                                                                                            ACCEPTED
                                                                                       13-14-00709-CR
                                                                         THIRTEENTH COURT OF APPEALS
                                                                               CORPUS CHRISTI, TEXAS
                                                                                  4/14/2015 9:59:45 PM
                                                                                     DORIAN RAMIREZ
                                                                                                CLERK

                                      COURT OF APPEALS

                        13th SUPREME JUDICIAL DISTRICT OF RECEIVED
                                                           TEXAS IN
                                                        13th COURT OF APPEALS
        FILED                                        CORPUS CHRISTI/EDINBURG, TEXAS
IN THE 13TH COURT OF APPEALS
                                   CORPUS CHRISTI, TEXAS 4/14/2015 9:59:45 PM
        CORPUS CHRISTI
                                                          DORIAN E. RAMIREZ
         04/14/15                 CASE NO. 13-14-00709-CR        Clerk

DORIAN E. RAMIREZ, CLERK
BY DTello              Tr.Ct.No. 13-CR-2682-D(S1)
        _______________________________________________________

        JUAN MEDINA                                                   APPELLANT
                                              VS.

        THE STATE OF TEXAS                             APPELLEE
        _______________________________________________________

                Appealed from the 105th Judicial District Court

                           Nueces County, Texas
         _______________________________________________________

                            APPELLANT'S BRIEF
         _______________________________________________________

                                  RANDALL E. PRETZER, PLLC

                                   State Bar No. 16279300

                                       P.O. Box 18993

                                Corpus Christi, Texas 78480

                                    BUS: (361) 883-0499

                                    FAX: (361) 883-2290

                               E-Mail: RPretzer@Clearwire.net

                                   ATTORNEY FOR APPELLANT
  IDENTITY OF PARTIES AND COUNSEL

          JUDGE PRESIDING

 THE HONORABLE ANGELICA HERNANDEZ

    105H JUDICIAL DISTRICT COURT

         901 LEOPARD STREET

    CORPUS CHRISTI, TEXAS 78401


       COUNSEL FOR THE STATE

        MS. MICHELLE PUTMAN

    ASSISTANT DISTRICT ATTORNEY

         901 LEOPARD STREET

    CORPUS CHRISTI, TEXAS 78401


             APPELLANT

          MR. JUAN MEDINA

TEXAS DEPARTMENT OF CRIMINAL JUSTICE


        APPELLANT'S COUNSEL

    MR. RANDALL E. PRETZER, PLLC

       ATTORNEY FOR APPELLANT

           P.O. BOX 18993

    CORPUS CHRISTI, TEXAS 78480
                 i
                     TABLE OF CONTENTS

                                                     Page

IDENTITY OF PARTIES AND COUNSEL    . . . . . . . . . i

TABLE OF CONTENTS    . . . . . . . . . . . . . . . ii-iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE    . . . . . . . . . . . . . . 1-3

STATEMENT OF FACTS . . . . . . . . . . . . . . . . 3-15

FIRST SUMMARY OF THE ARGUMENT     . . . . . . . . . . 16

FIRST POINT OF ERROR . . . . . . . . . . . . . . . 16

                    FIRST POINT OF ERROR

  THE EVIDENCE INTRODUCED AT TRIAL WAS FACTUALLY AND

LEGALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION

    IN COUNT ONE (1) AGGRAVATED ASSAULT ON A PUBLIC

  SERVANT, IN COUNTS (2) AND (3) ASSAULT ON A PUBLIC

SERVANT, ALL IN VIOLATION OF THE DUE PROCESS CLAUSE OF

    THE 5TH AND 14TH AMENDMENTS TO THE UNITED STATES

                        CONSTITUTION.




