources of testimony.

Section 6.01(a) of the Texas Penal Code states that a person commits an offense only if he engages in voluntary conduct, including an act, an omission, or possession. Alford v. State, 866 S.W.2d 619, 621 (Tex.Crim.App.1993). “Voluntariness,” within the meaning of §6.01(a), refers only to one’s own physical body movements. Id; Trujillo v. State, 227 S.W.3d 164, 169 (Tex.App.-Houston [1st Dist.] 2006, pet. ref’d). The issue of the voluntariness of one’s conduct, or bodily movements, is separate from the issue of one’s mental state. Adanandus v. State, 866 S.W.2d 210, 230 (Tex.Crim.App.1993). When a person claims the involuntary-act defense he is conceding that his own body made the motion but denies responsibility for it. Rogers v. State, 105 S.W.3d 630, 639 n. 30 (Tex.Crim.App.2003). If those physical movements are the non-volitional result of someone else's act, are set in motion by some independent non-human force, are caused by a physical reflex or convulsion, or are the product of unconsciousness, hypnosis or other non-volitional impetus, that movement is not voluntary. Id. While the defense of an accident is no longer present in the Penal Code, the courts have long held that homicide that is not the result of voluntary conduct is not to be criminally punished. Brown v. State, 955 S.W.2d 276, 280 (Tex.Crim.App. 1997).

The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense. TEX. PENAL CODE ANN. § 2.03(c). If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted. TEX. PENAL CODE ANN. § 2.03(d). A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense. TEX. PENAL CODE ANN. § 2.03(e).

21

Because ‘voluntarily’ means the absence of accidental act, omission or possession, it is not a fact that the State must prove in every case. [T]he State need not prove voluntariness unless the evidence raised the issue of accident, in which case the State must disprove the theory of accident beyond a reasonable doubt. Alford v. State, 866 S.W.2d at 624 n. 8. If the issue is raised by the evidence, a jury may be charged that a defendant should be acquitted if there is a reasonable doubt as to whether he voluntarily engaged in the conduct of which he is accused. Adanandus, 866 S.W.2d at 230.

Under § 2.03(c), a defense is supported (or raised) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true. If a defense is supported by the evidence, then the defendant is entitled to an instruction on that defense, even if the evidence supporting the defense is weak or contradicted, and even if the trial court is of the opinion that the evidence is not credible. Shaw v. State, 243 S.W.3d 647, 657-58 (Tex.Crim.App.2007). The weight of the evidence in support of an instruction is immaterial. Woodfox v. State, 742 S.W.2d 408, 409-10 (Tex.Crim.App.1987) When the voluntariness of a defendant’s actions in firing a gun is the defendant’s primary defense, he is entitled to have the jury rule upon that defense and is harmed in not having the requested instruction submitted to the jury.” Payne v. State, 33 S.W.3d 374, 376 (Tex.App.-Houston [1st Dist.] 2000, pet. ref’d).

As the issue of whether the discharge of the firearm resulting in the decedent’s death was clearly raised by Appellant’s oral and written statements, as relayed by Sergeant Riddlespurger’s testimony, and by the testimony of Kristie Ortiz, Appellant was entitled to have his requested charge submitted to his jury. The failure of the trial court to so allow, prevented Appellant’s jury from considering such evidence and as a consequence, per Payne, was harmed.

The Seventh Court of Appeals relies primarily upon Farmer v. State for the proposition that any voluntary preparatory act renders the ultimate act voluntary, such that an instruction per Article is precluded. Court of Appeals Opinion at 13-16. Yet the reliance is misplaced, at best. As distinguished from the present set of facts, Farmer involved a single act, ingestion of a drug, as it relates to an issue in strict liability, for

22

which there is no culpable mental state. The act in question here requires a culpable mental state, intention or knowledge, in causing the death of an individual through the discharge of a firearm. Thus, preparatory acts are irrelevant to the ultimate issue of the mental culpability in the discharge of the firearm.

However, the most condemnable aspect of the Seventh Court of Appeals reliance on Farmer lies in the Seventh Court of Appeals disregard of the implication expressly contained in Farmer’s conclusion. “Moreover, because no other evidence at trial raised an issue of Appellant's voluntariness in taking that medication, the trial court properly denied Appellant's request.” Farmer v. State, 411 SW 3d 901, 908 (Tex.Crim.App. 2013). In Appellant’s case, there was ample other evidence from Appellant that he suffered an involuntary reflex as the decedent stepped toward him and he flinched as he turned away, and from Appellant’s girlfriend, Kristie Ortiz, who testified he had told her that the gun had gone off when the co-defendant had either bumped or grabbed his arm. Appellant was entitled to have his requested charge submitted to his jury, and the Seventh Court of Appeals erred in failing to so acknowledge.

