Trout, Johnny Craig
Opinion
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A?Pa\an-v FILI . COURT OF CRIMINAL APPEALS I
The ^Me e>£ Tews ^^ Abel Acosta, Clerk
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fe-VYVio^ "for Di^creVionarij Review
s o t cr 3*vist
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ioi^00 s^<^* Summary of Argument
This is argument for Appellant, Johnny Craig Trout on judgements of the Courts of Ector County. The Appellant whom is pro se, tryed to get an Attorney pro bono. The trial" court rules for the Grand Jury were not followed, the rule for Limine was in effect. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. 1.05. were violated, none of the Rights of Accused were given. Appelant was never given a speedy puMfc trial, Appelant was never called to give a statement to the Grand Jury. Appellant never received anything from the Grand Jury except the copy of the indictment, which was delivered to Appellant in jail by the Sheriff on April 1\ 2010. There was no information given about who testified, or if anyone testified before the Grand Jury.
The documents state that the Appellant was assigned Attorney Johnny Carrasco, this Attorney has never made any contact what so ever. The Appellant has never had an Attorney for this Appeal. Having tried to locate Mr. Carrasco, he is not even listed in the yellow pages under Attorney's in Ector County at all.
The Court of Appeals affirmed the judgement of the Court. My Mother, Karen Trout is the only help I have had. I was ordered to jail for 180 days, I shoud have had a Court Appointed Attorney, one was never made available to me at all.
On January 11th, 2010, Appellant went after his own vehicle, Appellant went to jail, bonded out the next day for $100. On January 22nd, 2010 the Ector County Sheriff came and arrested Appellant at his job for burglary. ^>ee Cla\m^v\A-: brewW BurL pia.^ <*n o^o^Sy cVwyjc m ftppelloM- on o^M/o^i, This was a ^x\sd ctarge, ass l^ocl ca^\ see, on 4he vervj 2>aw)t cjkvj,, femuA^ 8arK cWmdl cl Crime. Vie^im^ CowypeAsocVion -from -v^ne Office of-^fhc
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Court of Criminal Appeals. By. Q^f^/d/rA/7L dchrtw Cro' ,AATA>1 O"^" o /? X -fht fyflpeNcuU- prov| for Q\rw:e and. mtmj -Frew -vhe. ©£ 4he_ %tt\ksd, $t\s \(\\&, Wk Leg., voLZ, p/2>irI/ cklZZ. Ar-V. \.05. VJt c^&IC for forg\veAOb Vn noV Wwaim proper rCpresev\4-a4ioia, \Xhdir Uxwj, is nopm
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/Z6S-/S npjpiM A I
A?Pa\an-v FILI . COURT OF CRIMINAL APPEALS I
The ^Me e>£ Tews ^^ Abel Acosta, Clerk
CB>, KnA 4Vic HO^ ^vS-Vnc-V Qour-t- for £cfc>r "Covmty, Trial Cou.r4- Uo. A-SV^
fe-VYVio^ "for Di^creVionarij Review
s o t cr 3*vist
^je\0
ioi^00 s^<^* Summary of Argument
This is argument for Appellant, Johnny Craig Trout on judgements of the Courts of Ector County. The Appellant whom is pro se, tryed to get an Attorney pro bono. The trial" court rules for the Grand Jury were not followed, the rule for Limine was in effect. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. 1.05. were violated, none of the Rights of Accused were given. Appelant was never given a speedy puMfc trial, Appelant was never called to give a statement to the Grand Jury. Appellant never received anything from the Grand Jury except the copy of the indictment, which was delivered to Appellant in jail by the Sheriff on April 1\ 2010. There was no information given about who testified, or if anyone testified before the Grand Jury.
The documents state that the Appellant was assigned Attorney Johnny Carrasco, this Attorney has never made any contact what so ever. The Appellant has never had an Attorney for this Appeal. Having tried to locate Mr. Carrasco, he is not even listed in the yellow pages under Attorney's in Ector County at all.
The Court of Appeals affirmed the judgement of the Court. My Mother, Karen Trout is the only help I have had. I was ordered to jail for 180 days, I shoud have had a Court Appointed Attorney, one was never made available to me at all.
On January 11th, 2010, Appellant went after his own vehicle, Appellant went to jail, bonded out the next day for $100. On January 22nd, 2010 the Ector County Sheriff came and arrested Appellant at his job for burglary. ^>ee Cla\m^v\A-: brewW BurL pia.^ <*n o^o^Sy cVwyjc m ftppelloM- on o^M/o^i, This was a ^x\sd ctarge, ass l^ocl ca^\ see, on 4he vervj 2>aw)t cjkvj,, femuA^ 8arK cWmdl cl Crime. Vie^im^ CowypeAsocVion -from -v^ne Office of-^fhc
TKis b where, -VVub al\ s-w-ted, -the a^aaW- charge NAjas CjDmj)\e-Ve\^ maie u.^> so -VW-V ^otJ(\d& ^uir^\ CP^lrf fPr\5El\i O^im $5"00?6 -Trom 4ViC PH-Yorna/ CqWraA. The purpose oJP -\-Vvl Woh'on in Um\ne, which wi-rY^eAA ai\ w^tb!>ts CAUed on ftfpeJlayv4-s beWf, mMrivc-kd wi-Vnoseb -K> re-frain fro^\ arwj wafUioia or 'wv-Verrocyx-Hbvx, cUmoVKf, or md£r-e_c&i/ in an^
Th-c \MMTi(L*V A-vWfteu ouimte ^^ ^f\od discovery ordor d\A rto^ysrc -V^e WVc -vo dispose \v\ formaloia rtjard\^a -V-V^ ideMi^M ©•£ voU-neeses who -\-eM-V£ie$ 7?c flppc.lla/dt nf\)d the. Mate. arc NOJ- On) (FiQi/at rtround, fippcdlarJT Qhod/d /We had ry /HtnrNCy, %'.$ i£ _x
rJot Truth Q/vrJ ofo'st/ce. ellodd arid Mtdher ktvouJ HiS Pciih'oA/ is Msr/~ at all
dnteA 19 riay trY f)e.o, do/?. T/ie, %tide put that fake Aitor/vey '6 h)gn
Court of Criminal Appeals. By. Q^f^/d/rA/7L dchrtw Cro' ,AATA>1 O"^" o /? X -fht fyflpeNcuU- prov| for Q\rw:e and. mtmj -Frew -vhe. ©£ 4he_ %tt\ksd, $t\s \(\\&, Wk Leg., voLZ, p/2>irI/ cklZZ. Ar-V. \.05. VJt c^&IC for forg\veAOb Vn noV Wwaim proper rCpresev\4-a4ioia, \Xhdir Uxwj, is nopm ^k;Ck^f^4kra^ v J , -PAr r<>r/* °~ aAid £"** RECEIVED IN onJ ™fjppe.ll**1 A ,j -/S° Mofor . * COURT OF CRIMINAL APPEALS ' ' ,, C\&4 C^6^^ DEC 03 2015 Abel Acosta, Clerk ii Opinion filed August 28, 2015 In The Cletoentf) Court of gfypeate No. 11-13-00377-CR JOHNNY CRAIG TROUT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 70th District Court Ector County, Texas Trial Court Cause No. A-37,204 MEMORANDUM OPINION The jury found Appellant, Johnny Craig Trout, guilty of the second-degree felony offense of burglary of a habitation.1 The jury assessed punishment at confinement for five years and a fine of $5,000, but recommended community supervision. The trial court accepted the recommendation ofthe jury, suspended the ]See TEX. PENAL CODE ANN. § 30.02(a), (c)(2) (West 2011). sentence, placed Appellant on community supervision for ten years, imposed the fine of $5,000, and then sentenced Appellant to 180 days in the county jail as part of his community supervision. Appellant's pro se brief makes several complaints but does not outline any issues; however, we construe the brief to raise two issues on appeal with an attempt to raise two additional issues. We affirm. I. The Charged Offense The grand jury returned an indictment against Appellant for the first-degree felony offense of burglary of a habitation for entering a habitation without the consent of the owner and committing or attempting to commit the felony offense of aggravated assault with a deadly weapon. Penal § 30.02(d). The jury convicted Appellant of the lesser included offense of burglary of a habitation for entering a habitation without the consent of the owner and committing or attempting to commit simple assault. Id. § 30.02(a)(3). As relevant here, a person commits the offense of burglary of a habitation if, without the effective consent of the owner, he enters a habitation and commits or attempts to commit a felony, theft, or an assault. Id. This offense is a felony of the second degree if the offense occurs in a habitation. Id. § 30.02(c)(2). An individual adjudged guilty ofa felony in the second degree shall be punished by imprisonment for any term ofnot more than twenty years orless than two years and a fine not to exceed $10,000. Id. § 12.33 (West 2011). II. Evidence at Trial One winter day in Odessa, Brenda Burk and Dustin Burk, Appellant's former girlfriend and her son, visited Deanna Crouch at her home. Michelle Havner, Crouch's daughter-in-law, was also at Crouch's home. During the visit, Crouch heard a noise at the door to her carport, and she looked out of the small diamond- shaped window in the door and saw someone bending down on the other side. Crouchthen reached to lockthe deadbolt when Appellant burst through the door and knocked her over. Crouch testified that Appellant yelled, "I'm going to kill. Give 2 me my keys, b—h." Similarly, Brendatestified that Appellant