                             ii
ARGUMENT AND AUTHORITIES    . . . . . . . . . . . . 16-22

SECOND SUMMARY OF THE ARGUMENT     . . . . . . . . . 22

SECOND POINT OF ERROR . . . . . . . . . . . . . . 22-23

                   SECOND POINT OF ERROR

   THE TRIAL COURT ERRED WHEN IT FAILED TO FIND, SUA

SPONTE, THAT THE POLICE OFFICERS UNLAWFULLY DISCHARGED

 THEIR OFFICIAL DUTIES AS PUBLIC SERVANTS, SUCH ERROR

  DEPRIVING APPELLANT OF BEING SENTENCED UNDER LESSER

 INCLUDED OFFENSES OF SIMPLE ASSAULT, ALL IN VIOLATION

OF THE DUE PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS

          TO THE UNITED STATES CONSTITUTION.

ARGUMENT AND AUTHORITIES    . . . . . . . . . . . . 23-27

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . 27-28

CERTIFICATE OF SERVICE     . . . . . . . . . . . . . 28

CERTIFICATE OF COMPLIANCE, RULE 9.4(i), T.R.A.P.     28




                             iii
                   INDEX OF AUTHORITIES


Cases:                                                Page


Hightower v. State, 389 S.W.2d 674 (Tex.Crim.

App.1965)   . . . . . . . . . . . . . . . . . . . .    17

Crocker v. State, 573 S.W.2d 190 (Tex.Crim.App.1978) 17

Moore v. State, 531 S.W.2d 140 (Tex.Crim.App.1978.     17

Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984) 17

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L. Ed.2d 560 (1979) . . . . . . . . . . . . . . . . 17

Girard v. State, 631 S.W.2d. 162, (Tex.Crim.App.

[Panel Op] 1982)    . . . . . . . . . . . . . . . . . 17

Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1985). 18

Hall v. State, 158 S.W.3d, 470, 471 (Tex.Crim.App.).

2005) . . . . . . . . . . . . . . . . . . . . . . . 23




                           iv
                       COURT OF APPEALS

          13th SUPREME JUDICIAL DISTRICT OF TEXAS

                     CORPUS CHRISTI, TEXAS

                    CASE NO. 13-14-00709-CR

               Tr.Ct.No. 13-CR-2682-C(S1)
_______________________________________________________

JUAN MEDINA                                           APPELLANT
                               VS.

THE STATE OF TEXAS                             APPELLEE
_______________________________________________________

    Appealed from the 105th Judicial District Court

                  Nueces County, Texas
_______________________________________________________

                   APPELLANT'S BRIEF
_______________________________________________________


TO THE HONORABLE 13th COURT OF APPEALS:

                     STATEMENT OF THE CASE

    On July 1, 2014, the Appellant waived his right to a

jury trial and proceeded to try his case before the judge

alone. (RR, Vol. 2, page 12).              On July 1, 2014 the

Appellant pled NOT guilty to one count of Aggravated

Assault   on   a   Public   Servant,   a   first   decree   felony


                                1
(Repeat Felony Offender, enhanced and punishable to no

less than fifteen years and up to 99 years or life), and

NOT guilty to two counts of Assault on a Public Servant,

each a third decree felony (Repeat Felony Offender,

enhanced and punishable as a second degree felony), under

Cause No. 13-CR-2682-D(S1), entitled The State of Texas

v. Juan Medina. (RR, Vol. 3, pp. 14-17).      Subsequently,

the state presented to the judge its evidence through

testimony and exhibits. Appellant presented to the judge

his evidence through testimony.     Thereafter, the state

and   Appellant   rested.   On    July   9,   2014,   after

deliberation, the judge found Appellant of guilty of all

counts under the indictment. (RR, Vol. 4, pp. 5-12).     On

September 3, 2014, the court again convened to hear

evidence during the punishment phase of this trial.     The

state submitted to the court documentation of Appellant’s

previous felony and misdemeanor convictions. Thereafter,

the state rested and closed, and presented argument to

the court regarding sentencing.    The Appellant presented

his evidence through witnesses’ testimony.     Thereafter,


                            2
Appellant      rested   and   closed,    and    presented     argument

regarding sentencing. The court then sentenced Appellant

as follows: to fifteen (15) years in prison, under count

one, for the offense of Aggravated Assault on a Public

Servant; and, to three (3) years in prison, for each the

remaining counts, two and three, for the offenses of

Assault on a Public Servant. All sentences for each count

would run concurrently. (RR, Vol. 4, pp. 5-34).