23

ISSUE NUMBER FOUR: The Court of Appeals for the Seventh District of Texas erred by its holding that the evidence in this matter was sufficient to sustain a conviction for Murder.

A person commits an offense if he intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1). A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession. TEX. PENAL CODE ANN. § 6.01(a). Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires. TEX. PENAL CODE ANN. § 6.02(a). A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. TEX. PENAL CODE ANN. § 6.03(a). A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. TEX. PENAL CODE ANN. § 6.03(b).

A review of the legal sufficiency of evidence entails a review of all the evidence in the light most favorable to the jury's verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.App.-Texarkana 2010, pet. ref'd).

Because the jury is the sole judge of the weight and credibility of the witnesses'

testimony, it may accept or reject any or all testimony of any witness. See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). A jury can disregard testimony if it chooses to; it cannot, however, use that testimony to reach the opposite conclusion. Johnson v. State, 673 S.W.2d 190, 196 (Tex.Crim.App.1984). The jury's right to disbelieve a witness does not constitute evidence to the contrary. Id.

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Section 6.01(a) of the Texas Penal Code states that a person commits an offense only if he engages in voluntary conduct, including an act, an omission, or possession. Alford v. State, 866 S.W.2d 619 (Tex.Crim.App.1993). “Voluntariness,” within the meaning of §6.01(a), refers only to one’s own physical body movements. Id; Trujillo v. State, 227 S.W.3d 164, 169 (Tex.App.-Houston [1st Dist.] 2006, pet. ref’d). The issue of the voluntariness of one’s conduct, or bodily movements, is separate from the issue of one’s mental state. Adanandus v. State, 866 S.W.2d 210, 230 (Tex.Crim.App.1993). When a person claims the involuntary-act defense he is conceding that his own body made the motion but denies responsibility for it. Rogers v. State, 105 S.W.3d 630, 639 n. 30 (Tex.Crim.App.2003). If those physical movements are the non-volitional result of someone else's act, are set in motion by some independent non-human force, are caused by a physical reflex or convulsion, or are the product of unconsciousness, hypnosis or other non-volitional impetus, that movement is not voluntary. Id.

Per the testimony adduced at trial and Sergeant Riddlespurger’s summation, there was no evidence of what ultimately transpired leading to Deans Anderson’s death beyond Appellant’s recitation. Nathan Shaw did not see what happened, only the aftermath. LaVigne did not testify and no statement from such person was ever produced. Co-defendant Cree-Anna Dawn, by all of her accounts, did not witness the shooting or the final interaction that led to it. There were no witnesses that provided testimony that Appellant intentionally and knowingly caused the death of Deans Anderson.

Appellant’s statement was that when Deans Anderson confrontationally stepped toward him and reached toward him, as he was holding the gun, he twisted away and the gun discharged, and that he did not mean for it do so. That is not an admission of Appellant of intent or knowledge of anything other than an involuntary defensive reflex to avoid harm to himself in the event his weapon was taken away and used on him, and an inability to make the weapon do as he intended, or to keep it from doing as he intended it not do. Alternatively, Kristie Ortiz’ hearsay statement that the weapon discharged when Cree-Anna Dawn grabbed Appellant’s arm cannot and does not establish an intentional or knowing murder, but instead just an accident. And by all

25

accounts, Appellant did not confront Deans Anderson to murder, assault, or do anything else than to retrieve money rightfully belonging to Cree-Anna Dawn and in the possession of Deans Anderson by virtue of his act of robbery.

While the versions may be inconsistent, there yet remains no version entered in testimony wherein Appellant committed the act as charged, and thus this is a “no evidence” matter. Even if Appellant were completely disbelieved by his jury, there is no evidence to the contrary by which a jury may have found beyond all reasonable doubt Appellant guilty as charged.