yelled, "I'm going to kill you, b—h." Brenda then screamed to her son, Dustin, who was in the kitchen, that Appellant was holding a knife. At trial, Dustin described Appellant's knife as a pocketknife, whereas Brenda described it as a huge kitchen knife with a very long blade, almost machete size. Crouch testified that Appellant had a pocketknife in one hand and a butcher knife in the other. Michelle, who went to the back room of the house after Appellant forced his way in, testified that she did not see Appellant with a knife. Dustin ran out of the kitchen and kicked Appellant in the stomach and the crotch, as Brenda ran outside into the carport to call 911. Dustin then shoved Appellant out the door into the carport and threw a crate at him as Appellant lunged toward Brenda with aknife. Appellant then ran down the street to the storerooms located in the alleyway on Crouch's property. Appellant then walked back toward the house as a deputy from the Ector County Sheriffs Department pulled into Crouch's driveway. Justin Hamm, a deputy with the sheriffs department, apprehended Appellant, but Deputy Hamm did not find the knife. Matthew Havner, Crouch's son, arrived at the scene and walked back to the storerooms to search for Appellant's knife. Matthew testified that he found a knife with a seven-inch blade by the storerooms, picked itup with a plastic bag, and called the sheriffs department to retrieve the knife. Vicki Drennan, a crime scene investigator, testified that the sheriffs department catalogs all evidence with an invoice number. However, if a defendant pleads guilty to a charge, then the evidence is destroyed. After Appellant's arrest, he pleaded guilty to a violation of the protective order that Brenda Burk filed some months earlier, so the sheriffs department destroyed the knife without cross-referencing it to the present case. III. Analysis Appellant, who is pro se, first submitted a set of documents written by his mother as his brief. The State moved to have the brief redrawn, and we ordered Appellant to submit a new brief. The second brief, written by Appellant, failed to (1) identify the parties, (2) provide an index ofauthorities, (3) present a statement of the case, (4) outline issues presented, (5) give a summary of his argument, and (6) provide anargument with citations toboth the record and authorities. See Tex. R. App. P. 38.1(a), (c), (d), (f), (h), (i). Although Appellant provided a recitation of facts, he rarely cited to the record except to briefly reference testimony about the knife and to claim alleged inaccuracies in the record. See Tex. R. App. P. 38.1(g); Narvaiz v. State, 840 S.W.2d 415, 430 (Tex. Crim. App. 1992) (held appellant waived any error by failing to identify where in the record the alleged error occurred). Appellant is not entitled to special consideration solely because he is pro se. See Johnson v. State, 760 S.W.2d 277, 279 (Tex. Crim. App. 1988). Although we allow some latitude to a pro se appellant to comply with the Rules of Appellate Procedure, Appellant's brief fails to meet most ofthe requirements.2 See Perez v. State, 261 S.W.3d 760, 763 n.2 (Tex. App.—Houston [14th Dist] 2008, pet. refd) (a pro se litigant is held to the same standards as alicensed attorney and must comply with applicable laws and rules ofprocedure). After a review ofAppellant's brief, we note that Appellant complains about the sufficiency ofthe evidence and alleged excessive punishment in violation of the Eighth Amendment of the United States Constitution.3 And even though his briefing is insufficient, we note that he also 2We note that Appellant was represented by retained counsel attrial and that Appellant thereafter presented aclaim of indigence to the trial court with respect to this appeal. The trial court determined that Appellantwas not indigent. 3See U.S. CONST, amend. VIII. claims the State withheld evidence, which is an allegation that the State violated Brady.* Appellantalso complains about the jury verdict form. A. Challenge to Sufficiency oftheEvidence Appellant contends that the evidence was insufficient to sustain his conviction for burglary of a habitation. We review sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 318 (1979). Brooks v. State, 323 S.W.3d 893,912 (Tex. Crim. App. 2010). Under this standard, we review all of the evidence inthe light most favorable to the jury's verdict and decide whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. Thetrierof fact holds theresponsibility to resolve conflicts inthetestimony fairly, weigh theevidence, and draw reasonable inferences from basic facts to ultimate facts. Id. We are to resolve inconsistencies in the testimony in favor ofthe verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet. refd). The relevant element, under Section 22.01(a)(2) of the Texas Penal Code, which was properly outlined in the jury charge, is "intentionally or knowingly threatens another with imminent bodily injury." PENAL § 22.01(a)(2) (assault). Brenda testified that Appellant threatened to kill her and lunged at her with a knife. Though the witnesses' testimony was inconsistent regarding Appellant's possession ofa knife, possession ofa deadly weapon is not an element ofthe lesser included offense ofwhich Appellant was convicted. Id § 30.02(a). Ifthe evidence raises any conflicting inferences, we presume that the trier of fact resolved such conflicts in favor of the prosecution. Jackson, 443 U.S. at 318; Brooks, 323 S.W.3d at 894; 4Brady v. Maryland, 373 U.S. 83, 87(1963). .Curry, 30 S.W.3d at 406. As factfinder, the jury may determine the weight and credibility of a witness's testimony. Sharp, 707 S.W.2d at 614. We hold the evidence was sufficient for the jury to have found beyond a reasonable doubt that Appellant entered Crouch's habitation, without her consent, and committed or attempted to commit an assault. We overrule Appellant's issue on the sufficiency of the evidence. B. Allegation ofCruel and Unusual Punishment Appellant argues that his sentence was very excessive and constitutes cruel and unusual punishment mviolation ofthe Eighth Amendment ofthe United States Constitution. See U.S. CONST, amend. VIII. Appellant did not raise this issue at trial, and it is waived. Tex. R. App. P. 33.1(a); Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th Dist] 2010, pet. refd). We overrule Appellant's issue on punishment. C. Complaints about Grand Jury Notes and Handwritten Jury Verdict Form Appellant complains that he did not get grand jury witness information, which the State interprets as an attempt to claim a Brady violation because a list ofgrand jury witnesses was never produced. Appellant also complains that the trial court improperly handwrote part ofthe jury verdict form. Appellant does not cite to any authorities on these complaints, and these complaints are waived. See Tex. R. APP. P. 38.1; Perez, 261 S.W.3d at 765. D. Two Miscellaneous Issues Finally, Appellant complains that the court reporter's record is inaccurate concerning certain dates and testimony. He claims, among other things, that the knife was not accidentally destroyed by law enforcement but was part of the evidence at trial. Appellant's last complaint is that he did not receive any tape recordings, as part ofthe appellate record, to review to prepare his appeal. We note .that no tape recordings were admitted into evidence at trial. Again, Appellant has failed to cite any authorities to support his complaints, and these issues are waived. See TEX. R. App. P. 38.1(h); Perez, 261 S.W.3d at 765. TV. Conclusion We have reviewed the record, and we hold that the evidence is sufficient to support Appellant's conviction. We further hold that Appellant waived his complaints about punishment, the grand jury information, the jury verdict form, and alleged inaccurate or missing evidence. We overrule all ofAppellant's issues. V. This Court'sRuling We affirm the judgment ofthe trial court. MIKE WILLSON JUSTICE August 28, 2015 Do notpublish. See TEX. R. App. