      PD-1331&1332-15

                    In the
      Court of Criminal Appeals of Texas

Cause Nos. 01-14-00744-CR & 01-14-00745-CR
                     In the
 Court of Appeals for the First District of Texas
                  at Houston

       Cause Nos. 1326112 and 1383738
          In the 248th District Court
           Of Harris County, Texas


       ARTAVIOUS DEON HOLLINS
              Appellant

                       v.

           THE STATE OF TEXAS
                 Appellee


 PETITION FOR DISCRETIONARY REVIEW



                                      Casey Garrett
                                      4010 Bluebonnet, Ste. 204
                                      Houston, Texas 77025
                                      (713) 228-3800
                                      Texas Bar No. 00787197




October 9, 2015
                                          TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................ 2

INDEX OF AUTHORITIES........................................................................................... 3

STATEMENT REGARDING ORAL ARGUMENT ..................................................... 4

STATEMENT OF THE CASE....................................................................................... 4

STATEMENT OF PROCEDURAL HISTORY ............................................................. 4

QUESTIONS PRESENTED FOR REVIEW ................................................................. 5

REASONS FOR REVIEW ............................................................................................. 5

PRAYER ....................................................................................................................... 10

CERTIFICATE OF SERVICE ......................................Error! Bookmark not defined.




                                                             2
                                  INDEX OF AUTHORITIES
Cases

Cantu v. State, 395 S.W.3d 202 (Tex. App.—Houston [1st Dist.] 2012) ........................... 8

Forest v. State, 989 S.W.2d 365, 368 (Tex. Crim. App. 1999) .......................................... 8

Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002) ............................................. 6




                                                   3
                STATEMENT REGARDING ORAL ARGUMENT

       Oral argument would not be helpful to the resolution of this case.

                           STATEMENT OF THE CASE

       Mr. Artavious Hollins was charged by indictment with the felony offense of

murder (R.R.3 – 14). He was also indicted with the felony offense of tampering

with evidence (R.R.3 – 14). Mr. Hollins pled not guilty to both of the charges and

the cases were tried together before a jury (R.R.3 – 14). The jury found Mr.

Hollins guilty of murder and guilty of tampering with evidence (C.R. 308). The

jury assessed punishment at confinement for life in the Texas Department of

Criminal Justice, Institutional Division, in the murder case. The jury assessed

punishment at confinement for twenty-five years in the Texas Department of

Criminal Justice, Institutional Division, in the tampering case. Mr. Hollins filed

timely notice of appeal.



                  STATEMENT OF PROCEDURAL HISTORY

       The Court of Appeals filed a memorandum opinion affirming both

convictions on August 27, 2015. No motion for rehearing was filed. Pursuant to

Rule 68.2 of the Texas Rules of Appellate Procedure, this Petition for

Discretionary Review should be filed thirty days after the day the court of appeals

filed its opinion. A motion for extension of time was filed within fifteen days of

the due date.


                                         4
                    QUESTIONS PRESENTED FOR REVIEW

           Is evidence sufficient to support a murder conviction when the
           witnesses for the State and the defense agree that the accused was not
           the aggressor, the accused repeatedly declined to fight with the
           complainant and retreated into his home, the complainant went into his
           home after instigating a yelling match with him, and the accused neither
           intended nor even knew the complainant had been shot?

           Is evidence sufficient to support a conviction for tampering when the
           testimony showed the accused discarded clothing and a weapon in close
           proximity to the location where the incident took place, and no
           evidence indicated by words or deeds that accused intended to conceal
           or alter evidence?



                             REASONS FOR REVIEW

       The decision of the court of appeals conflicts with applicable
       decisions of the Court of Criminal Appeals and the Supreme Court
       of the United States.


               APPELLANT’S FIRST QUESTION FOR REVIEW

           Is evidence sufficient to support a murder conviction when the
           witnesses for the State and the defense agree that the accused was not
           the aggressor, the accused repeatedly declined to fight with the
           complainant and retreated into his home, the complainant went into his
           home after instigating a yelling match with him, and the accused neither
           intended nor even knew the complainant had been shot?

       To sustain a conviction for murder the evidence must demonstrate that the

person (1) intentionally or knowingly (2) caused the death of an individual. Tex.

Penal Code Ann. sec. 19.02 (b) (1). A person acts “intentionally” or with intent

with respect to the nature of his conduct or to a result of his conduct when it is “his

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



                                          5
Penal Code Ann. sec. 6.03(a); Wise, 364 S.W.3d at 903. A person acts knowingly

or with knowledge of the nature of his conduct or circumstances “when he is

aware of the nature of his conduct or that the circumstances exist.” Tex. Penal

Code Ann. sec. 6.03(b).S.W.3d at 659-62; Wiley v. State, 74 S.W.3d 399, 405

(Tex. Crim. App. 2002).