The Seventh Court of Appeals asserts, to the contrary, and specifically contrary to Johnson, that a fact-finder may infer evidence contrary to that adduced at trial. While correct that a jury was entitled to take at face value Appellant’s statement that, as decedent stepped towards him, he “twisted and pulled the trigger,” what the Seventh Court of Appeals misses is that the face value of such a statement is inherently limited. “I twisted and pulled the trigger” only answers the question of how the deed was done, but not why. As the crux of the offense is why the deed was done, there necessarily must be more. In this case the more was answered by Appellant as an involuntary flinching, or answered by his girlfriend as an involuntary discharge when his arm was either bumped or grabbed by the co-defendant. Yet there was no testimony to the contrary. Thus, in upholding the sufficiency of the evidence in this matter, the Seventh Court of Appeals has held that a jury may indeed infer non-existent evidence, and evidence to the contrary of that adduced at trial. And while correct that Appellant’s jury may have been within its prerogative to disregard the testimony of both Appellant and the only other witness to testify as to motive, or even the co-defendant’s statement that Appellant had agreed to “not do anything stupid” as they were approaching the decedent’s apartment, they were yet not within their prerogative to believe the opposite and self-supply the missing element of intention or knowledge, as the standard under which any and every criminal jury must labor is the standard of beyond all reasonable doubt.

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PRAYER

WHEREFORE, Appellant respectfully prays this honorable Court of Criminal Appeals take this case under review for the reasons stated above, and that after findings by this Court, that the judgment of the Court of Appeals for the Seventh District of Texas at Amarillo be reversed, the Judgment and conviction vacated, and Appellant Dustin Ryan Rhoades be ordered acquitted of the charges against him, or otherwise be remanded to the trial court for a new trial.

Respectfully submitted,

________________________________

JAMES E. WOOLDRIDGE S.B.T. No. 24010492 600 S. Tyler Street Suite 1704 LB 12051 Amarillo, Texas 79101 TEL: (806) 418 8575 FAX: (806) 418 8576 j.e.wooldridge@att.net Attorney for Appellant DUSTIN RYAN RHOADES

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CERTIFICATE OF SERVICE

I, JAMES E. WOOLDRIDGE, certify that a true and correct copy of the foregoing Brief For Appellant was delivered by electronic service, via email to John L. Owen of the 47TH Judicial District Attorney’s Office for Appellee the State of Texas, 501 S. Fillmore Street, Suite 5A, Amarillo, Texas 79101, at jackowen@co.potter.tx.us on the 25TH day of November, 2015, in accordance with TRAP 9.5.

/s/ JAMES E. WOOLDRIDGE JAMES E. WOOLDRIDGE

CERTIFICATE OF COMPLIANCE I, JAMES E. WOOLDRIDGE, certify that the foregoing Brief For Appellant, including headings, footnotes, and quotations, but excepting caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix, contains 4,430 words.

/s/ JAMES E. WOOLDRIDGE JAMES E. WOOLDRIDGE

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APPENDIX A

In The

Court of Appeals

Seventh District of Texas at Amarillo

No. 07-13-00319-CR

DUSTIN RYAN RHOADES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 320th District Court Potter County, Texas

Trial Court No. 65,540-D, Honorable Don R. Emerson, Presiding

September 15, 2015

MEMORANDUM OPINION

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

A jury convicted appellant Dustin Ryan Rhodes of murder and assessed

punishment, enhanced, at forty years’ confinement in prison.1 The trial court imposed

sentence accordingly. Appellant challenges his conviction through four issues. Three

seek rendition of a judgment of acquittal and the fourth, a new trial. We will affirm the

judgment of the trial court.

1 See TEX. PENAL CODE ANN. § 19.02(b) (West 2011) (murder); § 12.42(c)(1)

(West Supp. 2014) (enhancing minimum term of confinement for first degree felony to fifteen years).

Background

Around midnight on June 7, 2012, Deans Anderson was found shot to death just

inside his Amarillo apartment. Another resident of the complex had called 911 after he

heard a gunshot and watched a man and woman run to a red minivan. The man carried

a “small black pistol.” From Anderson’s cellphone a police detective obtained

information that led officers, through an undercover investigation, to Cree-Anna Shamell

Dawn, a participant in an escort service. Dawn had accompanied appellant to the door

of Anderson’s apartment on the night of his death. She identified appellant as

Anderson’s shooter.

Questioned by police, appellant gave a voluntary written statement. According to

his statement, appellant had been acquainted with Dawn for a short time. On June 7,

she called appellant to tell him a man attempted to rape her and took her money. She

enlisted appellant’s help to recover the money. Using a minivan belonging to his

girlfriend Kristie Ortiz, appellant drove Dawn to the apartment complex and followed her

to Anderson’s apartment. Appellant held his .357 revolver in his hand. Anderson

opened the apartment door after Dawn knocked. Anderson spoke to Dawn. Appellant

then stepped up to the door, pointed the gun at Anderson and demanded he give Dawn

the money and empty his pockets. The men exchanged words and Anderson stepped

toward appellant. The statement continued, “I twisted and pulled the trigger. I didn’t

mean to. The shot hit the man in the face. I was sorry and wanted so bad to help him.”