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J. CAUSE NO. 11-13-00377-CR IN THE COURT OF APPEALS ELEVENTH JUDICIAL DISTRICT OF TEXAS JOHNNY CRAIG TROUT, Appellant STATE OF TEXAS, Appellee On appeal from the 70th Judicial District Court of Ector County, Texas Trial Court Cause Number A-37,204 STATE'S APPELLATE BRBEF Michael Bloch Assistant District Attorney Ector County District Attorney's Office Ector County Courthouse 300 N. Grant, Room 305 Odessa, Texas 79761 (432) 498-4230 Phone (432) 498-4293 Fax Attorney for the State of Texas Identity of Parties and Counsel ATTORNEYS FOR THE STATE AT TRIAL: Brooke Hendricks Amanda Navarette Assistant District Attorneys Ector County Courthouse 300 N. Grant, Room 305 Odessa, Texas 79761 ATTORNEY FOR THE STATE ON APPEAL Michael Bloch Assistant District Attorney Ector County Courthouse 300 N. Grant, Room 305 Odessa, Texas 79761 ATTORNEY FOR THE APPELLANT AT TRIAL: Jeffrey T. Robnett P.O. Box 1583 Midland, Texas 79702 APPELLANT PRO SE ON APPEAL: Johnny Craig Trout P.O. Box 1793 Quinlan, Texas 75474 TRIAL COURT: Hon. Denn Whalen 70th District Court Ector County, Texas 300 N. Grant Odessa, Texas 79761 Table of Contents Identity of Parties and Counsel 2 Index of Authorities 4 Statement of the Case 7 Statement of Facts 7 Summary ofthe Argument 10 Argument I. The evidence was legally sufficient to sustain the jury's finding that Appellant committed the offense of burglary of a habitation with intent to commit assault 10 Conclusion and Prayer 14 Certificate of Service 15 Certificate of Compliance 15 Index of Authorities CASES Brady v. Maryland, 312> U.S. 83 (1963) 10,13 Clayton v. State, 235 S.W.3d772, 778 (Tex. Crim. App. 2007) 11 Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) 13 Ex parte Reed, 271 S.W.3d698, 726-727 (Tex. Crim. App. 2008) 14 Jackson v. Virginia, 443 U.S. 307, 319 (1979) 11 Johnson v. State, 803 S.W.2d 272, 279 (Tex. Crim. App. 1990) 12 Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996) 11 Knight v. State, 406 S.W.3d 578, 590 (Tex. App. - Eastland 2013, pet. refd) 14 Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991) 12 Padilla v. State, 254 S.W.3d 585, 590 (Tex.App.-Eastland 2008, pet. refd) 13 Sanders v. State, 119S.W.3d 818, 820 (Tex. Crim. App. 2003) 12 Swearingen v. State, 101 S.W.3d 89, 94 (Tex. Crim. App. 2003) 12 4 Winfrey v. State, 323 S.W.3d 875, 878-79 (Tex. Crim. App. 2010) 11 STATUTES AND RULES Tex. R. App. P. 38.1(i) 14 Tex. R. App. Proc. 33.1 (a)(1)(A) 13, 14 CAUSE NO. 11-13-00377-CR On appeal from the 70th Judicial District Court of Ector County, Texas Trial Court Cause Number A-37,204 TO THE HONORABLE JUSTICES OF SATO COURT: COMES NOW, Appellee, the STATE OF TEXAS, by and through its District Attomey, R.N. (Bobby) Bland and Assistant District Attorney Michael Bloch and presents for receipt its Appellate Brief in the above-styled and numbered cause of action. Statement of the Case On April 20, 2010, Johnny Craig Trout, hereinafter Appellant, was indicted for the offense of burglary, alleging that Appellant entered the habitation of Deanna Crouch and did attempt to commit or committed the felony offense of aggravated assault with a deadly weapon, to-wit: a knife. CR 6. Appellant pled not guilty. 4 RR 8. The trial on guilt/innocence was held on November 20,2013, at the conclusion of which the jury found Appellant guilty of the lesser-included offense of burglary of a habitation with intent to commit assault. 4 RR 139-140. The jury assessed punishment at confinement for five years, but recommended that the sentence be suspended and Appellant be placed on community supervision. 5 RR 31-32. The trial court sentenced Appellant to five years TDCJ, but suspended the sentence and placed Appellant on community supervision for ten years. 6 RR 4-5. As a condition of community supervision, Appellant was ordered to serve 180 days in the Ector County Jail. Id. The State now responds to Appellant's appeal of this conviction. Statement of Facts On the date ofsubject incident, January 11, 2010, Deanna Crouch lived at 2324 North Canyon Avenue in Ector County, Texas. 4 RR 13. On that day, Brenda Burk, whom Crouch described as an "acquaintance" arrived at the residence with her, Burk's, son Dustin Burk, who had come to do his laundry. Id. at 14-15, 41. Some of Crouch's relatives showed up at the residence shortly thereafter, and after having a conversation with Burk, Crouch told Burk she needed to leave "[bjecause I was going to be baby sitting, and I didn't want the ruckus at my house." Id. at 15. Suddenly, Crouch heard a noise at the door leading to the carport, she looked through the window and saw someone bending down. Id. at 16. She reached to go and lock the dead bolt, "and the next thing I know the door pops open." Id. at 16. Appellant - who Burk identified at trial as her live-in boyfriend - came charging through the door, knocking Crouch down and yelling and screaming "I'm going to kill" and "Give me my keys, bitch." Id. Crouch testified that Appellant did not have permission to enter her house. Id. at 24. Crouch saw Appellant with a big butcher knife in one hand and a pocketknife in the other, and ordered her daughter-in-law to take the baby away.1 4 RR 16,19. Her daughter-in-law hid in a closet and called 911. Id. at 27. Appellant came at Burk with a knife shouting "I'm going to kill you, bitch." Id. at 42. Burk called for her son Dustin. Id. Dustin had been sitting in the kitchen; he heard the commotion and came out of the kitchen 1There was some disagreement among the witnesses as to what type or how many knives Appellant had. Crouch's daughter-in-law did not see a knife. 4 RR 32. Dustin observed only one knife. 4 RR 39. Burk observed a long knife, "almost machete size." 4 RR 52. and began fighting and wrestling with Appellant. Id. at 17, 35. Burk fled to the carport. Id. at 42. As the two men fought, Dustin pushed Appellant out the door and into the carport. Id. at 17,43. Seeing Burk out there, Appellant came running at her again, but was foiled when Dustin threw a crate at him. Id. at 43. Appellant then abandoned the encounter and went down the alleyway where Crouch kept a number of storerooms. Id. at 17, 35. Appellant started coming back from the storerooms2 when the Ector County Sheriffs Office arrived and apprehended him. Id. at 36. Police did not find Appellant with any knives; however, Crouch's son later found a knife among the storage units. Id. at 61-62. He called the Sheriffs Deputies, who returned and retrieved theknife.3 Id. at 62. Appellant testified at trial that he did indeed force his way into Crouch's home, although he denied having had a weapon. 4 RR 100. The jury convicted Appellant of the lesser-included offense of burglary of a habitation with intent to commit assault. 2Although stating that Appellant attacked Burk with the knife "twice," Burk seemed to testify that Appellant came at her with a knife a third time after he came back from the storage sheds, and states that Dustin was inside at the time. It appears in that case that Sheriffs Deputies separated them. 4 KK 53. 3The knife was logged into evidence, but there was apparently a plea to another matter which resulted in the knife being destroyed. 4 RR 70-71. Fingerprints were also not taken. 4 RR 75. Summary of the Argument The evidence was legally sufficient to sustain the jury's finding that Appellant was guilty of the charged offense. Several State's witnesses testified that Appellant forced his way into a residence that he had no permission to enter, and assaulted some of the occupants. The jury assessed the credibility of the State's witnesses and Appellant and, based upon those assessments, adjudged Appellant guilty of burglary of a habitation with the intent to commit assault. Appellant failed to preserve error in connection with his complaint about not receiving a list of grand jury witnesses, and in any event he does not make the requisite showings necessary to obtain relief under Brady. With regard to Appellant's complaint that the trial court made a handwritten correction on the verdict form, Appellant has cited no authority in support of his position that this was improper, and fails to cite to the record where his counsel objected to this alleged impropriety. I. The evidence was legally sufficient to sustain the jury's finding that Appellant committed the offense of burglary of a habitation with intent to commit assault Although he does not designate issues or points of error, Appellant seems to argue that the evidence was insufficient to support his conviction. 