    On October 2, 2014, Appellant filed a Motion for New

Trial and Arrest of Judgment. (CR, Vol. 1, page 121).

    Appellant perfected his appeal by filing with the

District Clerk of Nueces County, Texas, in writing his

Notice of Appeal, on November 26, 2014. (CR, Vol. 1, page

140).

                        STATEMENT OF FACTS

    Again, On July 1, 2014, the Appellant waived his

right to a jury trial and proceeded to try his case before

the judge alone. (RR, Vol. 2, pp. 12).                 On July 1, 2014

the Appellant pled NOT guilty to one count of Aggravated

Assault   on    a   Public    Servant,   a     first    decree   felony


                                  3
(Repeat Felony Offender, enhanced and punishable to no

less than fifteen years and up to 99 years or life), and

NOT guilty to two counts of Assault on a Public Servant,

each a third       decree felony (Repeat Felony Offender,

enhanced and punishable as a second degree felony), under

Cause No. 13-CR-2682-D(S1), entitled The State of Texas

v. Juan Medina.

       Subsequently, the state presented to the court its

evidence through testimony and exhibits.

       The first witness called by the state was Sergeant

Edward A. Soliz, Corpus Christi Police Department (CCPD),

who being sworn, testified as follows: that on or about

August    13,    2013,   he    answered   a    call        regarding   a

disturbance at 2621 Elgin Street, Corpus Christi, Texas;

that his partner, Sergeant Gilbert Casas, had already

arrived at the scene of this disturbance and was talking

with     the    complainant,   Juan   Medina,        the    father     of

Appellant; that the father informed the officers that

Appellant had just been released              from    a psychiatric

TRIAGE, that Appellant was trying to sell to his father


                                 4
some   of   his   medication,   and   that   the   father   wanted

Appellant out of his house since he was in fear for his

life; that the father escorted the officers into the

house where they found Appellant sitting in a chair

(which was against the wall) in a small room about 20 by

20 feet in area; that the father preceded the officers

and sat down on a bed to the immediate right of where

Appellant was sitting; that Sergeant Soliz then initiated

a conversation with Appellant and informed him that his

father wanted him to leave his home; that Appellant

responded with some profanity directed at the officers

and then began to argue with his father regarding the

ownership of the medication; that at that time Sergeant

Soliz believed that the father might be in danger of his

person, so he asked Appellant to accompany the officers

outside the home; that Sergeant Soliz then moved in

between Appellant and his father and again asked him to

accompany the officers outside the home so that they

could talk about the situation; that Appellant, according

to Sergeant Soliz, then responded, ”Don’t touch me, if


                                5
you touch me I am going to kick your fucking ass”; that

Sergeant Soliz asked him several more times to leave with

the officers so they could talk about the situation; that

Appellant continued to curse at the officers and refused

to leave; that Sergeant Soliz then informed Appellant

that one of the officers would use the TASER if he did

not cooperate; that from Sergeant Soliz’s testimony it

appeared that the TASER failed; that Sergeant Soliz then

grabbed Appellant’s left arm in an effort to remove

Appellant from the home; that Appellant stiffened his

position in the chair (wherein he continued to sit); that

according to Sergeant Soliz, Appellant’s actions forced

him to attempt to pull Appellant’s left arm behind his

back;   that   Appellant      struggled   loose   from   Sergeant

Soliz’s grip and elbowed him several times; that such

action by Appellant’s elbow was painful; that during this

“elbowing” Sergeant Soliz heard his partner, Sergeant

Casa, ejaculate that Appellant had kicked him in the

testicular     area;   that    Sergeant   Soliz   then   grabbed

Appellant around his neck in an effort to subdue him;