Appellant and Dawn ran to the minivan and left the complex. A few days later, his

statement said, appellant sold the gun to an unidentified man along a north Amarillo

street.

Appellant was charged by indictment with Anderson’s murder. Appellant’s

written statement was admitted into evidence at trial. Ortiz testified, telling the jury that

a few days after the occurrence appellant told her he pulled the gun on Anderson to

scare him and Dawn “pulled his arm away to quit, and then the gun went off.” Ortiz

acknowledged she did not recount this version of the occurrence in a June 12 written

statement to police.

A pathologist testified to his autopsy of Anderson’s body, and expressed the

opinion the cause of death was a gunshot wound to the head.

Appellant did not testify. He was convicted and sentenced as noted.

Analysis

By his first, third, and fourth issues appellant seeks rendition of a judgment of

acquittal. He requests reversal and remand in his second issue. We will first consider

appellant’s three rendition issues.

Sufficiency of the Evidence

In his first issue, appellant asserts the evidence was insufficient to prove he

intentionally or knowingly murdered Anderson because the firearm discharged as a

result of an “involuntary reflex.”

We evaluate the sufficiency of evidence supporting criminal convictions under the

standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L. Ed. 2d

560 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). That

standard requires that we view all evidence in the light most favorable to the verdict and

4

determine whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex.

Crim. App. 2005). As fact finder, the jury is the sole judge of the credibility of the

witnesses and may choose to believe all, some, or none of the testimony the parties

presented. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008); Chambers v.

State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Williams v. State, 290 S.W.3d 407,

412 (Tex. App.—Amarillo 2009, no pet.).

The State’s indictment charged appellant with murder under two theories, that he

intentionally and knowingly caused Anderson’s death by shooting him with a firearm;

and that he committed or attempted to commit a felony, deadly conduct, and in the

course of it committed or attempted to commit an act clearly dangerous to human life,

pointing a firearm at or in Anderson’s direction, that caused Anderson’s death. See

TEX. PENAL CODE ANN. § 19.02(b)(1), (b)(3) (West 2011).

Under Penal Code section 19.02(b)(1), a person commits murder if he

intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. §

19.02(b)(1). Section 19.02(b)(3) is the “felony murder” provision. TEX. PENAL CODE

ANN. § 19.02(b)(3). Essentially, felony murder is, “an unintentional murder committed in

the course of committing a felony.” Rodriguez v. State, 454 S.W.3d 503, 508 (Tex.

Crim. App. 2014) (citing Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App.

1999)). Specifically, felony murder is committed where a person “commits or attempts

to commit a felony, other than manslaughter, and in the course of and in furtherance of

the commission or attempt . . . he commits or attempts to commit an act clearly

dangerous to human life that causes the death of an individual.” Id. (quoting Penal

Code section 19.02(b)(3)). A person commits the offense of deadly conduct if he

“knowingly discharges a firearm at or in the direction of . . . one or more individuals.”

TEX. PENAL CODE ANN. § 22.05(b) (West 2011). Deadly conduct may serve as the

underlying felony for proof of felony murder. Washington v. State, 417 S.W.3d 713, 721

(Tex. App.—Houston [14th Dist.] 2013, pet. refused); Miles v. State, 259 S.W.3d 240,

247 (Tex. App.—Texarkana 2008, pet. refused).

A person acts intentionally with respect to a result of his conduct when “it is his

conscious objective or desire to engage in the conduct or cause the result.” TEX. PENAL

CODE ANN. § 6.03(a) (West 2011). A person acts knowingly with respect to a result of

his conduct when “he is aware that his conduct is reasonably certain to cause the

result.” TEX. PENAL CODE ANN. § 6.03(b).

The court’s charge authorized conviction under either of the State’s theories of

guilt, and from our review of the record we find the evidence sufficient to permit

conviction under either theory. By appellant’s statement, he pointed the .357 revolver at

Anderson and told him to give Dawn the money and empty his pockets. When

Anderson stepped toward him, appellant “twisted and pulled the trigger.” In its role as

trier of fact, the jury was entitled to accept appellant’s statement at face value. From his

conduct of pointing the revolver at Anderson at close range and pulling the trigger, and

despite appellant’s assertion he did not “mean to,” the jury was further entitled to infer

appellant intended the natural and usual consequence of such an action, the death of

Anderson. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Intent may

also be inferred from circumstantial evidence such as acts, words, and the conduct” of

the accused). The jury also could have concluded appellant’s actions were

6

accompanied by the knowledge that they were reasonably certain to cause Anderson’s

death, even if appellant did not intend it. Either mental state authorizes conviction for

murder.