10 When reviewing a case for legal sufficiency, this Court should view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Winfrey v. State, 323 S.W.3d 875, 878-79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Thus, this Court should "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."' Id. at 879. (quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). "It has been said, quite appropriately, that '[t]he appellate scales are supposed to be weighted in favor of upholding a trial court's judgment of conviction, and this weighting includes, for example, the highly deferential standard of review for legal-sufficiency claims.'" Id. The Court "must therefore determine whether the evidence presented to the jury, viewed in the light most favorable to the verdict, proves beyond a reasonable doubt that appellant" committed the crime for which the jury found him guilty. See id. The appellate court is not required to believe the record evidence, nor to pass on the credibility ofwitnesses. The jury exclusively judges the credibility and weight oftestimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App, 1996). The jury is free to draw reasonable inferences from basic facts 11 to ultimate ones. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). The appellate court's duty is simply to pass on whether a rational trier of fact could have found all of the essential elements beyond a reasonable doubt. Johnson v. State, 803 S.W.2d 272,279 (Tex. Crim. App. 1990). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991); see also Swearingen v. State, 101 S.W.3d 89, 94 (Tex. Crim. App. 2003). In this case, the record is replete with evidence that Appellant committed the offense of burglary with intent to commit assault. Crouch testified that Appellant popped open the door to her residence and knocked her down flat on her back. 4RR16, 20. She further testified that Appellant did not have permission to enter her house. Id. at 24. Dustin Burk testified that upon entering Crouch's home Appellant was "going for my mother." Id. at 35. Burk also testified that after Appellant forced his way in "he's coming at me and shouting I'm going to kill you, bitch." Id. at 42. She also testified that Appellant "is jumping at me" when Dustin came to her aid. Id. When Burk flees to the carport, Appellant comes at her again, but is foiled when Dustin throws a crate at him. Id. at 43. A victim's testimony is alone sufficient to sustain a conviction for an assaultive offense, even where the 12 victim's memory was not perfect and her statements not always completely consistent. See Padilla v. State, 254 S.W.3d 585, 590 (Tex.App.~Eastland 2008, pet. refd). This Court should not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of the witnesses, as this was the function ofthe trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Here, the jury assessed the credibility of the State's witnesses and Appellant and, based upon those assessments, adjudged Appellant guilty of burglary with the intent to commit assault. This Court should defer to that finding. Appellant's sufficiency of the evidence claim should be overruled. Appellant also seems to complain that the State did not provide him with information regarding the identity ofwitnesses who testified before the grand jury. The trial court's discovery order did require the State to disclose that information. CR 11. However, there does not appear in the record any objection or complaint from Appellant's counsel that this information was not provided. Hence, error has not been preserved. Tex. R. App. Proc. 33.1 (a)(1)(A). Moreover, under its present incarnation, to succeed in showing a Brady violation4, an individual must show that(1)the evidence is favorable to the accused because it is exculpatory or impeaching; (2) the evidence was 4Appellant does not mention Brady or exculpatory evidence in his brief. However, the State thinks this may be what he is trying to argue. 13 suppressed by the government or persons acting on the government's behalf, either inadvertently or willfully; and (3) the suppression of the evidence resulted in prejudice (i.e., materiality). Ex parte Reed, 271 S.W.3d 698, 726- 727 (Tex. Crim. App. 2008). Appellanthas not made these showings. This poinfof error shoujkibe overruled. Appellant also seems to complain ofthe trial court's handwritten jiotatipns on the verdict form; specifically, adding "with intent to commit assault" to the burglary of a habitation charge. Clearly it was a typographical error to omit that phrase, and the trial court (presumably it was the trial court) corrected it. First, Appellant has cited no authority in support of his position that this was improper, and thus has waived that argument. Tex. R. App. P. 38.1(i); see also Knight v. State, 406 S.W.3d 578, 590 (Tex. App. ~ Eastland 2013, pet. ref d). Second, Appellant's counsel did not object to this alleged impropriety and hence waived any such complaint. See Tex. R. App. Proc. 33.1 (a)(1)(A). This issue should also be overruled. Conclusion and Prayer The State of Texas prays this court overrule Appellant's points of error and affirm Appellant's conviction. 14 Respectfully Submitted, Michael Bloch Ector County District Attorney's Office BY: /s/ Michael Bloch Michael Bloch Assistant District Attorney SBN 24009906 blochmj@co.ector.tx.us Ector County Courthouse 300 N. Grant, Room 305 Odessa, Texas 79761 (432) 498-4230 Phone (432) 498-4293 Fax Certificate of Service I certify that on this 5th day of September, 2014, a copy of the foregoing State's Appellate Brief was mailed to /s/ Michael Bloch Michael Bloch Certificate of Compliance I certify that the foregoing brief consists of 2,355 words and is typed in 14-point Times New Roman Font. 15 CAUSE NUMBER ll-X3-0Oa77-CR ELEVENTH DISTRICT OF TEXAS On appeal from the 70th Judicial District Court of Ector County, Texas Trial Court Cause Number A-37,204 STATE'S MOTION REQUESTING THAT THIS COURT ORDER APPELLANT TO REDRAW HIS APPELLATE BRIEF TO THE HONORABLE COURT OF APPEALS: COMES NOW APPELLEE, THE STATE OF TEXAS, by and through Assistant Ector County District Attorney Michael Bloch, and files this its motion requesting that this Court order Appellant to redraw his appellate brief, and in support thereof, would respectfully show this Honorable Court as follows: Paget I. ***** filed his btiefin mcase m^ 12> 20M ^ ^ brfefjs due June 26, 2014. JJ. The State fully acknowledge, TeX. R. App. P. 38.9. which provides that briefing rules a* to be construedliberally. In«. ^ however> ^ ^ fc ^ bnefdoes notin anywaywhafcoevercompiywitr^^^; Appearingin the briefa* statements identifyingAppellant's .nother, Karen ,„y best ofthe State's knowJedge, is notan attorneyatal.. The briefdoes not ma mannertha, wouidallow the State to undenrtand the basis ofthis appeal. I, -eludes severa, documents that are not in the appellaterecord. And, inthe State'; opinion, some ofit is unintelligible. Page 2 m. Because of these defects, the State is not sure how it can appropriately respond to Appellant's brief. The State prays that this Court order Appellant to redraw his brief pursuant to Rule 38.9 (a) and/orXb). Respectfully Submitted, Michael Bloch Assistant District Attorney Ector CountyDistrictAttorney's Office Ector County Courthouse 300 N.Grant, Room 305 Odessa* Texas 79761 (432) 498-4230 Phone (432) 498-4293 Fax blochmj@co.ector.tx.us Attorney for the State of Texas By: /s/ MichaelBloch Michael Bloch State Bar No. 24009906 Assistant District Attorney Pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure, I certify that on this 30* day of May, 2014, a copy of the foregoing motion was mailed to Johnny Craig Trout, P.O. Box 1793, Quinlan, Texas 75474. Page 3 /s/Michael Bloch Michael Bloch Assistant District Attorney CERTD7ICATE OF COMPLIANCE point Times New Roman font. /s/ Michael Bloch Michael Bloch Assistant District Attomey Page 4 SM T^/^-eV r M--t:kX ue,$^Ndftfl/i~ \]ohm'CfO'J /rout /? Appealed to the Court of Appeals VI tf> Ul - > CD CO S TJ o> •* X h- From the ran Court O O co~ >» CO CM CO (A CO of Ector County c to CO c n X ^^, O) TJ Applied for by Johnny Carrasco , Attorney o o () ffi CO m for Appellant on the 19 day of q o o> o CO a! December 20 13 , and delivered to the Court of N- o E o o CM Appeals for the 11th District of Texas at Eastland, Texas on the z CO. §. 21 day of March 2Q14 . *** CO c S Janis Morgan District _ Clerk, •o O 70th CO . Court, Ector County Texas. m z o By /s/ Eva B Franco . Deputy z o •e CO 0) Appellant CourtCauseNo. 