                                                                         ACCEPTED
                                                                     03-15-00241-CR
                                                                             7025299
                                                          THIRD COURT OF APPEALS
                                                                     AUSTIN, TEXAS
                                                                9/21/2015 6:27:50 PM
                                                                   JEFFREY D. KYLE
                                                                              CLERK




                       N0. 03-15-00241-CR          FILED IN
                                            3rd COURT OF APPEALS
                                                AUSTIN, TEXAS
                    IN THE COURT OF APPEALS 9/21/2015 6:27:50 PM
                                              JEFFREY D. KYLE
              FOR   THE THIRD DISTRICT OF TEXAS Clerk

                       AT AUSTIN
_______________________________________________________

                    MICHAEL JOHN JAMES,

                          APPELLANT

                             V.

                    THE STATE OF TEXAS,
                         APPELLEE
_______________________________________________________
                        _________

                     APPELLANT’S BRIEF
_______________________________________________________
                        _________

      On Appeal from Cause Number D-I-DC 13-907320
              In the 427TH District Court
                  Travis County, Texas
        Honorable Jim Coronado, Presiding Judge


_______________________________________________________
                       _________

                   LEONARD MARTINEZ
                    Attorney at Law
                State Bar No. 13142750


                              1
                  812 San Antonio Street,Suite 104
                         Austin, Texas 78701
                            (512) 472-0958
                          (512) 472-3054 Fax
                  lmartinezlawoffice2750@gmail.com

                          ATTORNEY FOR APPELLANT

                      ORAL ARGUMENT NOT REQUESTED




                   IDENTITIES OF PARTIES AND COUNSEL

      Pursuant to the provisions of Rule 38.1(a) Texas Rules of Appellate
Procedure, a complete list of names of all parties and counsel are as follows:

Parties:                         Michael John James, Appellant

                                 The State of Texas, Appellee


Attorneys for the Appellant

      Appellate Counsel          Leonard Martinez
                                 Attorney at Law
                                 812 San Antonio, Suite 104
                                 Austin, TX 78701

      Trial Counsel              J. Mark Westenhover
                                 Attorney at Law
                                 404 W. 13th Street
                                 Austin, TX 78701



                                          2
Attorneys for the State   Rosemary Lemberg
                          District Attorney


      Trial Counsel       James Booher
                          Assistant District Attorney
                          Travis County District Attorney’s Office
                          509 W. 11th Street
                          Austin, TX 78701

                          Kelly Gier
                          Assistant District Attorney
                          Travis County District Attorney’s Office
                          509 W. 11th Street
                          Austin, TX 78701




                                   3
 II.     TABLE OF CONTENTS
                                                                                               Page

I.       IDENTITIES OF PARTIES AND COUNSEL......................................... 2

II.      TABLE OF CONTENTS ............................. .............................................4

III.     INDEX OF AUTHORITIES.......................................................................5

IV.      STATEMENT OF THE CASE...................................................................7

V.       ISSUE PRESENTED................................................................................ 8

VI.      STATEMENT OF FACTS.....................................................................          8

VII. SUMMARY OF ARGUMENT................................................................ 13

VIII. ARGUMENT.............................................................................................. 14

      1. ISSUE ONE: Appellant was denied the effective assistance of counsel
         under the Sixth Amendment and a fair trial under the Fourteenth
         Amendment when trial counsel failed to object to a police officer testifying
         as an expert witness on the issue of deadly weapon when the evidence of a
         deadly weapon was otherwise insufficient.

         i.      Introduction

         ii.     Standards for raising ineffective assistance of counsel on direct
                 appeal

         iii.    Standards for effective ineffective assistance of counsel

         iv.     Counsel was ineffective for failing to object to the expert opinion
                 of a police officer on the issue of a vehicle as a deadly weapon.



                                                       4
         v.        Conclusion

IX.      PRAYER..................................................................................................... 23

X.       CERTIFICATE OF SERVICE.................................................................. 24

XI.      CERTIFICATE OF COMPLIANCE ........................................................ 24



III.     INDEX OF AUTHORITIES

CASES                                                                                                      PAGE

Aldrich v. State, 296 S.W 2d 225, 232
(Tex. App. Ft. Worth, 2009, pet. ref.) ............................................................ 18

Andrews v. State, 159 S.W. 3d 98, 101 (Tex. Crim. App. 2005)......................18

Brister v. State, 449 S.W.3d 490 (Tex. Crim. App. 2014) ............................... 22