                                 6
that    Appellant     slipped    out   of    the   neck-hold;   that

Sergeant Soliz again grabbed Appellant’s left arm with

both of his hands; that again Sergeant Soliz then lost

his grip on Appellant and that was when his arm was pulled

out of joint; that Sergeant Soliz heard the popping sound

regarding an injury to his right shoulder joint; that he

and Sergeant Casas then held Appellant down until back-

up police personnel arrive to assist in detaining and

transporting Appellant to the Nueces County jail; that

Sergeant Soliz was in his police officer’s uniform with

his    badge   displayed   when     this    incident   began;   that

Sergeant Soliz as a result of this struggle had to undergo

surgery for his shoulder which had resulted in some

limitation of the movement of his right arm; that during

cross-examination by Appellant’s counsel, Sergeant Soliz

informed the court that there was no protocol that he

knew regarding interacting and, if necessary, arresting

a   person     with   mental    issues;     that   Appellant,   while

sitting in the chair, never made any aggressive moves

toward anyone in the 20 by 20 foot room; that Appellant


                                   7
did indeed put his hands behind his back while sitting

in the chair; that under cross-examination, Appellant was

deemed under arrest when he began to struggle with the

officers as they grabbed Appellant and warned him about

the possible use of the TASER; that until that time

Appellant, from the evidence, was just venting his anger

and frustration to all in this small room in his father’s

home; that Sergeant Soliz denied several times that he

ever    pulled   his   service    pistol   on    Appellant;   that

Sergeant Soliz related that any injury he sustained

incurred    after   Appellant     was   deemed    arrested;   that

Appellant did not kick or pull his right arm out of joint;

and, that such injury occurred when the officers were

trying to lift Appellant out of the chair and take him

outside to talk. (RR, Vol. 2, pp. 23-73).

       The next witness called by the state was Mrs. Rea

Strowbridge, physical therapist for Sergeant Soliz, who

being sworn, testified as follows: that in her opinion

Sergeant    Soliz   suffered     serious   bodily   injury;   that

though he suffered such serious bodily injury he was


                                  8
still able to work as a policeman despite there being

was some limitation as to how high he could raise his

arm; and, that such limited mobility could be alleviated

by minor surgery to remove some bone tissue that would

press on muscle tissue when his arm was raised to a

certain height. (RR, Vol. 2, pp. 74-81).

       The next witness called by the state was Sergeant

Gilbert Casas       (CCPD), who         being sworn,      testified as

follows: that on the day of the incident he had arrived

at the house where Appellant was living with his father;

that Appellant’s father had informed him that Appellant

had just left the psychiatric TRIAGE; that his partner,

Sergeant Soliz also arrived at this residence about the

same    time;   that   Appellant’s         father   related    to   the

officers that he and Appellant were in an argument about

his not buying drugs from Appellant; that Sergeant Casa

entered the home and went to the room where Appellant was

sitting    in   a   chair;   that       Appellant   was   angry,    very

agitated, and had made threats to beat on Sergeant Soliz;

that he then decided that Appellant should be removed


                                    9
from the home and taken outside so that the officers

could talk to him; that since the threats continued, he

and    Sergeant   Soliz    decided       to    take    Appellant     into

custody; that Sergeant Casas was on Appellant’s right-

side   and   Sergeant     Soliz    was   on    his     left-side;    that

Appellant then put his hands behind his back and crossed

his legs; that a struggle ensued wherein Sergeant Soliz

injured his right-shoulder and that he, Sergeant Casas,

was kicked in the groin; that both officers held him down

until back-up police personnel arrived to assist them

with the arrest and transport of Appellant to the Nueces

County jail; that under cross-examination by Appellant’s

counsel,     Sergeant    Casas     related      that    it   was    after

Appellant had kicked him in the groin that he attempted

to deploy his TASER, but it failed; that his reason for

detaining Appellant in the first place was to deal with

Appellant’s    wanting     to     sell   his    medication     and    his

father’s refusal to return Appellant’s medication to

Appellant; and, that the detention devolved into an




                                   10
arrest when Appellant allegedly became combative and

verbally abusive. (RR, Vol. 2, pp. 82-108).