11-13-00377-CR a o tr; Filed in Court of Criminal Appeals, at. Texas, the day of .20 Clerk, Court of Criminal Appeals, By. INDEX PAGE 1 CAUSE NO. A-37,204 The State Of Texas * IN THE DISTRICT COURT * Vs. * ECTOR COUNTY, TEXAS Johnny Craig Trout * 70th DISTRICT COURT INDEX Front Cover 1 Index 2 Caption 5 Indictment, Filed April 20, 2010 6 Precept, Filed April 26, 2010 7 Waiver Of Arraignment, Filed May 4,2010 8 First Pre -Trial Orders, Filed May 4,2010 9 Bond, Filed May 14, 2010 14 Open File Policy Letter, Filed July 6,2010 16 Motion to Substitute Counsel, Filed July 28,2010 17 Order For Motion To Substitute Counsel, Filed August 5, 2010 ..19 Open File Policy Letter, Filed September 3,2010 20 Motion For Continuance, Filed January 31, 2011 21 Order Granting Defendant's Motion For Continuance, Filed January 31, 2011 23 Motion For Continuance, Filed April 1, 2011 24 Order Granting Defendant's Motion For Continuance, Filed April 1,2011 26 Motion For Continuance, Filed May 4, 2011 27 Order Granting Defendant's Motion For Continuance, Filed May 4,2011 29 INDEX PAGE 2 Motion For Continuance, Filed June 8, 2011 30 Order Granting Defendant's Motion For Continuance, Filed June 8, 2011 32 Order Resetting Jury Trial, Filed October 7, 2011 33 Order Resetting Jury Trial, Filed May 22, 2013 34 Order Resetting Jury Trial, Filed June 6, 2013 35 Order Resetting Jury Trial, Filed August 5, 2013 36 Motion For Continuance, Filed August 8, 2013 37 Order Granting Defendant's Motion For Continuance, Filed August 20, 2013 39 Order Resetting Jury Trial, Filed October 22,2013 41 Order On State's Motion In Limine, Filed November 20, 2013 42 State's Motion In Limine, Filed November 20, 2013 44 Request For Sentencing By Jury, Filed November 20, 2013 47 Application For Probation, Filed November 20,2013 48 Chosen Jury List, Filed November 20,2013 49 Defendant's Strike List, Filed November 20,2013 50 State's Strike List, Filed November 20, 2013 ..51 Charge Of The Court, Filed November 20, 2013 52 Verdict, Filed November 20, 2013 .SJ_ Charge of The Court, Filed November 20,2013 58 Verdict, Filed November 20, 2013 ..63 Judgment of Conviction By Jury, Filed November 20, 2013 64 Order Of The Court Granting Community Supervision, Filed November 20, 2013 66 Order Transferring Prisoner, Filed November 25, 2013 71 INDEX PAGE 3 Nunc Pro Tunc Judgment Of Conviction By Jury, Filed December 18, 2013 72 Order, Filed December 18, 2013 74 Notice Of Appeal- Pro Se Filing December 19, 2013 75 Docketing Certificate 76 Affidavit Of Indigency, Filed December 20, 2013 78 Trial Court Certificate Of Defendant's Right Of Appeal, Filed January 3,2014 81 Request For Extension Of Time 82 Court's Docket Sheet 83 Clerk's Certification 85 Back Cover 86 JIM R. WRIGHT CHIEF JUSTICE Court of Appeals SHERRY WILLIAMSON CLERK Eleventh District of Texas TELE: 254/629-2638 MIKEWILLSON JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 P.O. BOX 271 sherry.williamson@txcourts.gov JOHN M. BAILEY JUSTICE EASTLAND, TEXAS 76448 vvww.l lthcoa.courts.state.tx.us December 19,2013 R. N. (Bobby) Bland, District Attorney Johnny Craig Trout Ector County District Attorney's Office #4452,1 300 N.. Grant, Room 305 Ector County Jail Odessa, TX 79761 PO Box 331 Odessa. TX 79761 RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas We have this day received and filed a copy of the Notice of Appeal and the Trial Court Information Form from the trial court clerk in the above cause. Pro se Appellant is requested to forward a docketing statement to our office on or before January 3, 2014. See Tex. R. App .P. 32. A copy ofthe docketing statement is enclosed. The Clerk's Record and Reporter's Record are now due for filing in the Court on or before January 20, 2014. There is a new Request for Extension form on the Court's website, revised 4/2013. Please start using this form immediately. A Certification of the Defendant's Right of Appeal did not accompany the Notice of Appeal. Pursuant to the January 1, 2003, amendments of the Texas Rules of Appellate Procedure, please note that the record must include the trial court's Certification of the Defendant's Right of Appeal. This appeal may be subject to dismissal if the certification is not included in a Clerk's Record or Supplemental Clerk's Record. Tex. R. App. P. 25.2. The trial court clerk is directed to fax the Certification of Defendant's Right of Appeal on or before January 3, 2014 and ensure that the certification is included with the Notice of Appeal in the Clerk's Record. NOTICE: Effective January 1, 2014, e-filing will be mandatory in the Eleventh Court of Appeals. Respectfully yours, Sherry Williamson, Clerk By: Cheryl Busk, Deputy cc: Tina Gregg, Court Reporter X- Denn Whalen, Judge District Clerk - Ector County v* JIM R.WRIGHT CIIIEFJUSTICE Court of Appeals SHERRY WILLIAMSON CLERK Eleventh District of Texas TELE: 254/629-2638 MIKE WILLS0N JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 P.O. BOX 271 sherry.williamson@txcourts.gov JOHN M. BAILEY www.llthcoa.courts.statc.tx.us JUSTICE EASTLAND, TEXAS 76448 January 1.0,2014 R. N. (Bobby) Bland, District Attorney Johnny Craig Trout Ector County District Attorney's Office #44521 300 N. Grant, Room 305 Ector County Jail Odessa, TX 79761 PO Box 331 Odessa, TX 79761 RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas We have this day received and filed the docketing statement and the trial court's Certification of Defendant's Right of Appeal from Pro se Appellant in the above cause. We note the Clerk's Record and Reporter's Record are due for filing in the Court on or before January 20, 2014. There is a new Request for Extension form on the Court's website, revised 4/2013. Please start using this form immediately. NOTICE: Effective January 1, 2014, e-filing is mandatory in the Eleventh Court of Appeals. The email address of an attorney or unrepresented party who electronically files a document must be included on the front cover of the document and on the signature page. By: Cheryl Busk, Deputy cc: Tina Gregg, Court Reporter Denn Whalen, Judge District Clerk - Ector County JIM R. WRIGHT CHIEF JUSTICE Court of Appeals SHERRY WILLIAMSON CLERK MIKE WILLSON Eleventh District of Texas TELE: 254/629-2638 JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 P. O. BOX 271 sherry.williamson@txcourts.gov JOHN M. BAILEY JUSTICE www.l 1 thcoa.courts.state.tx.us EASTLAND.-TEXAS 76448 January 31, 2014 Tina Gregg, Court Reporter District Clerk - Ector County Horizon Reporters Janis Morgan P.O. Box 4475 301 Courthouse Odessa, TX 79760 3 00 North Grant Avenue 0^e5slTTir7976T~ RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas Upon reviewing the file in the above cause, the Clerk's Record and Reporter's Record were originally due to be filed on January 20. 2014. The Court deems the failure to file a request for extension of time and the inordinate delay in filing the record to be a serious matter. On the Court's own motion, the Court directs the District Clerk and the Court Reporter to file the records in this cause on or before February 17, 2014. At that time, the records must be electronically filed through the TAMES Records Submission Portal for the Eleventh Court of Appeals. NOTICE: Effective January 1,2014, e-filing is mandatory in the Eleventh Court of Appeals. Documents MUST contain an email address. cc: R. N. (Bobby) Bland, District Attorney Denn Whalen, Judge Johnny Craig Trout JIc^u^EIGHT COUrt Of Appeals sherry Williamson mikewillson Eleventh District of Texas .tele:254/629-2638 Jl,ST'CE 100WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 JOHN M. BAILEY P.O. BOX 271 sherry.williamson@txcourts.gov justice EASTLAND, TEXAS76448 www.llthcoa.courts.state.tx.us February 6, 2014 Johnny Craig Trout #44521 Ector County Jail PO Box 331 Odessa, TX 79761 RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas Upon reviewing the file in the above cause, please note that the record was due for filing in this Court on February 17, 2014. The District Clerk and Court Reporter have notified us that Appellant has not paid for the Clerk's Record or Reporter's Record, nor filed a Designation of Clerk's Record or Reporter's Record. Since Judge Whalen signed an order on December 18, 2013 finding Appellant not indigent, Appellant is responsible for payment of the records. The payments and designations are due for filing with the District Clerk and Court Reporter with proof received in this Court by February 17, 2014. Otherwise, this appeal may be dismissed. Tex. R. App. P. 37.3(b). If the above requirements are met by February 17, 2014, the Clerk's Record and Reporter's Record will be due for filing on or before March 19,2014. NOTICE: Effective January 1, 2014, e-filing is mandatory in the Eleventh Court of Appeals. Documents MUST