Ex parte McFarland 163 S.W.3d 743, 753-754
(Tex. Crim. App. 2005) ................................................................................... 20

Ex parte McKithan, 838 S.W.2d 560, 561 (Tex. Crim. App. 1992) ............... 22

Fuller v. State, 224 S.W.3d 823 (Tex. App. Texarkana 2007) .........................18

Jackson v. Virginia,443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979)................................................................................................................. 22

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) .........................22

McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996) .................20


                                                              5
Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) ....................20,21

Owens v. State, 916 S.W. 2d 713, 717-719 (Tex. App. Waco 1996) .................19

Ramirez v. State, 987 S.W. 2d 938, 943-947 (Tex. App. -Austin 2001) ............21

Ray v. State, 880 S.W.2d 795, 796
(Tex. App. Houston [1st Dist.] 1994, no. pet.).....................................................22

Roberts v. State, 766 S.W.2d 578 (Tex. App. Austin 1989, no pet.)................... 22

Rylander v. State, 101 S.W.3d 107, 110-111 (Tex. Crim. App. 2003) ................18

Strickland v. Washington, 466 U.S. 668 (1984) .............................................. 20,21

Thompson v. State, 9 S.W.3d 808, 813-814 (Tex. Crim. App. 1999) ..................17

Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App.1995) ............................... 22

Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim. App. 1992) ...................18

Walker v. State,897 S.W.2d 812, 814 (Tex. Crim. App. 1995) ........................... 22

CONSTITUTIONS

U.S. Const. Amend VI......................................................................................... 14

U.S. Const. Amend XIV .......................................................................................14


STATUTES

Tex. Pen. Code § 1.07(a)(17)(B) ........................................................................22



                                                        6
Tex. Pen. Code §§ 22.02(a)(2), 22.02(b) .................................................. ....7, 17

Tex. Pen. Code §§ 22.07(a)(2), 22.07(b) ...........................................................17


RULES

Tex. R. App. Pro. 38 .............................................................................................. 7

Tex. Rule Evid. 701......................................................................................... 17,21

Tex. Rule Evid. 702 ........................................................................................ 15,21

Tex. Rule Evid. 705 .......................................................................................... 15,21


TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:

         NOW COMES Michael John James, Appellant in this cause, by and through

his attorney of record, Leonard Martinez, and pursuant to the provisions of Tex. R.

App. Pro. 38, et seq., files this brief on appeal.


IV.      STATEMENT OF THE CASE

         The Appellant was charged with Aggravated Assault with a deadly weapon

Tex. Pen. Code § 22.02(a)(2). (CR 4-5).                        The Appellant entered a plea of not

guilty. (CR 36). The Appellant waived jury and was tried by the Court. (4 RR 5).

The Appellant was found guilty of Aggravated Assault with a deadly weapon (4



                                                          7
RR 102). The Appellant was sentenced by the Court to three (3) years in the

Institutional Division of the Texas Dept. of Criminal Justice on 2-27-15. (5 RR 4).

A Motion for New Trial was filed on 3-16-15. (CR 55-58) The motion for new

trial was overruled 4-13-15. (CR 62) Notice of Appeal was filed on 4-23-15 and

was timely. (CR 65). A Certificate of Appeal was filed by the Court on 2-27-15.

( CR 44 ). This Court granted an extension to file brief until 9-21-15, and it is

timely filed.


V.    ISSUE PRESENTED

      ISSUE ONE: Appellant was denied the effective assistance of counsel
      under the Sixth Amendment and a fair trial under the Fourteenth
      Amendment when trial counsel failed to object to a police officer testifying
      as an expert witness on the issue of deadly weapon when the evidence of a
      deadly weapon was otherwise insufficient.



VI.   STATEMENT OF FACTS

      On July 1, 2013, the Complainant, Sadai Simms, was coming from a drive

through restaurant on Braker Lane, Austin, Texas where she bought lunch to take

back to a class at the Austin Board of Realtors, on Braker Lane and Stonelake. (4

RR 27-29). After she left the drive through and got on Braker Lane she was



                                           8
behind a vehicle driving slower. That is when she heard honking and looked in her

rear view mirror and saw a pickup truck behind her. (4 RR 30). The gentleman in

the pickup appeared very angry and was throwing his hands in the air and he was

just really losing it. (4 RR 30).