      Thereafter, the state called Senior Officer George

Alvarez (CCPD), who being sworn, testified as follows:

that on the day of the incident he came to the scene of

the confrontation with Appellant as back-up for Sergeants

Soliz and Casas; that during the struggle he managed to

get   Appellant   in   a   head-lock       so     that   he   could   be

handcuffed; that he witnessed Appellant struggling with

the   other   policemen,    all    of     whom    were   yelling      and

struggling with each other; that Appellant did yell at

Senior Officer Alvarez complaining that he was choking

him; that Appellant was very strong; and, that shortly

thereafter other officers arrived who placed Appellant

in a police vehicle and transported him to the Nueces

County jail. (RR, Vol. 2, pp. 109-123).

      At that time the state rested.

      Appellant   called    one        witness,     Robert    Jonathan

Medina, during the merits of the case, who being sworn,

testified as follows: that on that day, he was in the


                                  11
room where Appellant had the confrontation with the

police officers; that he saw the two officers when they

first arrived and approached Appellant and his father,

Juan Medina; that Appellant was sitting at all times in

the chair (which later evolved into a love seat); that

he had left the room briefly and when he returned he

noticed that the older policeman (Sergeant Edward Soliz)

was   very    angry;   that   Appellant   had   not   made    any

threatening     movements     towards   the   policemen;     that

suddenly the two policemen approached Appellant and began

to struggle with him; that he saw Appellant put his arms

behind his back and cross his legs; that he saw the same

older policeman (Sergeant Edward Soliz) pull his service

pistol and point it at Appellant’s abdomen; that the

younger officer (Sergeant Gilbert Casas) then attempted

to deploy his TASER, but it failed; that he then shouted

at the police that the use of a gun was not necessary;

that the two officers then grabbed Appellant again and

fell on him, all the while he was still on this love

seat; that when the other officers arrived they subdued


                                12
Appellant and removed him from the house; that when he

was interviewed by the investigating officer for this

case, he did indeed tell him about the older policeman

(Sergeant Edward Soliz) pointing his service pistol at

Appellant’s abdomen; that it was his opinion that there

was no way that Appellant could have elbowed or kicked

anyone due to his being pressed down onto this love seat;

that furthermore there were too many policemen and there

was too little wiggle room for Appellant to do much of

anything; that during cross-examination by the state the

witness    was   familiar    with   Appellant’s   having     just

returned from the psychiatric TRIAGE; that it was his

understanding     that      Appellant   had    problems      with

schizophrenia; that it appeared to him that Appellant was

not feeling very well due to the medication which he had

received at the hospital; that he did recall Appellant

using the “F-word” in the presence of the police; that

he   did   not   recall     Appellant   ever   threatening     to

physically harm anyone; and, that even Appellant’s father




                               13
became upset with the police for their overreacting to

the Appellant’s demeanor. (RR, Vol. 2, pp. 142-177).

       Due to confliction testimony regarding the alleged

us     of     Sergeant   Soliz’s      service    pistol,     the   court

requested that the state bring forth for examination the

police officer who prepared the written offense report.

The state related to the court that the officer who

prepared this written offense report was Detective Ramiro

Torres. Thereafter, Detective Torres was summoned to

appear before the court.

       Detective     Torres,    who     being   sworn   testified     as

follows: that he prepared the written offense report in

this        particular   case   involving       Appellant;    that   he

interviewed several witnesses, including Robert Medina;

that he recalled that Robert Medina did relate to him

that    the     older    officer   (Sergeant     Edward    Soliz)    had

allegedly pulled his service pistol and pointed it at

Appellant’s abdomen; that Detective Torres however did

NOT include this statement from Robert Medina because he

did not think that he was a CREDIBLE witness; that he


                                   14
contended that his reasoning for not including Robert

Medina’s observations regarding Sergeant Soliz’s drawing

his service pistol was that none of the other witnesses

he interview mentioned this pistol; that                  though the

“recorded statement” contained Robert Medina’s pistol

observations,   it    was   not    included    in   the    narrative

statement since such statement was more of a summary and

NOT a detailed account of the incident; that he felt

Robert Medina was “. . . not believable, in my opinion”

[RR, Vol. 2, page 183]; that during cross-examination by

Appellant’s counsel, Detective Torres had a difficult

time determining the credibility of Sergeants Soliz and

Casas due to their inconsistent statements regarding the

attempted use of the TASER, the possible inability of

Appellant   kicking    Sergeant        Casas   in   the    groin   or

precipitating the injury to Sergeant Soliz’s shoulder.