contain an email address. cc: R. N. (Bobby) Bland, District Attorney (DELIVERED VIA E-MAIL) Tina Gregg, Court Reporter (DELIVERED VIA E-MAIL) Derm Whalen, Judge (DELIVERED VIA E-MAIL) District Clerk - Ector County (DELIVERED VIA E-MAIL) JIM R. WRIGHT CHIEF JUSTICE Court of Appeals SHERRY WILLIAMSON CLERK Eleventh District of Texas TELE: 254/629-2638 MIKEWILLSON JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 P.O. BOX271 sherry.williamson@txcourts.gov JOHN M. BAILEY www.l 1 thcoa.courts.state.tx.us JUSTICE EASTLAND, TEXAS 76448 March 21, 2014 R. N. (Bobby) Bland, District Attorney Johnny Craig Trout Ector County District Attorney's Office #44521 300 N. Grant, Room 305 Lynn County Jail Odessa, TX 79761 P.O. Box 277 * DELIVERED VIA E-MAIL * Tahoka, TX 79373 RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas We have this day received and filed the Clerk's Record (1 volume) in the above cause. We note the Reporter's Record was due for filing in this Court March 19,2014. NOTICE: Effective January 1, 2014, e-filing is mandatory in the Eleventh Court of Appeals. Documents MUST contain an email address. cc: Tina Gregg, Court Reporter (DELIVERED VIA E-MAIL) Denn Whalen, Judge (DELIVERED VIA E-MAIL) District Clerk - Ector County (DELIVERED VIA E-MAIL) JIM R. WRIGHT CHIEF JUSTICE Court of Appeals SHERRY WILLIAMSON CLERK Eleventh District of Texas TELE: 254/629-2638 MIKEWILLSON JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 P.O. BOX 271 sherry.williainson@txcourts.gov JOHN M. BAILEY www.l lthcoa.courts.state.tx.us JUSTICE EASTLAND, TEXAS 76448 April 15, 2014 R. N. (Bobby) Bland, District Attorney Johnny Craig Trout Ector County District Attorney's Office #44521 300 N. Grant, Room 305 Ector County Law Enforcement Center Odessa, TX 79761 P.O. Box 331 * DELIVERED VIA E-MAIL * Odessa, TX 79760 RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas We have this day received and filed Reporter's Record (6 volumes) in the above cause. Appellant's brief is now due for filing in this Courton or before May 15, 2014. NOTICE: Effective January 1, 2014, e-filing* is mandatory in the Eleventh Court of Appeals. Documents MUST contain an email address. cc: Tina Gregg, Court Reporter (DELIVERED VIA E-MAIL) Denn Whalen, Judge (DELIVERED VIA E-MAIL) JIM R. WRIGHT CHIEF JUSTICE Court of Appeals SHERRY WILLIAMSON CLERK Eleventh District of Texas TELE: 254/629-2638 MIKE WILLSON JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 P.O. BOX 271 sherry.williamson@txcourts.gov JOHN M. BAILEY www.llthcoa.courts.state.tx.us JUSTICE EASTLAND, TEXAS 76448 May 12, 2014 Johnny Craig Trout #44521 Ector County Law Enforcement Center P.O. Box 331 Odessa, TX 79760 RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas The Court has this day received correspondence from you in the above cause. ^TKAAA*-j- Sherry Williamson, Clerk By: Johanna Blair, Deputy cc: R. N. (Bobby) Bland, District Attorney (DELIVERED VIA E-MAIL) JIM R.WRIGHT CHIEKJUST1CE Court of Appeals SHERRY WILLIAMSON CLERK Eleventh District of Texas TELE: 254/629-2638 MIKE WILLSON JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 P.O. BOX 271 sherry.williamson@txcourts.gov JOHN M. BAILEY www.llthcoa.courts.state.tx.us JUSTICE EASTLAND, TEXAS 76448 May 27, 2014 R. N. (Bobby) Bland, District Attorney Johnny Craig Trout Ector County District Attorney's Office PO Box 1793 300 N. Grant, Room 305 Quinlan, TX 75474 Odessa, TX 79761 * DELIVERED VIA E-MAIL * RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas We have this day received and filed a letter from Johnny Craig Trout stating papers received on May 12, 2014 were intended to be Appellant's pro se brief. Appellant's pro se brief is now filed as of May 12, 2014. State's brief is now due for filing on or before June 26, 2014. NOTICE: Effective January 1, 2014, e-filing is mandatory in the Eleventh Court of Appeals. Documents MUST contain an email address. By: Cheryl Busk, Deputy JIM R. WRIGHT CHIEF JUSTICE Court of Appeals SHERRY WILLIAMSON CLERK Eleventh District of Texas TELE: 254/629-2638 MIKE WILLSON JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 P.O. BOX 271 sherry.williamson@txcourts.gov JOHN M. BAILEY www.llthcoa.courts.state.tx.us JUSTICE EASTLAND, TEXAS 76448 August 14, 2014 R. N. (Bobby) Bland, District Attorney Michael Bloch, Assistant Ector County District Attorney's Office Ector County District Attorney's Office 300 N. Grant, Room 305 300 N. Grant, Room 305 Odessa, TX 79761 Odessa, TX 79761 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * Johnny Craig Trout PO Box 1793 Quinlan, TX 75474 RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas The Court has this day OVERRULED State's motion to strike Appellant's brief in the above cause. It is noted State's brief is due for filing in the Court on or before September 5, 2014. NOTICE: Effective January 1, 2014, e-filing is mandatory in the Eleventh Court of Appeals. Documents MUST contain an email address. Respectfully yours, Sherry Williamson, Clerk JIM R. WRIGHT CHIEF JUSTICE Court of Appeals SHERRY WILLIAMSON CLERK Eleventh District of Texas TELE: 254/629-2638 MIKE WILLS0N JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 P.O. BOX 271 sherry.williamson@txcourts.gov JOHN M. BAILEY www.llthcoa.courts.state.tx.us JUSTICE EASTLAND, TEXAS 76448 September 5, 2014 R. N. (Bobby) Bland, District Attorney Michael Bloch, Assistant Ector County District Attorney's Office Ector County District Attorney's Office 300 N. Grant, Room 305 300 N. Grant, Room 305 Odessa, TX 79761 Odessa, TX 79761 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas State's brief has this day been received and filed in the above cause. You will be advised when this case is set for submission. NOTICE: Effective January 1, 2014, e-filing is mandatory in the Eleventh Court of Appeals. Documents MUST contain an email address. By: Myrna McGough, Deputy JIM R. WRIGHT CHIEF JUSTICE Court of Appeals SHERRY WILLIAMSON CLERK MIKE WILLSON Eleventh District of Texas TELE: 254/629-2638 JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 P.O. BOX 271 sherry.williamson@txcourts.gov JOHN M. BAILEY JUSTICE EASTLAND, TEXAS 76448 www.txcourts.gov/1 lthcoa July 27, 2015 R. N. (Bobby) Bland, District Attorney Michael Bloch, Assistant Ector County District Attorney's Office Ector County District Attorney's Office 300 N. Grant, Room 305 300 N. Grant, Room 305 Odessa, TX 79761 Odessa, TX 79761 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas The above cause has been set for submission on briefs in the Court of Appeals for the Eleventh District of Texas on August 20, 2015. You will be advised when an opinion is handed down. The panel assigned to this case will be Chief Justice Wright, Justice Willson, and Justice Bailey. This panel is subject to change by the Court. Sherry Williamson, Clerk JIM R. WRIGHT CHIEF JUSTICE Court of Appeals SHERRY WILLIAMSON . .CLERK Eleventh District of Texas TELE: 254/629-2638 MIKE WILLSON JUSTICE 100 WEST MAIN STREET, SUITE 300 FAX: 254/629-2191 P.O. BOX271 sherry.williamson@txcourts.gov JOHN M. BAILEY www.txcourts.gov/1 lthcoa JUSTICE EASTLAND, TEXAS 76448 August 28, 2015 R. N. (Bobby) Bland, District Attorney Michael Bloch, Assistant Ector County District Attorney's Office Ector County District Attorney's Office 300 N. Grant, Room 305 300 N. Grant, Room 305 Odessa, TX 79761 Odessa, TX 79761 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * RE: Appellate Case Number: 11-13-00377-CR Trial Court Case Number: A-37,204 Style: Johnny Craig Trout v. The State of Texas The Court has this day AFFIRMED thejudgment of thetrial court in the above cause. Copies of the Court's opinion and judgment are attached. Appellant is advised that a Petition for Discretionary Review may be filed with the Clerk, Court of Criminal Appeals. Austin. Texas. No copy is required for the Eleventh Court of Appeals. cc: Dean Rucker, Administrative Judge (DELIVERED VIA E-MAIL) Denn Whalen, Judge (DELIVERED VIA E-MAIL) District Clerk - Ector County (DELIVERED VIA E-MAIL) 1 lTH COURT OF APPEALS EASTLAND, TEXAS JUDGMENT Johnny Craig Trout, * From the 70th District Court of Ector County, Trial Court No. A-37,204. Vs. No. 11-13-00377-CR * August 28, 2015 The State of Texas, * Memorandum Opinion by Willson, J. (Panel consists of: Wright, C.J., Willson, J., and Bailey, J.) This court has inspected the record in this cause and concludes that there is no error in the judgment below. Therefore, in accordance with this