The jury was equally entitled to disbelieve Ortiz’s version which included

appellant’s statement the gun discharged when Dawn pulled his arm away. Ortiz made

no mention of Dawn pulling appellant’s arm in her written statement given some eight

days after the shooting. Rather, she first mentioned this version in January 2013 during

a conversation with the prosecutor and an investigator.

Appellant’s written statement also provided evidence permitting a rational jury to

conclude beyond reasonable doubt that appellant knowingly discharged a firearm at or

in Anderson’s direction, that doing so was clearly dangerous to human life and that it

caused Anderson’s death. See TEX. PENAL CODE ANN. § 22.05(b).

Because, viewed in the light most favorable to the verdict, the record contains

evidence from which jurors rationally could have found all elements of the offense of

murder, the evidence is sufficient. Appellant’s first issue is overruled.

Motion to Quash Paragraph Two of the Indictment

By his third issue, appellant argues the trial court erred in refusing to quash

paragraph two of the indictment. As we understand appellant’s argument here, he

contends paragraph two of the indictment did not properly allege felony murder because

as worded it alleged only the misdemeanor level of deadly conduct.

The second paragraph of the indictment read:

AND THE GRAND JURORS do further present in and to the Court that . . . DUSTIN RYAN RHOADES, the defendant, on or about the 7th day of June, 2012 did then and there intentionally or knowingly commit or attempt to commit an act clearly dangerous to human life, to-wit: pointing a firearm at or in the direction of Deans Anderson, that caused the death of Deans Anderson, and the Defendant was then and there in the course of intentionally or knowingly committing a felony, to-wit: Deadly Conduct, and said death of Deans Anderson was caused while the Defendant was in the course of and in furtherance of the commission or attempt of said felony.

In his pretrial motion to quash appellant asserted, “As alleged, Deadly Conduct is

an act Reckless in its level of culpability, and is therefore a lesser included offense of

Manslaughter, and cannot therefore be charged as Murder against Defendant Dustin

Ryan Rhoades.” After a brief hearing on the morning of trial, the motion was denied.

The sufficiency of a charging instrument presents a question of law. Smith v.

State, 309 S.W.3d 10, 13 (Tex. Crim. App. 2010). An appellate court reviews a trial

judge’s ruling on a motion to quash a charging instrument de novo. Id. at 14.

As applicable here, a person commits the offense of murder if he commits a

felony, other than manslaughter, and in the course of and in furtherance of the

commission he commits an act clearly dangerous to human life that causes the death of

an individual. See TEX. PENAL CODE ANN. § 19.02(b).

Penal Code section 22.05 contains misdemeanor and felony categories of the

offense of deadly conduct. See TEX. PENAL CODE ANN. § 22.05. First, the offense is

committed if a person “recklessly engages in conduct that places another in imminent

danger of serious bodily injury.” TEX. PENAL CODE ANN. § 22.05(a). This is a Class A

misdemeanor. TEX. PENAL CODE ANN. § 22.05(e). Second, a person commits the

offense of deadly conduct if he “knowingly discharges a firearm at or in the direction

8

of . . . one or more individuals.” TEX. PENAL CODE ANN. § 22.05(b). This is a third-

degree felony. TEX. PENAL CODE ANN. § 22.05(e). Thus the felony category of deadly

conduct is committed only by knowingly discharging a firearm.

Section 22.05(c) states that “recklessness and danger are presumed if the actor

knowingly pointed a firearm at or in the direction of another . . . .” TEX. PENAL CODE ANN.

§ 22.05(c). Those concepts, recklessness and danger, have application only to the

misdemeanor category of deadly conduct. See TEX. PENAL CODE ANN. § 22.05(a). But

paragraph two of the indictment alleged that appellant pointed a firearm at or in the

direction of Anderson.

Perhaps because, and as the State concedes, paragraph two of the indictment

“could have been more artfully drawn,” appellant confuses the elements of the required

underlying felony with the “act clearly dangerous to human life” requirement contained

in the felony murder provision of section 19.02(b)(3). It was to satisfy that requirement

that paragraph two contains the allegation appellant pointed a firearm.