(RR, Vol. 2, pp. 179-202).

    The state rested and closed.

    The defense rested and closed.




                                  15
                       SUMMARY OF THE ARGUMENT

      The state failed to offer sufficient evidence to

support the court’s finding that Appellant had, beyond a

reasonable doubt, committed any of the offenses set forth

in counts 1, 2 and 3 of the indictment, all in violation

of   the   5th   and    14th   Amendments   to    the United    States

Constitution.

                         FIRST POINT OF ERROR

     THE EVIDENCE INTRODUCED AT TRIAL WAS FACTUALLY AND

LEGALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION

      IN COUNT ONE (1) AGGRAVATED ASSAULT ON A PUBLIC

     SERVANT, IN COUNTS (2) AND (3) ASSAULT ON A PUBLIC

SERVANT, ALL IN VIOLATION OF THE DUE PROCESS CLAUSE OF

      THE 5TH AND 14TH AMENDMENTS TO THE UNITED STATES

                               CONSTITUTION.



                       ARGUMENT AND AUTHORITIES

      Appellant    contends       that   the     evidence   introduced

during     the   trial     was     insufficient     to   support   his

conviction under any of the counts in the indictment.


                                    16
    The courts have held that the state always has the

burden    to   prove   beyond    a   reasonable    doubt   that   the

accused    committed    the     criminal   acts    charged   in   the

indictment,      Hightower      v.     State,     389   S.W.2d    674

(Tex.Crim.App.1965).      Furthermore, the state being bound

by its allegations in the indictment must prove them

beyond a reasonable doubt.           Crocker v. State, 573 S.W.2d

190 (Tex.Crim.App.1978); Moore v. State, 531 S.W.2d 140

(Tex.Crim.App.1978).       The courts have held that in all

criminal cases regarding points of error for insufficient

evidence, the courts must examine 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.             Houston

v. State, 663 S.W.2d 455 (Tex Crim.App.1984); Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979); Girard v. State, 631 S.W.2d. 162, (Tex.Crim.App.

[Panel Op] 1982).      In addition, the courts have held that

this test for the sufficiency of the evidence would be

applied equally to direct and circumstantial evidence


                                  17
cases.   Wilson    v.    State,      654   S.W.2d    465

(Tex.Crim.App.1985).

    In this particular case, this honorable Court of

Appeals should note the following:



   1. That Appellant, prior to his being contacted by

     the police officers, had just come home from a

     hospital’s psychiatric TRIAGE;

   2. That Appellant was on medication;

   3. That Appellant appeared to be very agitated;

   4. That Appellant appeared to be very angry;

   5. That Appellant, other than using bad language, had

     NOT made any aggressive moves toward the police or

     his father;

   6. That Appellant was the VICTIM, to say the least,

     of heavy-handed management/conduct by the police

     officers, who tried to use a TASER on Appellant and

     who according to Robert Medina, un-holstered and

     pointed a service pistol at Appellant’s abdomen;




                          18
7. That this pistol issue was FOR SOME REASON omitted

  from the detective’s investigation report, which

  could be seen as an effort by the authorities to

  cover-up unacceptable and    unprofessional police

  conduct;

8. That Appellant appeared from the evidence to have

  been lodged in the chair (or love seat) during this

  confrontation with the police, with little ability

  to inflict any injury on anyone, until he was

  finally removed from his father’s home and taken

  to the Nueces County jail;

9. That Appellant’s father had objected to the way

  the police dealt with Appellant;

10. That the police made little effort to diffuse this

  family argument, especially considering Appellant

  had just been released from a psychiatric TRIAGE;

11. That the police admitted that they had no protocol

  or procedures to deal with Appellant who they knew

  had just returned from a psychiatric TRIAGE;