      The man in the pickup was flipping off the Complainant and came close to

her bumper. He was about a foot behind her bumper. (4 RR 31). The car in front

of her went to the center and she sped up. (4 RR 31). She believed she was in

danger due to road rage. (4 RR 31) There were three lanes in the direction she

was heading. She was in the far right lane. (4 RR 32). The Complainant testified

she could hear the man in the pickup that was following her yelling racial epithets

and threatening to kill her. (4 RR 33). She said he was screaming out of his

window and that her windows were down. (4 RR 34).

      The Complainant would testify further that she tried to speed up to stay the

speed limit. He is on her bumper like trying to hit her. (4 RR 34). The pickup

moved to the center lane and drove up to her side yelling, calling her names, and

threatening to kill her. (4 RR 34). He was yelling and leaning over a female

passenger in the pickup while holding on to the steering wheel. (4 RR 34). He

was swerving his pickup as if to hit me and I would try and avoid it. (4 RR 35).


                                          9
Every time I would brake, he would try to brake. (4 RR 35). He came right in

front of my car like trying to hit it. (4 RR 35).

      The Complaint says she ran up on the sidewalk because it appeared like he

was trying to run her off the road. It was her two tires on the right that went on

sidewalk.    (4 RR 36). Her car only went on the curb once and she was trying to

drag off the ‘kit’ that kind of bent on the bottom of her car. (4 RR 36). She says

she went again and that the truck stopped in front of her and he was hollering and

threatening her saying he was going to kill her. (4 RR 37) She says she slowed

down when he was in front and that she was on the phone with 911 and focused on

the license plate of the pickup. (4 RR 37). 911 told her to slow down. She said

when she had gotten off the sidewalk she just slowed real slow and let him go on

ahead. When asked if she had almost had a collision at that point she said no.

(4 RR 38).

      The Complainant on further questioning by the State said she had slowed all

the way down and let him go. He came to a stop and just sat there for about a

minute. (4 RR 38). She said she could not get past him, but he finally sped off

yelling and continuing to threaten her. (4 RR 38). After she tried to let him go it

looked like he was going to turn around to follow her. She then pulled into a hotel


                                           10
in the area where the Austin Board of Realtors is located. (4 RR 38) She floored

it and then left her car in front of the Austin Board of Realtors with her door open.

(4 RR 38). She did not see him coming through the parking lot or anything like

that. (4 RR 40).

      On cross examination the Complainant believed the distance from the

restaurant to the hotel was about three mile and she did not know how long she was

on the phone with 911. And she was unsure how long the event actually took. (4

RR 42-44).

      Officer Everett Beldin would testify for the State. (4 RR 44). He testified

that he had worked as a patrol officer for the Austin Police Department for 10

years and that he had no prior law enforcement experience. (4 RR 45). His

training consisted of the eight months of police academy and annual trainings

which vary, a wide variety. (4 RR 45) His duties as a patrol officer was to take

daily calls that would come up, anything from alarm calls to hot shot calls which

are more serious calls. (4 RR 46).

      He received a call from the 2500 block of East Braker Lane and could not

remember if the call was about a a disturbance or reckless driver. (4 RR 46) He

made contact with a black female who appeared afraid and upset. (4 RR 46). She


                                          11
gave him the license plate number of the truck and he check it out. It came back to

a Michael J. James. (4 RR 47). While testifying he was asked the following

question by the State without objection or request by Trial Counsel to challenge the

qualifications of the officer or his factual basis for his opinion:

Q. Do you know the definition of a deadly weapon?

A. Yes.

Q. And that definition is anything in the manner of its use or intended use that’s

capable of causing death or serious bodily injury?

A. Correct.

Q. Based on the story that you received from Ms. Simms, was the car a deadly

weapon?

A. Yes.

Q. And based on your training and experience as an officer, can a vehicle be a

deadly weapon?

A. Yes.

(4 RR 48)

      The Appellant would testify that he did not intend to damage the

Complainant’s vehicle or cause an accident. (4 RR 72). On cross examination the


                                           12
Appellant was asked:

      Q. So really it seems the dispute that we have is whether or not you swerved

your vehicle at Ms. Simms’ vehicle and used it as a deadly weapon, would you

agree with that?

      A. No sir. I never use my truck as a vehicle — as a weapon. I like my truck

too well.

      (4 RR 75)

      The Appellant when asked by Mr. Booher what traffic was like, Appellant

answered that the traffic was really heavy. (4 RR 79-80)

      The State had introduced without objection the 911 tape of Ms. Simms’ call

to 911 through the witness Frances Crist Herrera as State’s Exhibit 1. (4 RR 25).

