            PD-1378-14
                                                          December 29, 2014
              No.                          _

                         IN THE

            COURT OF CRIMINAL APPEALS

              FOR THE STATE OF TEXAS
                 AT AUSTIN, TEXAS



             KEVEN ALVINO YOUNG, SR.

                      APPELLANT,

                            V.

                 THE STATE OF TEXAS,
                      APPELLEE


                 APPELLANT'S
      PETITION FOR DISCRETIONARY REVIEW

                NO.02-13-00032-CR
               COURT OF APPEALS
       FOR THE SECOND DISTRICT OF TEXAS
             AT FORT WORTH, TEXAS
        On appeal from Cause Number F-2011-0122-D
in the 362nd Judicial District Court of Denton County, Texas
         Honorable Bruce McFarling, Judge Presiding


                    STEPHEN WOHR

             ATTORNEY FOR APPELLANT

     APPELLANT REQUESTS ORAL ARGUMENT
                              LIST OF NAMES AND ADDRESSES

Mr. Michael Graves, Assistant District Attorney
and
Mr. Rick Daniel, Assistant District Attorney
Denton County Courts Building
1450 E. McKinney, Suite 3100
Denton, Texas 76209

Paul lohnson/Charles Orbison,
Criminal District Attorney
Appellate Division
1450 E. McKinney
Third Floor, Denton, Texas 76209

Mr. Keven Young
TDCl # 1846840
M. SkIes Unit
3060 FM 3514
Beaumont, Texas 77705

Mr. Mr. Carlton Hughes
401 Corporate Drive, Suite 100
Lewisville, Texas 75057

Ms. Debra H. Jones
419 S. Carroll, Suite 200
Denton, Texas 76201
Appellant's Trial Attorneys

Mr. Stephen Wohr
Attorney for Appellant
1417 E. McKinney, Ste. 100
Denton, Texas 76209

Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711
                                 TABLE OF CONTENTS

IDENTIFY OF PARTIES AND COUNSEL                                                              i

TABLE OF CONTENTS                                                                           ii

INDEX OF AUTHORITIES                                                                    iii-iv

STATEMENT REGARDING ORAL ARGUMENT                                                            1

STATEMENT OF THE CASE                                                                     1-2

STATEMENT OF PROCEDURAL HISTORY                                                             2

GROUNDS FOR REVIEW                                                                          2

REASONS FOR REVIEW:                                                                       3-8

PRAYER FOR RELIEF:                                                                          9

CERTIFICATE OF SERVICE:                                                                     9

APPENDIX                                                                                   10

        Keven Young v. State, No.02-13-00032-CR   (Tex. App.-Fort Worth, delivered August 29,
2014)( unpublished).




                                             11
                                  INDEX OF AUTHORITIES

                                          CASE LAW

Autry v. State, 626 S.W.2d 758 (Tex. Crim App. 1982)                                    8

Burnett v. State, 179 S.W.3d 18 (Tex. App.-San Antonio 2005, no pet.)                   7

Easley v. State, 564 S.W.2d 742 (Tex. Crim. App. 1978)                                  5

Givens v. State, 26 S.W.2d 739 (Tex. App. - Austin 2000)                                3

Gomez v. State, 183 S.W.3d 86 (Tex. App.--Tyler 2005, no pet.)                          7

Hopper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007)                                    8

Jackson v. Virginia, 433 U.S. 307, 99 S.Ct. 2781, 61 L.Ed2d 560 (1979)                3&6

King v. State, 638 S.W.2d 903 (Tex. Crim. App. 1982)                                    8

McKinney v. State, 177 S.W.3d 186 (Tex. App.--Houston [1st. Dist.] 2005, aff'd on
other grounds, 207 S.W.3d 366 (Tex. Crim. App. 2006)                                    7

Miller v. State, 177 S.W.3d 177 (Tex. App.--Houston [1st. Dist.] 2005, no pet.)         7

MojJ v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004)                                    6

Mueshler v. State, 178 S.W.3d 151 (Tex. App.--Houston [1st. Dist.] 2005, pet ref'd)     7

Scott v. State, 165 S.W.3d 27 (Tex. App.--Austin 2005, pet granted)                     7

Thomas v. State, 735 S.W.2d 688 (Tex. Crim App. 1988)                                   6

Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005)                             7

Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006)                                  6

West v. State, 121 S.W.3d 95 (Tex. App.--Fort Worth 2003, pet ref'd)                    7

Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013)                                 8

Wright v. State, 603 S.W.2d 838 (Tex. Crim. App. 1979)                                  5



                                               III
Yarborough v. State, 178 S.W.3d 895 (Tex. App.-- Texarkana 2005, pet refd)   7

Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)                       6

                                             TREATISES

Wharton's Criminal Evidence, 15th Ed. § 2:3                                  5

                                             STATUTES

TEX. R. ApP. PRO. 68.1, et seq (generally)                                   .