                        19
12. That the police never considered summoning EMS in

  an effort to deal with this Appellant who appeared

  still agitated, angry, on medication, and may not

  have been rational nor in control of his mental

  faculties;

13. That Sergeant Edward Soliz, as a senior police

  officer, clearly appeared to be unable to control

  his   own   emotional   response   to   Appellant’s   bad

  language -- as if a seasoned officer had never

  heard such language before or experienced similar

  volatile incidents after over thirty-four years

  with CCPD; and,

14. That even the court expressed its reservations

  regarding     the   professionalism     of   the   police

  officer’s conduct – using such language, or words

  to that effect, that the police officer’s conduct

  was heavy-handed, if not excessive. (RR, Vol. 4,

  pp. 57-62).




                          20
      Accordingly, the state failed to meet its burden of

proof and the court should have found at least that there

was, as a matter of law and fact, insufficient evidence

to    prove    the   elements      of     the    offense    of    aggravated

assault on a public servant, and prove the elements of

assault on a public servant, since Sergeant Soliz who

appeared from the record to be ill-tempered, precipitated

a simple detention of Appellant into a police officer’s

brawl with this Appellant who had just left a psychiatric

TRIAGE.       Furthermore,    it     is      Appellant’s     opinion   that

Sergeant       Casas’   injuries        did      not    constitute   bodily

injury, since he, according to the record, never sought

medical attention for the alleged kick in his groin nor

was    there     evidence     that      he      was    incapacitated   from

continuing       duties   a   police         officer;      and,   regarding

Sergeant Soliz, his injury required minor surgery, and

it was more likely that his age and extended service as

policeman made an otherwise minor injury seem worse than

it ever actually was.




                                     21
       Your Honors, citizens should not be convicted by

inconclusive and ambiguous evidence, which does not meet

the very high burden of proof as set forth by the time

tested phrases “beyond a reasonable doubt,” or “to a

moral certainty.”



                   SUMARY OF THE SECOND ARGUMENT

       The Appellant contends that the trial court should

have    found   that   Appellant   was   guilty   of   the   lesser

included offense of simple assault in each count, since

the evidence at trial clearly demonstrated that                the

police had UNLAWFULLY discharged their official duties

as public officials



                        SECOND POINT OF ERROR

   THE TRIAL COURT ERRED WHEN IT FAILED TO FIND, SUI

SPONTE, THAT THE POLICE OFFICERS UNLAWFULLY DISCHARGED

 THEIR OFFICIAL DUTIES AS PUBLIC SERVANTS, SUCH ERROR

  DEPRIVING APPELLANT OF BEING SENTENCED UNDER LESSER

 INCLUDED OFFENSES OF SIMPLE ASSAULT, ALL IN VIOLATION


                               22
OF THE DUE PROCESS CLAUSE OF THE 5TH AND 14TH AMENDMENTS

                TO THE UNITED STATES CONSTITUTION.



                        ARGUMENT AND AUTHORITIES

       Again,        Appellant       will     repeat       those         factors

previously set forth above, for this honorable Court of

Appeals       that     would       support    the    factual       and    legal

conclusion that the trial court could have and should

have    found,        sui    sponte,       that     the   police     officers

unlawfully discharged their duties as public officers

[See, Hall v. State, 158 S.W. 3d 470, 471 (Tex.Crim.App.

2005)]. This case contended that trial courts could

permit an instruction to the jury permitting those same

jurors to find a defendant guilty of a lesser included

offense    if    there       was    “some    evidence”      that    the     same

defendant was guilty of such lesser included offense. In

Hall    the     Court       of   Criminal    Appeals      found     that     the

defendant       had    not       offered    evidence      that   the     prison

officer’s conduct was unlawful                    during his effort to

restrain and subdue the Appellant in that case.                      However,


                                       23
in this particular case, it is Appellant’s position that

the police officer’s conduct was excessive, heavy-handed

and without justification, again considering all the

following factors:

    1. That Appellant, prior to his being contacted by

      the police officers, had just come home from a

      hospital’s psychiatric TRIAGE;