The call lasts 6.24 minutes. The first three minutes are Ms. Simms describing what

is happening in a strong, deliberate voice, no screaming, hollering, or panic. Her

first words to 911 are giving the license plate number of the truck and a description

of the truck. Within 30 seconds of the call Ms. Simms says he is threatening her

life, cutting her off, and running her off the road. She said he was reaching for

something saying he is going to blow my brains out. She saw no weapons

exhibited. 911 operator tells her to slow down and pull over. She tells the operator


                                          13
that there are cars all around her and was slowing all the way down. She said he

tried to hit her twice, cutting me off, she hit her brakes, truck is in front of her

crossing over MoPac and he was 4 or 5 cars ahead when she turned in Hampton

Inn.



VII. SUMMARY OF ARGUMENT

       Trial counsel did not object to the expert opinion of a police officer that was

offered by the State on the issue of deadly weapon without having been qualified

by the State. Trial counsel did not object and challenge the police officer under

Rule 702 of the Texas Rules of Evidence and did not challenge the factual basis

upon which the officer’s testimony was based under Rule 705 of the Texas Rules

of Evidence. The evidence concerning whether the use of the vehicle of Appellant

amounted to being a deadly weapon was insufficient. But for the opinion

testimony of the police officer the evidence would have been insufficient to prove

deadly weapon beyond a reasonable doubt. And as a result of the unchallenged

testimony of the police officer, Appellant was deprived of the effective assistance

of counsel under the Sixth Amendment and a fair trial under the Fourteenth

Amendment. U.S. Const. Amend IV and U.S. Const. Amend XIV.


                                            14
VIII. ARGUMENT AND AUTHORITIES

   1. ISSUE ONE RESTATED: Appellant was denied the effective assistance of
      counsel under the Sixth Amendment and a fair trial under the Fourteenth
      Amendment when trial counsel failed to object to a police officer testifying
      as an expert witness on the issue of deadly weapon when the evidence of a
      deadly weapon was otherwise insufficient.

       i.    Introduction

      Usually ineffective assistance of counsel is not raised on direct appeal

because often the record is not sufficiently developed. But if trial counsel’s errors

and omissions are obvious from the record and there is no conceivable “ reasonable

trial strategy” ineffective assistance of counsel claims can be raised on direct

appeal. In fact, undersigned counsel believes that failing to raise this issue on

appeal may constitute ineffective assistance of counsel on appeal.

      In this case, trial counsel failed to object or challenge a police officer’s

offered expert opinion on the issue of deadly weapon without having even been

qualified as an expert by reason of training or experience on vehicles as deadly

weapons. And further, trial counsel had a right to a hearing to determine whether

the officer was qualified as an expert and also to challenge the factual basis for the

officer’s testimony. Tex. Rule Evid. 702 and Tex. Rule Evid 705. In this case


                                           15
there was not one single question of the officer by the State or trial counsel about

what type of training or experience the officer had concerning vehicles as deadly

weapons. Was the officer an accident investigator or expert in accident

reconstruction. Had the officer ever investigated an accident or vehicular crime

resulting in serious injury of death. And what is the factual basis for his opinion,

the story he was told by Ms. Simms which is presumably what she said on the 911

tape and her court testimony.

      We do not know what the speed limit was. We do not know how fast the

vehicles were moving. We do not know which part of Ms. Simms’ car was almost

hit and at what speed.   We do not know how many traffic lights between

the drive through restaurant and Hampton Inn. In fact, no one was asked. And

was the distance three miles or actually just one. No one bothered to check with a

proper and admissible data base. Surely an accident investigator would know this.

      What we do know is there was no evidence as to any observable damage to

Ms. Simms’ car or Appellant’s vehicle. We know that no one was injured. We do

know that traffic was heavy, even Ms. Simms said there were cars all around her.

We know that no other vehicle was hit or almost hit. We know that there were no

other 911 calls other than Ms. Simms. And we know that for a good part of the


                                          16
time involved Appellant’s vehicle was in front of Ms. Simms. We know from Ms.

Simms the speed involved was described as “ real slow”. See Statement of Facts

supra with record citations. And we know that when Ms. Simms would brake

Appellant would brake. Please refer to the Statement of Facts and cited record.

      The crucial and most important issue in this case was whether the

Appellant’s vehicle was a deadly weapon. Without a deadly weapon finding we go

from an aggravated assault with deadly weapon, a second degree felony punishable

by up to 20 years in prison (Tex. Pen. Code §§ 22.02(a)(2) and 22.02(b), to a

terroristic threat, a class b misdemeanor punishable by up to 180 days in jail (Tex.