It now appears “well established under Texas law that deadly conduct can be the

underlying felony for felony murder.” Washington, 417 S.W.3d at 721 (citing Miles, 259

S.W.3d at 247; Yandell v. State, 46 S.W.3d 357, 361 (Tex. App.—Austin 2001, pet.

refused); Rodriguez v. State, 953 S.W.2d 342, 354 (Tex. App.—Austin 1997, pet.

refused), cited with approval in Lawson v. State, 64 S.W.3d 396, 401 (Tex. Crim. App.

2001) (Cochran, J., concurring)). The culpable mental state for felony deadly conduct is

knowingly, which precludes the offense from being a lesser-included offense of

manslaughter which requires only the less culpable mental state of recklessness. See

Washington, 417 S.W.3d at 721-22 (citing Yandell, 46 S.W.3d at 361). Finally, the

underlying felony necessary for proving the offense of felony murder, so long as it is not

manslaughter, may also serve as the act clearly dangerous to human life that causes

the death of an individual. See Johnson v. State, 4 S.W.3d 254, 258 (Tex. Crim. App.

1999) (disavowing the “overly broad statement in Garrett v. State, 573 S.W.2d 543, 546

(Tex. Crim. App. [Panel Op.] 1978), that in order to support a conviction under the

felony murder provision, ‘[t]here must be a showing of felonious criminal conduct other

than the assault causing the homicide’” and holding the only limitation by merger on the

offense of felony murder is a conviction “will not lie when the underlying felony is

manslaughter or a lesser included offense of manslaughter”). We find no error by the

trial court in denying appellant’s motion to quash. Appellant’s third issue is overruled.

Standing

Appellant argues in his fourth issue that police learned his identity, and as a

result later obtained his written statement, through the means of unlawful activity, a

violation of the prostitution statute.2 Therefore, he urges, the trial court erred by failing

to suppress identification evidence and his written statement.

As noted, police discovered a recent contact on Anderson’s cellphone. Following

up, they linked the call to a person working in an “escort service” under the alias

“Chocolate Cherry.” Officers set up an undercover prostitution investigation of this

person and arranged a meeting with her. During a hearing outside the presence of the

jury, a detective testified at the meeting an offer of sex for money was made and

2 See TEX. PENAL CODE ANN. § 43.02 (West Supp. 2014) (offense of prostitution).

accepted. As a result, Chocolate Cherry was arrested. She was then identified as

Dawn. Further investigation based on information Dawn provided led to a second

interview, in which Dawn told the detective she and appellant were at the door of

Anderson’s apartment, appellant held a gun in his hand, he pointed the gun at

Anderson, and she ran while appellant remained at the door with the gun. As she ran

she heard a gunshot. Appellant thus asserts his identification as a suspect resulted

from the initial undercover conversation with Dawn, in which an officer participated in

the agreement for sex for money.3

Code of Criminal Procedure article 38.23(a) states, “No evidence obtained by an

officer or other person in violation of any provisions of the Constitution or laws of the

State of Texas, or of the Constitution or laws of the United States of America, shall be

admitted in evidence against the accused on the trial of any criminal case.” TEX. CODE

CRIM. PROC. ANN. art. 38.23(a) (West 2005). Article 38.23 protects “a suspect’s privacy,

property, and liberty rights against overzealous law enforcement.” Wilson v. State, 311

S.W.3d 452, 459 (Tex. Crim. App. 2010). It is substantive in nature, providing a remedy

for a violation of those rights. Id. But a defendant has no standing to complain about

evidence seized in violation of Texas law unless the defendant’s rights were invaded by

the seizure. Chavez v. State, 9 S.W.3d 817, 819 (Tex. Crim. App. 2000) (citing Fuller v.

State, 829 S.W.2d 191, 201-02 (Tex. Crim. App. 1992), overruled on other grounds by

3 Some penal statutes contain exceptions allowing law enforcement agents to engage in conduct that otherwise would be criminal. See, e.g., TEX. HEALTH & SAFETY CODE ANN. § 481.062(a)(4) (West 2010); Wilson v. State, 311 S.W.3d 452, 463 (Tex. Crim. App. 2010) (“The Texas Legislature specifically exempted police officers who are acting in their official capacity from liability for the penal offense of possession of a controlled substance”). Appellant points out the prostitution statute contains no similar exception.

Riley v. State, 889 S.W.2d 290 (Tex. Crim. App. 1994)). We find appellant has no

standing to complain that the officer violated the prostitution statute.

Fuller is instructive here. While detained in the county jail the defendant in Fuller

made an audio recording and gave it to a fellow prisoner, Hall. 829 S.W.2d at 201.