court's opinion, the judgment ofthe trial court is in all things affirmed. The State of Texas In The 70th District • * v. Court JOHNNY CRAIG TROUT ECTOR County, Texas State ID No.: TX02801787 NUNC FRO TUNC JUDGMENT OF CONVICTION BY JURY VU&tUSU&F7f?" Judge Presiding: Hon. DENN WHALEN Date Judgment Entered: 11/21/2013 Attorney for Attorney for State: AMANDA NAVARETTE «JEFF ROBNETT Defendant: Offense for which Defendant Convicted: LESSER INCLUDED OFFENSE OF BURGLARY OF A HABITATION WITH INTBNT ff@ COMMIT ASSAULT T-i ww Oharflw Tnstrument: Statute for Offense: .O'CfOCK INDICTMENT 30.02 Penal Code Date ofOffense: mi/2010 DEC 1 i 2013 Degree of Offense: PfeaJoOffengei 2ND DEGREE FELONY NOT GUn/FY gstrirt qerH-foftw C^imtv/axas Verdict ofJury: Findings on Deadly Weapon: GUILTY N/A 8V Plea to 1st Enhancement Plea to 2nd Enhancement/Habitual Paragraph: N/A Paragraph: N/A Findings on 1st Enhancement Findings on Z"4 Paragraph: N/A Enhancement/Habitual Paragraph: N/A Punished Assessed by: Dh^aRftntPnce Imposed: Date Sentence to Commence: JURY 11/21/2013 11/21/2013 Punishment and Place of Confinement: FIVE (5) YEARS INSTITUTIONAL DIVISION, TDCJ THIS SENTENCE SHALL RUN CONCURRENTLY. [Xj SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR TEN (10) YEARS. Fine: Court Costa: Restitution: Restitution Payable to: $ 5,000.00 $ 264.00 $0 D VICTIM (see below) D AGENCY/AGENT (see below) 1 I Attachment A, Order to Withdraw Funds, is incorporated into ftfo judgment and wade apart hereof. Sox Offender Registration Requirements do not apply to the Defendant. TEX. Code Ckim.Pkoc. chapter62. The age ofthe victim at the time of the offense was N/A . If Defendant wt tomtvti asntence in TDCJT enter imarociTitiiin pcrteds in <:hrunufaj»icnl order. From to From to From to Time Prom to From to From to Credited: If Defendant fa to scrta? janrtcnt*in mmity fafl or is give« credit toward fine and costs, litter days credited tehiw. _ _JADAYS NOmN/A _ _____ All pertinent information, names and assessments Indicated above are incorporated into the language ofthe judgment bah— by reference. This cause was called for trial in Ector County, Texas. The State appeared by her District Attorney. Counsel / Waiver of Counsel {select one) __. Defendant appeared in person with Counsel. LJ Defendant knowingly, intelligently, andvoluntarily waived the rightto representation by counsel in writingin opencourt. It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging instrument Both parties announced ready for trial Ajnry was selected, impaneled, and sworn. The INDICTMENT was read to the jury, and Defendant entered a plaa to the charged offense. The Court received the plea and entered it of record. TROUT, JOHNNY JUC fage 1 of 2 72 xne uourt received the verdict and ORDERED it entered upon the minutes of the Court. .,, P^^awntAssessed bv Jury/ Court/ No election feelect one) &3 Jury. De^ndantentered aplea and filed awritten electionto have the jury assess pronshment The jury heard evidence relative to ttoquestron ^punishment. The Court chargedthejury and itretired to conader the o^estion ofpunishment After due deliberation the jury was broughtinto Court,and, in open court,it returned its verdictas indicatedabove. • Court Defendant elected to have the Court assess punishment. After hearing evidence relative to the o^iesticn ofpunishment the Court assessed Defendant's punishment as indicated above. —» ««= DNo Election. Dafeialant did notfife a written elections ewidencerelaftve tothequestion ofpunmhment, theCourt assessed Defendants punislnnent asindk^ ^^ o»rr» nJ"? P"? Fm°S Defenda^OTJ[Btoitted the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is GUILTY ofaeabove offense. The Court Finds the Presentence Investigation, if so ordered, was done according to theapplicable provisions ofTEX Code Cmm. Ph0C. art 42.12 §9. ««-«»» The CourtOBDERS Defendant punished as indicated above. The CourtOrders Defendant topay all fines, court costs, and restitution as indicated above. —. «•«•» p""infr»TMlt Potions feelect one) g Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent ofthe State ofTexas or the Sheriffofthis County to take, safer/ convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court OBDEaa Defendant to be confined for theperiod and in the manner indicated above. The Court ORDERS Defendant remanded tothe custody ofthe Sheriffofthis county until the Sheriffcan obey the directions ofthis sentence. The Court Orders that upon release from confinement Defendant proceed immediately to the ECTOR COUNTY COMPLIANCE DEPARTMENT. Once there, the Court OrdersDefendant topay, or mate arrangements topay, any remaining unpaid fines, court costs, and restitution asordered bvthe Court above. J D County JaU—Confinement /Confinement in Lien ofPayment The Court ORDHBSDefend^tiinmedmtelycommitted to thecustody ofthe SheriffofEctorCounty, Texas onthe date tlm sentence fe tocommenoe. Defendant shan beconfined in theEc^^^ County Jail for the period indicated above. The Court Orders that upon release from confinement Defendant shall proceed immediately to the ECTOR COUNTY COMPLIANCE DEPARTMENT. Once there, the Court Orders Defendant to pay, or mate arrangements to pay,anyremaining unpaidfines, court costs, andrestitutionas ordered by the Courtabove. U Fine Only Payment The punishment assessed against Defendantis&r aFINE ONLY. The Court Orders Defendant to proceed immediately to the Office ofthe Ector County . Once there, the Court ORDERS Defendant to pay or make arrangements to pay all fines and court costs as ordered by the Court in this cause. _ Execution /Suspension ofSentence fselect one) LJ The Court ORDERSDefendants sentence EXECUTED. __3 The Court ORDERS Defendants sentence ofconfinement SXfflPENDED. The Court ORDERS Defendant placed on community supervision for the adjudged period (above) bo long asDefendant abides byanddoes notviolate the termsandconditions of community stroervision. The order setting forth theterms and conditions ofcommunity suj>ervision is incorporated into this judgment by reference. The Court Orders thatDefendant is given credit noted above onthissentence for thetimespent incarcerated. Furthermore, the following special findings or orders apply; DEPENDANT SHALL SERVE 180 DAYS IN THE ECTORCOUNTY JAIL AS A CONDITION OF PROBATIONTO BE SERVED BEGINNING 11/25/13 $50.00 CRIME STOPPERS FEE Signed and entered on November 21,2013 mgNwwffAr.iew JUDGE PRESIDING Clerk:. Right Thumbprint TROUT. JOHNNY JOC Page 2of2 JO § In The 70th District he Stats* of Texas? § § Court § § ECTOR COUNTY, Texas OHNNY CRAIG TROUT § TATE ID NO.: TX02501787 § JUDGMENT OF CONVICTION BY JURY Date Judgment 11/20/2013 idge Presiding: HON. DENN WHALEN Entered: Attorney for JEFF ROBNETT ttomey for State: AMANDA NAVARETTE Defendant: *gS££&5n3£a£^ OF BURGLARY OF AHABITATION WITH INTENT TOCOMMIT Assault - . »- Statute for Offense: Wfcetr lb arcing Instrument 30.02 Penal Code _lL ut*twGVll0Ck~ NDICTMENT latonf Offense: Vll/2010 PIga to Offense: wrwim~ )t>Pfree of Offense: NOT GUILTY »ND DEGREE FELONY VinAinr* on Deadly Weapon: UlSOTCt Cleft JE«t0r C0Unty„TfeX8S TorAir± of Jury: xr/A eOMrSrsi . ,*\ i-—•4r Fine Court Costs: Restitution: $0 ffggBKSS, nAGEHCY/AGEKTagb^ ftnn on $x 264.00 aoi.w v ~ , $ 5,000-00 Sex Offender Registration Requirements do not apply to the Defend Th. aee ofthe victim at thetimo oftbe offense was N/A ;^^^^^^^^^^^^^T^ From to ^ Fn,m to From *> Pmm to From *° ^..