    2. That Appellant was on medication;

    3. That Appellant appeared to be very agitated;

    4. That Appellant appeared to be very angry;

    5. That Appellant, other than using bad language,

      had   NOT   made       any   aggressive   moves   toward   the

      police or his father;

    6. That Appellant was the VICTIM, to say the least,

      of heavy-handed management/conduct by the police

      officers, who tried to use a TASER on Appellant

      and who according to Robert Medina, un-holstered

      and   pointed      a    service    pistol   at    Appellant’s

      abdomen;




                                   24
7. That this pistol issue was FOR SOME REASON omitted

  from the detective’s investigative report, which

  could be seen as an effort by the authorities to

  cover-up unacceptable and unprofessional police

  conduct;

8. That Appellant appeared from the evidence to have

  been lodged in the chair (or love seat) during

  this confrontation with the police with little

  ability to inflict any injury on anyone, until he

  was finally removed from his father’s home and

  taken to the Nueces County jail;

9. That Appellant’s father had objected to the way

  the police dealt with Appellant;

10. That the police made little effort to diffuse

  this   family      argument,     especially    considering

  Appellant        had   just     been   released      from   a

  psychiatric TRIAGE;

11.   That   the    police   admitted    that   they   had    no

  protocol or procedures to deal with Appellant who




                             25
  they knew had just returned from a psychiatric

  TRIAGE;

12. That the police never considered summoning EMS

  to   attempt    to   deal    with   this    Appellant    who

  appeared    still agitated, angry, on medication,

  and may not have been rational nor in control of

  his mental faculties;

13. That Sergeant Edward Soliz, as a senior police

  officer, clearly appeared to be unable to control

  his own emotional response to Appellant’s bad

  language -- as if a seasoned officer had never

  heard such language before or experienced similar

  volatile incidents after over thirty-four years

  with CCPD; and,

14. That even the court expressed its reservations

  regarding      the   professionalism       of   the   police

  officer’s conduct – using such language, or words

  to that effect, that the police officer’s conduct

  was heavy-handed, if not excessive. (RR, Vol. 4,

  pp. 57-62).


                          26
      The Appellant did indeed at trial present evidence

that clearly indicated that this simple detention turned

into an unnecessary police brawl with Appellant who

apparently had just been released from a psychiatric

TRIAGE, who was not stable, who was under medication, and

who   should   have     been   attended   by   EMS   personnel   and

returned to the hospital for further treatment.



                           PRAYER FOR RELIEF

      For   ALL   the     reasons     stated    above,   Appellant

respectfully requests that the honorable Court of Appeals

reverse the trial court’s judgment, and render a finding

that Appellant is NOT guilty of all counts as set forth

in the indictment; or, in the alternative, reverse the

trial court’s judgment and render a judgment wherein

Appellant is found guilty of the lesser included offense

of simple assault in each count.

      RESPECTFULLY SUBMITTED:


      /S/   Randall E. Pretzer
      Randall E. Pretzer, PLLC
      Attorney for Appellant
                                 27
    State Bar No. 16279300
    P.O. Box 18993
    Corpus Christi, Texas 78480
    BUS: (361) 883-0499
    FAX: (361) 883-2290
    E-Mail: RPretzer@Clearwire.net


                   CERTIFICATE OF SERVICE

    I certify that a true and correct copy of Appellant’s

Brief was hand-delivered to the Nueces County District

Attorney’s Office, ATTN: Appellant Division, 901 Leopard

Street, Corpus Christi, Texas 78401, on April 6, 2015.



                                  /S/   Randall E. Pretzer
                                  Randall E. Pretzer, PLLC
                                  Attorney for Appellant

                  CERTIFICATE OF COMPLIANCE
                   UNDER RULE 9.4 (i), TRAP

    Please be advised that in compliance with Texas Rule

of Appellate Procedure 9.4(i)(3), as amended, I certify

that the number of words in this brief, excluding those

matters listed in Rule 94 (i)(1), is 4,202 as per the

computer count.

                                  /S/   Randall E. Pretzer
                                  Randall E. Pretzer, PLLC
                                  Attorney for Appellant

                             28