TEX.R. ApP. P. (general)                                                     .




                                                 IV
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS

        NOW COMES, Keven Young, Appellant in this cause, by and through his attorney of

record, Stephen Wohr, and, pursuant to the provisions of TEX. R. ApP. PRO. 66, et seq., moves this

Court to grant discretionary review, and in support will show as follows:

                    I. STATEMENT REGARDING ORAL ARGUMENT

        Appellant has raised important questions in this Court and believes that oral argument would

help clarify the issues presented in his petition for discretionary review.

                                II. STATEMENT OF THE CASE

        This case involves a murder charge wherein one of the two witnesses was the only one with

Gun Shot Residue (GSR) on her body. Sisters, Ebony Chandler and LaShondra Chandler testified

that they did not see the shot fired. However, they claimed that Keven Young, the father of Ebony

Chandler's children confronted Desmond Poe and he went into the house with Ebony Chandler.

After Desmond Poe returned to the garage where Keven Young and LaShondra Chandler were

talking, according to the sisters, Keven Young pulled out a pistol and shot Desmond Poe and then

left the scene.

        Police Officers searched the garage, finding a slug in the wall. However, the police never

searched the home for the murder weapon and in fact did not find the murder weapon, nor did they

find GSR on Keven Young. The police did find GSR on Ebony Chandler. Keven Young's vehicle

was located, however no one checked the vehicle for GSR. The case was built upon the testimony

of the sisters and no other evidence. Ebony Chandler admitted that she was not happy with Keven

Young regarding issues related to their children.

        On the 14th day of January in the 362nd Judicial District Court of Denton County, Texas,


                                                    1
Honorable Bruce McFarling, Judge Presiding, the case of the State of Texas v. Keven Young was

called to Jury Trial. The Prosecuting Attorney was Mr. Michael Graves and Mr. Rick Daniel and

the Appellant was represented at trial by Mr. Carlton Hughes. A record of the proceedings was

made by recording and transcribed by Ms. Molly Bowers, RDR, CRR. (Court Reporter's            Record,

Vol. 1 of 6, Pg. 16, L. 16-21).

        The trial was held on capital murder.

        The trial by Jury proceeded, and on January 17,2013, Appellant was convicted on a plea of

"Not Guilty" by the murder a lesser included offense of that in the indictment. (Reporter's   Record

Vol. 5 of 6, Pg. 5, L. 13-16). After the close of the punishment phase of the trial, the jury assessed

punishment at confinement for life in the Texas Department of Criminal Justice with a $10,000.00

fine. (Reporter's   Record Vol. 5 of 6, Pg. 51, L. 10-21). On January 17,2013, after the jury was

excused, the Honorable Bruce McFarling pronounced sentence of confinement for life in the Texas

Department of Criminal Justice and a fine of $10,000.00. (Reporter's     Record, Vol. 5 of 6, Pg. 53,

L.9-15).

                      III.   STATEMENT OF PROCEDURAL HISTORY

        Appellate presented one issues in his appellant brief. The conviction was affirmed in an

opinion that was not designated for publication, delivered on August 29, 2014. (See Appendix).

Motion for Rehearing and Reconsideration En Bane was filed and denied on October 21, 2014. This

petition is due to be filed on October 29,2014.

                                  IV. GROUNDS FOR REVIEW

       THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUPPORT THE
       JURY'S CONVICTION FOR MURDER.



                                                  2
                                  V. REASONS FOR REVIEW
       The evidence presented by the State in Keven Young's case was insufficient. The burden

of proof is on the State to present sufficient evidence and that right can not be waived or forfeited.

Givens v. State, 26 S.W.2d 739, 741 (Tex. App. - Austin 2000) (cites omitted). "The test for legal

sufficiency of the evidence is whether, after viewing all the evidence in the light most favorable to

the verdict, any rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt." Id. (cites omitted). The prosecution has the burden of production and the

burden of persuasion on the question of guilt and the standard is "beyond a reasonable doubt".