Another prisoner took the recording from Hall and delivered it to jail authorities. Id. The

trial court admitted the recording into evidence at the punishment phase of the

defendant’s capital murder trial to show his lack of remorse. Id. The defendant argued

the recording should have been suppressed under article 38.23(a) because it was

illegally taken from Hall. Id. The State countered that the defendant had no standing to

contest the evidence. The court agreed, concluding the defendant lacked standing “to

challenge such illegality in the context of a criminal prosecution.” Id. at 202. It

explained that despite its broad language, article 38.23(a) does not “confer automatic

third party standing upon all persons accused of crimes, such that they may complain

about the receipt of evidence which was obtained by violation of the rights of others, no

matter how remote in interest from themselves.” Id.

Thus under the facts of Fuller: The justiciable injury suffered as a direct and immediate result of the illegality of which [the defendant] here complains was not his own. The illegality, if any, was theft or conversion. The victim, if any, was [Hall]. [She] may have a cognizable cause of action for conversion against someone. The State of Texas may have a basis to prosecute someone for the criminal offense committed against [Hall]. But no one may sue, nor may the State of Texas prosecute, anyone for an injury to the [defendant] arising from the illegality about which he now complains, since he suffered no injury actionable under our law as a result of it. No actionable wrong was visited upon [the defendant] as a result of the seizure. For this reason we hold that he is also without standing to challenge such illegality in the context of a criminal prosecution . . . .

829 S.W.2d at 202.

In like manner, appellant does not explain how the undercover operation that

resulted in Dawn’s arrest for prostitution invaded his rights with respect to the charge of

murdering Anderson. See Gower v. State, No. 02-10-00362-CR, 2011, Tex. App.

LEXIS 8185, at *19-25 (Tex. App.—Fort Worth Oct. 13, 2011, no pet.) (mem. op., not

designated for publication) (holding defendant lacked standing to complain under article

38.23(a) of evidence obtained from deputy medical examiner, allegedly acting in

violation of Code of Criminal Procedure article 49.25 (a Class B misdemeanor), when

defendant failed to identify a violation of his own rights resulting from the alleged

violation); Orr v. State, 306 S.W.3d 380, 400 (Tex. App.—Fort Worth 2010, no pet.)

(holding defendant had no standing to complain that testimony of unlicensed fire

investigator should have been struck under article 38.23(a) when defendant did not

allege a violation of her rights related to the investigator’s alleged violation of law); State

v. Tyson, 919 S.W.2d 900, 903 (Tex. App.—Eastland 1996, pet. refused) (finding

defendant had no standing to complain under article 38.23 of evidence agents obtained

through allegedly unlawful purchase of alcoholic beverages by cooperating minor as

none of defendant’s rights were violated by the transaction); Stockton v. State, 756

S.W.2d 873, 874 (Tex. App.—Austin 1988, no pet.) (finding evidence obtained by an

undercover narcotics officer enrolled in high school, allegedly in violation of the Texas

Education Code, was not subject to exclusion under article 38.23); see also Andrews v.

State, 164 Tex. Crim. 1, 3, 296 S.W.2d 275, 276 (1956) (overruling a defendant’s

contention that testimony from a physician was inadmissible because the physician

conducted a vaginal examination of a rape victim while not licensed to practice). Thus

13

appellant has no standing to complain, under article 38.23, of the admission of the

challenged evidence. Appellant’s fourth issue is overruled.

Failure to Instruct on Voluntariness

By his second issue appellant complains the trial court erred by refusing to

submit a requested instruction on voluntariness. Appellant’s proposed instruction

provided:

You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, omission, or possession. Conduct is not rendered involuntary merely because the person did not intend the results of his conduct.

You are instructed that it is your duty to consider the evidence of all relevant facts and circumstances surrounding the alleged shooting of Deans Anderson and the previous relationship existing between the accused and the deceased, if any, including by way of any third party, together with all relevant facts and circumstances going to show the condition of the mind of defendant Dustin Ryan Rhoades at the time of the alleged shooting, and you should place yourselves in the position of defendant Dustin Ryan Rhoades at the time in question and view the circumstances from his viewpoint alone.

Thus, if you believe from the evidence beyond a reasonable doubt that on the occasion in question the defendant, Dustin Ryan Rhoades, did cause the death of Deans Anderson by shooting him with a gun, as alleged in the indictment, but you further believe from the evidence, or you have a reasonable doubt thereof, that the shooting was a result of an accidental discharge of the gun and was not the voluntary act or conduct of the defendant, you will acquit the defendant and say by your verdict “Not Guilty.”