„«»» /Waivnr of Counsel (select one) Kl Defendant appeared in person with Counsel. representation by counsel in writing in open court. Page 1of 2 TROUT. JOHNNY JOC The Court received the verdict and ORDERED it entered upon the minutes of the Court. ' Famishment Assessed by Jury / Court / No election (select one) E_3 Jury. Defendant entered a plea and filed a written election to have the jury assess punishment. The jury heard evidence relative to the question of punishment. The Court charged the jury and it retired to consider the question of punishment. After due deliberation, the jury was brought into Court, and, in open court, it returned its verdict as indicated above. O Court Defendant elected to have the Court assess punishment After hearing evidence relative to the question of punishment, the Court assessed Defendant's punishment as indicated above. I~l No Election. Defendant did not file a written election as to whether the judge or jury should assess punishment. After hearing evidence relative to the question of punishment the Court assessed Defendant's punishment as indicated above. The Court FINDS Defendant committed the above offense and ORDERS, ADJUDGES AND DECREES that Defendant is GUILTY of the above offense. The Court FINDS the Presentence Investigation, if so ordered, was done according to the applicable provisions ofTEX. CODE CRIM. PROC. art 42.12 § 9. The Court ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to pay all fines, court costs, and restitution as indicated above. Punishment Options (select one) E3 Confinement in State Jail or Institutional Division. The Court ORDERS the authorized agent ofthe State ofTexas or the Sheriff of this County to take, safely convey, and deliver Defendant to the Director, Institutional Division, TDCJ. The Court ORDERS Defendant to be confined for the period and in the manner indicated above. The Court ORDERS Defendant remanded to the custody of the Sheriffofthis county until the Sheriffcan obey the directions ofthis sentence. The Court ORDERS that upon release from confinement Defendant proceed immediately to the ECTOR COUNTY COMPLIANCE DEPARTMENT. Once there, the Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above. PI County Jail—Confinement / Confinement in Lieu of Payment The Court ORDERSDefendant immediately committed to the custody ofthe Sheriff of Ector County, Texas on the date the sentence is to commence. Defendant shall be confined in the Ector County Jail for the period indicated above. The Court Orders that upon release from confinement Defendant shall proceed immediately to the ECTOR COUNTY COMPLIANCE DEPARTMENT. Once there, the Court Orders Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the Court above. Q Fine Only Payment The punishment assessed against Defendant is for a fine only. The Court Orders Defendant to proceed immediately to the Office of the Ector County . Once there, the Court ORDERS Defendant to pay or make arrangements to pay all fines and court coste as ordered by the Court in this cause. Execution / Suspension of Sentence (select one) ED The Court ORDERSDefendant's sentence executed. _*_ The Court ORDERS Defendants sentence of confinement SUSPENDED. The Court ORDERS Defendant placed on community supervision for the adjudged period (above) so long as Defendant abides by and does not violate the terms and conditions of community supervision. The order setting forth the terms and conditions of community supervision is incorporated into this judgment by reference. The Court ORDERS that Defendant is given credit noted above on this sentence for the time spent incarcerated. Furthermore, the following special findings or orders apply: DEFENDANT SHALL SERVE 180 DAYS IN THE ECTOR COUNTY JAIL AS A CONDITION OF.PROBATION TORE SERVED BEGINNING 11/25/13 Signed and entered on November 20, 2013 DENN l\ forALEN (X a " JUDGE PRESIDING Clerk:\^_V__i_Mai_(_i1A^ TROUT. JOHNNY JOC Page 2 of2 TAe Joy ujas faVcr th^c Q/jf ^^ ^ Xo ,°n^ r°de ]N Coo»+ onJ No^, X , , x oe,^ cix^xxfd^a^p^^s \Jo\unoL s/ [dolun.PL ' *.//ate O'cJcct fl/vnkcjr. //-/?-** 3 77-oe »pp NO. f\ ^>11j>H THE STATE OF TEXAS § IN THE DISTRICT COURT § § § 70th JUDICIAL DISTRICT § § § JOHNNY TROUT ECTOR COUNTY, TEXAS DEFENDANT'S REQUEST FOR SENTENCING BY JURY TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW the undersigned attorney on behalf of DEFENDANT, and files this DEFENDANT'S REQUEST FOR SENTENCING BY JURY, requesting in this Cause Number now pending in this Court, that the JURY impose any sentence in the event of conviction of Defendant. The Law Offices of Jeff Robn^tl FILED / .o'Glock Jef f r eyS^yH //^fcXy^ £ p*?yi / "2- k)yAMsvj X&usv^ cy &% Q^cX&p sy<*&&<6&*y t<=>* 47 Appellate Docket- N. R.N. (Bobby) Bland M. Scott Layh Justin Cunningham District Attorney Maggie Marmolejo Ector County Laura M. Patel 70th, 161st, 244th, 358th Judicial Districts July 6, 2010 Ms. Laura Carpenter 506 N. Sam Houston Odessa, Texas 79761 Re: Cause No. A-37,204 The State of Texas vs. JOHNNY CRAIG TROUT Dear Ms. Carpenter: I have authorityat this time to make an offer of Twelve (12) Yearsin the Texas Department of Criminal Justice, court costs and full restitution, in return for your client's voluntary plea of guilty. Sincerely, Justin Cunningham Deputy District Attorney JC/ld Ajfe.ll«it. Docket Nwb^r \)-W 00"}T7-Cf{ n nET ntpirrr DISTRICT ATTORNEY Room 305, 300 North Grant Linda Deaderick Odessa, Texas 79761 DEPUTY DISTRICTS ATTORNEYS A.C. 432-498-4230 • Fax 432-498-4293 Leonard J. Bruce Lee McClendon R.N. (Bobby) Bland M. Scott Layh Justin Cunningham District Attorney Maggie Marmolejo Ector County Laura M. Patel September 3, 2010 Jeff Robnett Attorney at Law P.O. Box 1583 Midland, TX 79702 RE: Cause No. A-37,204 -The State of Texas vs. JOHNNY CRAIG TRt)UT Dear Counsel: I have authority at this time to make an offer of Twelve (12) Years in the Institutional Division ofthe Texas Department ofCriminal Justice, courtcosts and full restitution. Ifyour client has no other pending criminal charges, either indicted or unindicted JC/kcg Cc f-7-ri igj vv i f v v l Room ?03. MO North Gram a ™k6m_WI -H-g._Hlliy. DIbTmct attorney Odcua, Tckii? 797*1 \d_uH__«k_W&^/ I,tml» relink*. .VC.4,2-49».4:J0-Fax432-4M.42M ^^^^^ deputy districts ATTfMffi t.t't)i\.ir«l J, Hiurr l. April 5,2011 JeffRobnett Law Offices of Jeff Robnett P.O. Box 1583 Midland, Texas 79702 Re: State ofTexas vs. Johnny Craig Trout; Cause No. A-37,204 Dear Mr. Robnett: Mr. Trout is currently set on a trial docket on April 25, 2011. I am willing to offer 10 years confinement in the Institutional Division of the Texas Department of Criminal Justice in return, for a plea of guilty. Mr. Trout has been in jail since last August and hasbeen near the top of ourlast several criminal trial dockets. I would like to see him plea or go to trial as soon as possible. This offer will expire at 5:00 P.M. on Friday, April 15, 2011, and no further offers will be extended. This case should be set to go to trial on either April 25, 2011, or May 9, 2011 (ifit is not reached on April 25). Please feel free to contact me at (432) 498-4230, ext. 4114 or by email at ballnw@co.ector.tx.u$ at your soonest convenience so we may discuss and possibly resolve this case, Nicholas Ball Deputy District Attorney i Rule 23. Nunc Pro Tunc Proceedings in Criminal Cases 23.1. Judgment and Sentence ) Unjgss_lhe trial court has granted a new trial or arrested thP judgment or__uniess the defendant has appealed, a failure to render judgment and pronounce sentence may be correcteor"at_any"time bythe court's doing so. 23.2. Credit on Sentence / When sentence is pronounced, the trial court must give the defendant credit on that sentence for: (a) all time the defendant has been coirfiqed since the time when judgment and sentence should have been entered and pronounced; and (b) all time between the defendant's arrest and confinement to the time when judgment and sentence should have been entered and pronounced. Rule 23. Nunc Pro Tunc Proceedings in Criminal Cases J3.1. Judgment and Sentence; Unless the trial court has granted a new trial or arrested th* judgment nr ijhiess the defendant has appealed, a failure to render judgment and pronounce sentence may be correctecTatany time By the court's doing so. 23.2. Credit on Sentence When sentence is pronounced, the trial court must give the defendant credit on that sentence for: (a) all time the defendant has been conTiqed since the time when judgment and sentence should have been entered and pronounced; and (b) all time between the defendant's arrest and confinement to the time when judgment and sentence should have been entered and pronounced. NO. A-37,204 THE STATE OF TEXAS IN THE DISTRICT COURT VS. OF ECTOR COUNTY, TEXAS JOHNNY CRAIG TROUT 70TH JUDICIAL DISTRICT We, the Jury, find the Defendant, JOHNNY CRAIG TROUT, guilty of the lesser offense of Burglary of a Habitation With Intent to Commit Assault. •F^fe^W^ j.\^>V—Nl"'.'"^"" /I-io~i3 <£^ *f: 2-V- MUJO n'ctOCk NOV 8 0 OT iCtor County Texas 57 NO. A-37,204 VERDICT We, the Jury, having previously found the Defendant, JOHNNY CRAIGJROUT, guilty beyond a reasonable doubt of the offense of Burglary ofa Habitation, as charged in Q-t&^+Jb- the Indictment, assess his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for years. In addition thereto, WE DO / WE DO NOT assess a fine in the amount of $ FOREPERSONI certify that the foregoing Motion consists of 421 words and is typed in 14-
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