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

       illthis case, there is indeed missing information or alternatively, mis-information. The State

built its case around two witnesses Ebony Chandler and her sister LaShondra Chandler.               The

Chandler sisters stories are basically contradictory.   Ebony Chandler and Appellant, Keven Young

had two children together. (Reporter's      Record, Vol. 3 of 6, Pg. 48, L. 3-5). Ebony Chandler lived

with her children and sister. (Reporter's     Record, Vol. 3 of 6, Pg. 47, L. 1-11; Pg. 49, L. 12-14).

Ebony Chandler testified that she had spoken to Keven Young earlier in the day and that she told him

she would call him around 3:00 but she did not call him because "she thought that he would just

probably come over to get the kids". (Reporter's        Record, Vol. 3 of 6, Pg. 51, L. 22-25 through

Pg. 53, L. 13). Later, Ebony Chandler testified that "[i]fwe made an arrangement for him to be at

that certain time, he would just pop up". (Reporter's      Record, Vol. 3 of 6, Pg. 84, L. 4-12).

       Ebony Chandler had a rocky relationship with Keven Young but testified that it was basically

an amicable relationship.    This is contradictory to her testimony regarding the reason she knew

Keven Young's license plate number, allegedly to provided it to the police because ofthe fights they


                                                    3
had. (Reporter's Record, Vol. 3 of 6, Pg. 92, L. 2-5).

       Ebony Chandler testified that she initially locked the door between the garage and the house

after the shooting but then opened it to let her sister back into the house and after opening the door

went out to her van to get her cellular phone. (Reporter's Record, Vol. 3 of 6, Pg. 95, L. 18-25

through Pg. 96, Ln. 1-13). This was despite the fact that her sister had a working cellular phone

in the house.   (Reporter's Record, Vol. 3 of 6, Pg. 95, L. 18-25 through Pg. 96, Ln. 1-13).

       Ebony Chandler testified that the weapon she saw Keven Young with was silver while

LaShondra Chandler testified that the weapon was black. (Reporter's Record, Vol. 3 of 6, Pg. 66,

L. 1-3)(Reporter's Record, Vol. 3 of 6, Pg. 82, L. 4-10)(Reporter's Record, Vol. 3 of 6, Pg. 134,

L. 21-25 through Pg. 135, L. 1; Pg. 138, L. 7-12). One sister testified that she saw Keven Young

with the gun in his left hand, the other testified that he had it in his right hand. (Reporter's Record,

Vol. 3 of6, Pg. 71, L. 24-25 through Pg. 72, L.1; Pg. 82, L.11-21; Pg.135, L.14-25 through P.

136, L. 1). However, neither sister testified that they saw Keven Young shoot a gun. (Reporter's

Record, Vol. 3 of6, Pg.137, L. 4-5; Pg.137, L. 4-5).

        The officers investigating the offense never looked pasted Keven Young to determine if there

were other potential suspects or only superficially looked at other suspects. The investigation was

flawed in several aspects. First, the only individual with Gun Shot Residue (GSR) on the person was

Ebony Chandler. (Reporter's Record, Vol. 4 of 6, Pg. 87, L. 10-19). The GSR found on Ebony

Chandler did not prove or disprove she fired a weapon but there was still no search of the home.

(Reporter's Record, Vol. 4 of6, Pg. 94, L. 4-25 through Pg. 95, L. 1-6).

       Additionally, although Keven Young's vehicle was found while the crime scene investigators

were still working the crime scene, the vehicle was not tested for GSR. (Reporter's Record, Vol.

                                                   4
4 of6, Pg. 21, L. 2-25 through Pg. 22, L.1-19; Pg. 23, L.16-22).       (Reporter's   Record, Vol. 4 of

6, Pg. 44, L. 10-24)( Reporter's      Record, Vol. 4, or 6, Pg. 54, L. 18-25 through Pg. 55, L. 1-9).

Detective Teniente testified that GSR will stay on a surface four to five hours and then come off with

typical activity. (Reporter's   Record, Vol. 4 of6, Pg. 65, L. 11-21).

        Second, the investigating officers never searched the home for a weapon or shell casings.