The court denied the requested instruction.

“When a defensive theory is raised by evidence from any source and a charge is

properly requested, it must be submitted to the jury.” Woodfox v. State, 742 S.W.2d

408, 409 (Tex. Crim. App. 1987) (quoting Gavia v. State, 488 S.W.2d 420, 421 (Tex.

Crim. App. 1972)). A trial court must submit an instruction on every defensive issue

raised by the evidence, “regardless of whether the evidence is strong, feeble,

unimpeached, or contradicted, and even when the trial court thinks that the testimony is

not worthy of belief.” Rogers v. State, 105 S.W.3d 630, 637 (Tex. Crim. App. 2003)

(concerning voluntariness of conduct as defensive issue). The evidence must support a

rational jury finding on each element of the defense. Shaw v. State, 243 S.W.3d 647,

658 (Tex. Crim. App. 2007).

“A person commits an offense only if he voluntarily engages in conduct, including

an act, an omission, or possession.” TEX. PENAL CODE ANN. § 6.01(a) (West 2011).

“Voluntariness,” as applied by section 6.01(a), refers only to one’s own physical body

movements. Rogers, 105 S.W.3d at 638 (citing Rashann Maurice Brown v. State, 89

S.W.3d 630, 633 (Tex. Crim. App. 2002)). “If those physical movements are the

nonvolitional result of someone else’s act, are set in motion by some independent non-

human force, are caused by a physical reflex or convulsion, or are the product of

unconsciousness, hypnosis or other nonvolitional impetus, that movement is not

voluntary.” Id. (citing Tex. Penal Code § 6.01, Practice Commentary).

[B]efore criminal responsibility may be imposed, the actor’s conduct must “include[ ] either a voluntary act or an omission when the defendant was capable of action.” The operative word under Section 6.01(a), for present purposes, is “include.” Both the Model Penal Code comments and the Practice Commentary to the 1974 Texas Penal Code stress that the “voluntary act” requirement does not necessarily go to the ultimate act (e.g., pulling the trigger), but only that criminal responsibility for the harm must “include an act” that is voluntary (e.g., pulling the gun, pointing the gun, or cocking the hammer).

Farmer v. State, 411 S.W.3d 901, 905-06 (Tex. Crim. App. 2013) (quoting Rogers, 105

S.W.3d at 638).

Here, according to appellant, he armed himself with a .357 revolver which he

carried in his hand as he and Dawn approached Anderson’s apartment door. Appellant

stepped up to the door with his gun pointed at Anderson and demanded money. Based

on appellant’s own version of the occurrence he voluntarily engaged in an act leading to

the shooting of Anderson. That is, he carried his loaded revolver and pointed it at

Anderson. No evidence suggests those actions were involuntary. “All that is necessary

to satisfy Section 6.01(a) of the Texas Penal Code is that the commission of the offense

included a voluntary act.” Farmer, 411 S.W.3d at 907 (emphasis in original). Therefore,

the trial court did not err by refusing appellant’s request for a voluntariness instruction.

See George v. State, 681 S.W.2d 43 (Tex. Crim. App. 1984) (finding a person

“voluntarily engages in conduct when the conduct includes, inter alia, a voluntary act

and its accompanying mental state. That such conduct also includes an involuntary act

does not necessarily render engaging in that conduct involuntary” (footnote omitted,

emphasis in original)); Conroy v. State, 843 S.W.2d 67, 72 (Tex. App.—Houston [1st

Dist.] 1992, no pet.) (“Even assuming that the discharge of the weapon was unintended,

the intentional pointing of a weapon is a voluntary act and the resulting death is

imputable to the [defendant]”); Arroyo v. State, No. C14-92-00540-CR, 1994 Tex. App.

LEXIS 459, at *11 (Tex. App.—Houston [14th Dist.] Mar. 10, 1994, no pet.) (not

designated for publication) (explaining instruction on voluntariness not required if

defendant engaged in single voluntary act and required mental state even though

involuntary act may also have constituted part of overall act). Cf. Farmer, 411 S.W.3d

at 906 (“Thus, a voluntary act that comprised a portion of the commission of the offense

16

is sufficient to satisfy the requirement of Section 6.01(a), even if that voluntary act was

accidental or the consequences of that act were unintended”).

Appellant’s second issue is overruled.

Conclusion

Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.

James T. Campbell

Justice

Do not publish.

Pirtle, J., concurring.