Pen. Code §§ 22.07(a)(2) and 22.07(b). Here trial counsel made no attempt to

challenge the issue. The officer was not qualified and gave no factual basis for his

opinion. And since he did not perceive the event he was not even qualified to

testify as a lay witness. Tex. Rule Evid. 701.

      ii.    Standards for raising ineffective assistance of counsel on direct
             appeal

      Generally, the record must be sufficiently developed to overcome the strong

presumption of reasonable assistance of counsel at trial. See Thompson v. State,

9 S.W.3d 808, 813-814 (Tex. Crim. App. 1999). A silent record that provides no



                                          17
explanation of trial counsel’s actions will not overcome the strong presumption of

reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110-111 (Tex. Crim.

App. 2003). However, as Appellant will show below, this Court should not “

assume a strategic motive if any can be imagined” and find that trial counsel’s

performance sufficient because the mistakes that trial counsel committed in this

case were so deficient that no competent attorney would have made such mistakes.

See Andrews v. State, 159 S.W. 3d 98, 101 (Tex. Crim. App. 2005).

      When it is clear from the record that there was “no strategy”, a reviewing

court may find on direct appeal that a trial attorney committed ineffective

assistance of counsel. See Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim.

App. 1992) (finding ineffective assistance of counsel on direct appeal because trial

counsel’s failure to request an instruction on the only defense raised by the

evidence “would not have been acceptable strategy”). In Fuller v. State, 224

S.W.3d 823 (Tex. App. Texarkana 2007), the court of appeals found that trial

counsel had “no strategy” when, in a sexual assault of a child and indecency with a

child case, trial counsel failed to object to improper testimony from four witnesses

“bolstering” the 15 year old alleged victim’s truthfulness and credibility. Id. at

835-836. See also Aldrich v. State, 296 S.W 2d 225, 232 (Tex. App. Ft. Worth,


                                          18
2009, pet. ref.) (“ the trial record on direct appeal alone may present the appellate

court with sufficient information to conclude that no reasonable trial strategy

would justify counsel’s conduct because counsel’s performance falls below an

objective standard of reasonableness as a matter of law, regardless of whether the

record adequately reflects trial counsel’s subjective reasons for acting as he did”).

      And in Ramirez v. State, 987 S.W. 2d 938, 943-947 (Tex. App. -Austin

2001), the of appeals found that the trial attorney was ineffective for failing to

object to what was obvious hearsay testimony or to request a limiting instruction ,

limiting the jury’s consideration of the statement for impeachment purposes only.

Finally, in Owens v. State, 916 S.W. 2d 713, 717-719 (Tex. App. Waco 1996), the

court of appeals agreed with the trial court’s ruling that the alleged victims’s prior

statements were inadmissible as substantive evidence under the “ statement against

interest” exception to the hearsay rule because they did not make her the object of

hatred, ridicule or disgrace by society. Id. However, because the victim’s written

statement and her original signed complaint were admissible only for the limited

purpose of impeachment as a prior inconsistent statements, the trial attorney’s

failure to object or request a limiting instruction could not be considered sound

trial strategy and created a reasonable probability that, but for his failure, the


                                           19
verdict would have been different. Id.

      iii. Standards for effective ineffective assistance of counsel

      Under Strickland v. Washington, 466 U.S. 668 (1984), to show ineffective

assistance of counsel, the defendant must show by a preponderance of the evidence

that trial counsel’s performance: (1) was deficient, and (2) prejudiced the defense.

Id. at 687; see also Ex parte McFarland 163 S.W.3d 743, 753-754 (Tex. Crim.

App. 2005) and Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).

Deficient trial counsel is shown if the defendant shows by a preponderance of the

evidence that the trial counsel’s “ representation objectively fell below the standard

of professional norms.” See McFarland, 163 S.W.3d at 753 (the trial counsel’s

conduct deficient if he failed to act as “ a reasonably competent attorney would

have under the circumstances.”); see also McFarland v. State, 928 S.W.2d 482,

500 (Tex. Crim. App. 1996) and Mitchell, 68 S.W.3d at 642. A trial attorney’s

representation, evaluated as a whole, is presumed to fall within the wide range of

reasonable professional assistance. Thompson, 9 S.W.3d at 813. The burden is on

the defendant to show by a preponderance of the evidence that trial counsel’s

performance was ineffective. Ib.