(Reporter's   Record, Vol. 3 of 6, Pg. 188, L. 6-16; Vol. 4, or 6, Pg. 47, L. 14-25 through P. 48,

L. 1-4). There were no shell casings found in the house or the vehicle belonging to Keven Young.

(Reporter's   Record, Vol. 4 of 6, Pg. 23, L. 18-25 through Pg. 24, L. 1-6). Third, the officers did

not search the house for evidence that either sister might have changed clothes and showered after

the murder.

        Fourth, Detective Teniente testified that no one ever issued a subpoena for Keven Young's

cellular phone records. (Reporter's     Record, Vol. 4 of6, Pg. 66, L. 20-25 through Pg. 77, L. 1-14).

                                              ARGUMENT

        In order to prevail in a criminal case, the State must prove beyond a reasonable doubt that

the defendant committed the offense for which he/she stands accused. See, Wharton's Criminal

Evidence § 2.3. In the instant case, the State did not meet its burden of proof. Instead, the State

overwhelmed the jury with circumstantial evidence but nothing that was substantial.           The two

witness who accused Keven Young of the murder of Desmond Poe were sisters. There were clearly

issues between Keven Young and Ebony Chandler. The sisters stories were contradictory as set out

above. In a circumstantial case, "evidence must exclude every reasonable hypothesis except the guilt

of appellant. Wright v. State, 603 S.W.2d 838, 839 (Tex. Crim. App. 1979) (citing, Easley v. State,

564 S.W.2d 742 (Tex. Crim. App. 1978). Adopting the standard of review in Jackson v. Virginia,


                                                    5
the Moff Court found that the court "must consider all evidence which the jury was permitted,

whether rightly or wrongly, to consider". MoJJv. State, l31 S.W.3d 485, 488 (Tex. Crim. App.

2004) (citing, Jackson v. Virginia, 433 U.S. 307,99 S.Ct. 2781, 61 L.Ed2d 560 (1979). Further, the

MoffCourt found the method by which the State proved an element of the offense was deficient or

defective. However, an "appellate court must consider all evidence actually admitted at trial in its

sufficiency review and give it whatever weight and probative value it could rationally convey to a

jury". !d. at 489 (citing, Thomas v. State, 735 S.W.2d 688,695 (Tex. Crim App. 1988). The MoJJ

Court found that the question that an appellant is entitled to have answered is whether any rational

jury could have found beyond a reasonable doubt, from all the evidence admitted in the light most

favorable to the State, that the appellant committed the offense as charged. Id. at 492.

        The Zuniga Court delineated the precise standard of review for factual insufficiency

questions, including, linking the burden of proof at trial to the standard of review and avoiding

language suggestive of preponderance of the evidence burden of proof. Zuniga v. State, 144 S.W.3d

477, 484-85 (Tex. Crim. App. 2004).        Further, after Zuniga, the Watson Court held that the

"evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under

a beyond a reasonable doubt standard".     Watson v. State, 204 S.W.3d 404,417 (Tex. Crim. App.

2006) (holding that Zungia was flawed). ill the case at issue herein, the burden of proof was clearly

on the State, but the State also was in control of the evidence. They were also in control of what

evidence was collected and what evidence it chose to ignore through its agents, the investigating

officers.

        If evidence is both supporting and contradicting the verdict, and the contrary evidence is so

strong that guilt can not be proven beyond a reasonable doubt, then the evidence is factually


                                                  6
There was no investigation as to whether GSR was in the vehicle driven by Keven Young. There

was no investigation or search of the home of the Chandler sisters for evidence of a cover up,

including whether they had bathed, whether they had the murder weapon or anyother important piece

of evidence. No one ever searched for evidence of other potential offenders in this case. What the

State and its agencies did was to place the burden of proof on Keven Young. Keven Young was

faced with the task of proving himself innocent.         This is a burden that is not required and this

Honorable Court should send a message to the State and her agents that it will not tolerate such

insufficient evidence.

           In Winfrey, the Court found that a "conclusion reached by speculation ... is not sufficiently

based on facts or evidence to support a finding beyond a reasonable doubt. Winfrey v. State, 393

S.W.3d 763, 772 (Tex. Crim. App. 2013) (citing Hopper v. State, 214 S.W.3d 9, 16 (Tex. Crim.

App. 2007). The evidence presented by the State centered around the testimony of the Chandler

sisters.    There is no independent evidence that connected Keven Young to the murder.             "Proof

amounting only to strong suspicion or mere probability is insufficient". King v. State, 638 S.W.2d

903,904 (Tex. Crim. App. 1982)(citing, Autry v. State, 626 S.W.2d 758 (Tex. Crim App. 1982).