      “Prejudice” is proven by showing “a reasonable probability that, but for trial


                                          20
counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. “ Reasonable probability” is a “probability

sufficient to undermine confidence in the outcome,” or errors “...so serious as to

deprive the defendant of a fair trial, a trial whose result is reliable.” Id.at 687, 694.

See Mitchell, 68 S.W.3d at 644.

      iv.    Counsel was ineffective for failing to object to the expert opinion of a
             police officer on the issue of a vehicle as a deadly weapon

      The most important issue in this case was whether the Appellant used his

vehicle as a deadly weapon. The officer was not a witness to the event and could

not offer a lay opinion since he did not perceive the event. Tex. Rule Evid. 701.

For any witness to offer expert testimony that witness must be qualified by reason

of knowledge, skill, experience, training or education and said testimony should

assist the trier of fact in understanding the evidence or deciding a fact in issue.

Tex. Rule Evid. 702. The officer in this case was never qualified by the state and

trial counsel neither objected or requested a hearing to challenge the officer’s

qualification to render an opinion. Further, trial counsel was entitled to voir dire or

question the officer prior to his giving his expert opinion to determine if the officer

has sufficient facts or data upon which to base his opinion. Tex. Rule Evid. 705.



                                            21
       A vehicle is not a deadly weapon per se. However, a vehicle can become a

deadly weapon if it is used in a manner capable of causing death or serious bodily

injury. Tex. Pen. Code § 1.07(a)(17)(B); Ray v. State, 880 S.W.2d 795, 796 (Tex.

App. Houston [1st Dist.] 1994, no. pet.); Ex parte McKithan, 838 S.W.2d 560, 561

(Tex. Crim. App. 1992); Roberts v. State, 766 S.W.2d 578 (Tex. App. Austin 1989,

no pet.).

       Specific intent to use a vehicle as a deadly weapon is not required. McCain

v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); Walker v. State,897 S.W.2d

812, 814 (Tex. Crim. App. 1995). If it is proven, along with other evidence, that a

vehicle is used recklessly or with criminal negligence, a deadly weapon finding

may be appropriate. Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App.1995).

       In Brister v. State, 449 S.W.3d 490 (Tex. Crim. App. 2014) the court held

that based on the record before it, there was no reasonable inference that Brister

used his vehicle as a deadly weapon. A court must view the evidence in the light

most favorable to the verdict. Jackson v. Virginia,443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). In Brister, id, the Court requires more than mere

speculation or imagined harm, but actually placing someone in actual danger of

serious harm.


                                          22
        In this case we know there was no injury or damage shown. We know no

other cars were placed in danger, we know that the speed was as the Complainant

stated, real slow. We know that when the Complaint says she went up on the

sidewalk no one was actually placed in any danger and she was going real, real

slow. The officer did not note any damages to tires or to the car, or at least did not

testify to having seen any. But for the officer saying the vehicle was a deadly

weapon, this record does not support a rational inference that a deadly weapon was

used.

        v.    Conclusion

        Because the evidence would have been insufficient to prove that Appellant’s

vehicle was a deadly weapon but for the un-objected to officer’s expert opinion,

Appellant received ineffective assistance of counsel and shows prejudice by virtue

of a conviction for a second degree felony instead of a class b misdemeanor.



                                        PRAYER

        Appellant prays that this Honorable Court sustain point of error one, reverse,

and remand for a new trial, reform the judgment to a conviction for terroristic

threat and remand for sentencing, or enter a judgment of acquittal.


                                           23
Respectfully submitted,

/s/Leonard Martinez
LEONARD MARTINEZ
812 San Antonio Street
Suite 101
Austin, Texas 78701
512-472-0958
512-472-3054 Fax
State Bar No. 13142750

ATTORNEY FOR APPELLANT



                          Certificate of Service

       I, Leonard Martinez, counsel for appellant do hereby certify that a true and
correct copy of the foregoing document was faxed through the efiling system to
Rosemary Lemberg, Travis County District Attorney, Travis County Criminal
Justice Center, 509 W. 11th Street, Austin, Texas 78701 , fax number 512-854-
9695by facsimile service this 21st Day of September, 2015.


                                       /s/Leonard Martinez
                                       Leonard Martinez
                                       State Bar No. 13142750


                          Certificate of Compliance

      The pleading complies with TEX. R. APP. P 9.4. According to the word
count function of the program used to prepare the document, the brief contains
4543 words excluding the items not to be included within the word count limit.




                                         24
/s/ Leonard Martine
Leonard Martinez
State Bar No. 13142750




 25