As in the King case, "the evidence that the shooting may have been committed by another person is

not out of harmony with the evidence".         Id. The State failed to hold up its duty to throughly

investigate a crime through its agents. The evidence which was not collected or even searched for

leaves a stunning gap in the State's case. It is sad when the State does not do more to protect the

rights of every citizens of this State but instead allows its agents to rush to judgment and fails to hold

its agents to the task of investigating its case throughly and with complete candor toward insuring

that no innocent citizen will be incarcerated for an offense which he/she did not commit.


                                                     8
insufficient to support the verdict. Mueshler v. State, 178 S.W.3d 151,157 (Tex. App.--Houston

[1st. Dist.] 2005, pet ref'd); Burnett v. State, 179 S.W.3d 18,25 (Tex. App.-San Antonio 2005, no

pet.). Further, upon challenge of a verdict premised on factual sufficiency of the evidence to support

a conviction, the appellate court should review the evidence in a neutral light and ask whether the

State's evidence alone can support proof of guilt, if enough to prove guilt, taken alone, is it against

the great weight and preponderance of evidence. Miller v. State, 177 S.W.3d 177, 183 (Tex. App.--

Houston [1st. Dist.] 2005, no pet.).     Courts addressing factual insufficiency of evidence must

examine all evidence closely. Not only the evidence that tends to prove the appellate's guilt but also

that which negates it. Gomez v. State, 183 S.W.3d 86,88-89 (Tex. App.--Tyler 2005, no pet.);

Yarborough v. State, 178 S.W.3d 895, 904 (Tex. App.--Texarkana 2005, pet ref'd); McKinney v.

State, 177 S.W.3d 186, 191 (Tex. App.--Houston [1st. Dist.] 2005, aff'd on other grounds, 207

S.W.3d 366 (Tex. Crim. App. 2006). In examining the case, the courts should review not only the

testimony of witnesses for the defense but should also examine alternative hypothesis. See, Scott

v. State, 165 S.W.3d 27,39 (Tex. App.--Austin 2005, pet granted); West v. State, 121 S.W.3d 95,

111 (Tex. App.--Fort Worth 2003, pet ref'd). Finally, the reviewing court is authorized to disagree

with the jury determination.   Vodochodsky v. State, 158 S.W.3d 502,510 (Tex. Crim. App. 2005).

       In this case, none of the circumstantial evidence, separately or cumulatively, rise to the level

of beyond a mere speculation. The evidence is basically inconclusive because the investigators who

were charged with throughly investigating the offense, believed the Chandler sisters story and looked

no further. This could have been avoided had the investigating officers and detectives done their job.

This was nothing more than a rush to convict Keven Young. There was no investigation into the

telephone records of Keven Young, which the officers could have obtained very easily by subpoena.


                                                  7
                                    PRAYER FOR RELIEF

       WHEREIN, PREMISES CONSIDERED, Appellant respectfully prays that this Court grant

discretionary review and, after full briefing on the merits, issue an opinion reversing the court of

appeals judgment and remanding the cause to the trial court for a new trial.




                                                       Step en Wohr
                                                       State BarNo. 21844250
                                                       and
                                                       Katy R. Klinke
                                                       State Bar No. 00784406
                                                       Attorneys for Appellant
                                                       1417 E. McKinney, Suite 110
                                                       Denton, Texas 76209
                                                       (940) 382-4166

                                 CERTIFICATE OF SERVICE

       I hereby certify, by affixing my signature above that a true and correct copy of the foregoing

Petition/or Discretionary Review, was mailed through the U.S. Postal Service to the Office of Paul

Johnson, Criminal District Attorney, Denton County Courts Bldg., 1450 East McKinney, Denton,

Texas 76209 this   4-   day of December, 2014.            /


                                              -St-ep-h-e-~~~~o~hr~~=----------


                             CERTIFICATE OF WORD COUNT

       I certify that according to the computer generated word court the Petition for Discretionary

Review in the cause entitled "Keven Young v. The State of Texas"; Cause No. 02-13-00032-CR, the

word count is 3,345.
                                               !5~~
                                              K~inke


                                                 9
                         APPENDIX


Keven Youngv. State, No.02-13-00032-CR(Tex.   App.-Fort Worth, delivered
August 29, 2014)(unpublished).




                              10