       In the instant case, all the witnesses agreed, both the witnesses for the State

and the ones for the defense, that Shae instigated a conflict between Mr. Hollins

and Derrick Williams and Mr. Hollins repeatedly retreated into his apartment from

this conflict. Tranea Jones and Andre Lewis both testified that Mr. Hollins initially

got into a verbal argument with Shae, but he consistently retreated into his

apartment any time the argument escalated or any time it looked like someone was

trying to take it to the next level. All the witnesses agree that Shae called D over to

the complex to harass and Mr. Hollins and damage his apartment, and everyone

agreed Shae and D threw rocks, sticks and other items at the doors and windows of

the apartment, taunting him to come out. Lewis, Jones and Mr. Hollins all testified

that Mr. Hollins stayed securely inside his apartment on that occasion.

       On the day of the shooting, likewise all the witnesses’ agree that Mr.

Hollins did not start or cause any arguments and that Shae, Williams and Lewis

were being aggressive toward Mr. Hollins. Mr. Lewis testified that every time Mr.

Hollins would begin to come out toward the courtyard and the other residents

began escalating the fight or walking toward him, he would immediately retreat

back into his home. Tranea Jones testified that Derrick Williams threatened to


                                          6
“whoop his behind,” and Mr. Hollins continued to retreat until eventually he began

saying things like, “well, come on, come on then,” and eventually said, “come into

my house.” Tranea Jones referred to this statement as an “invitation,” but her

testimony made clear that she understood it to be in the nature of a dare, more of a

way to call the bluff of Derrick Williams and Andre Lewis by daring them to

follow Mr. Hollins into his own home. In fact, Tranea got Andre Lewis involved

because she could tell that Derrick Williams was pursuing the conflict and heading

toward Mr. Hollins’ apartment.

       All the witnesses testified that there was a struggle for a gun inside Mr.

Hollins’ apartment. Tranea Jones testified, “I was already around there because

when Artavious realized that he had shot Derrick – because I don’t think

Artavious knew he shot Derrick until he seen Derrick when Derrick said, “it didn’t

have to go like this.” (R.R.3 – 167). Mr. Hollins also testified he didn’t know if

anyone was hurt when he ran away from the scene. He knew the gun had gone off,

and he knew Derrick Williams had fallen somewhere outside of his apartment, but

he was not aware that Derrick Williams had been shot.

       Despite the inconsistencies in testimony, the witnesses at trial made several

things clear: 1) Mr. Hollins was not the aggressor in any of the incidents at Casa

Nube Apartments; 2) Mr. Hollins repeatedly declined to fight with the neighbors

who were trying to instigate a conflict and instead retreated into his home; 3)

Derrick Williams and Andre Lewis went into his home in the midst of a yelling

match when at least one other resident believed a fight was about to start; and 4)


                                         7
Mr. Hollins did not intend to shoot or even know he’d shot Derrick Williams after

the tussle in his apartment.

       Firing a gun in the direction of an individual is an act clearly dangerous to

human life within the meaning of the murder statute. Forest v. State, 989 S.W.2d

365, 368 (Tex. Crim. App. 1999). Struggling for control of a gun, however, when

two aggressors have followed you into your own apartment after days of verbal

harassment and property damage, is not an act clearly dangerous to human life. In

Cantu v. State, 395 S.W.3d 202 (Tex. App.—Houston [1st Dist.] 2012), this Court

rejected the defendant’s claims that the gun was accidentally discharged while he

tried to take it from the defendant. In that case, however, expert testimony showed

that the defendant had staged the evidence. In the instant case, by contrast, even

the State’s own witnesses believed the gun accidentally discharged, and all the

witnesses agreed that the complainant and Mr. Hollins struggled for control of the

gun.

              APPELLANT’S SECOND QUESTION FOR REVIEW

           Is evidence sufficient to support a conviction for tampering when the
           testimony showed the accused discarded clothing and a weapon in close
           proximity to the location where the incident took place, and no
           evidence indicated by words or deeds that accused intended to conceal
           or alter evidence?

       The evidence must demonstrate that the person (1) knowing that an

investigation or official proceeding is pending or in progress (2) alters, destroys or

conceals any thing with intent to impair its availability as evidence. Tex. Penal

Code Ann. sec. 37.09(a). (West 2014). A person acts “intentionally” or with intent


                                          8
with respect to the nature of his conduct or to a result of his conduct when it is “his

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

Penal Code Ann. sec. 6.03(a); Wise, 364 S.W.3d at 903. A person acts knowingly

or with knowledge of the nature of his conduct or circumstances “when he is

aware of the nature of his conduct or that the circumstances exist.” Tex. Penal

Code Ann. sec. 6.03(b).

       Officer Christopher Castellani testified he was in pursuit of a man wearing

a white shirt and a black hat (R.R.3 – 48). He said another officer found a white

shirt and a black hat in a different location (R.R.3 – 48). He said later that day a

dog found a firearm in the bushes not far from where the shirt and hat were found

(R.R.3 – 54). The dog found a pink Palmer frame pistol with a black slide (R.R.3 –

71). The distance between the pistol and the clothing was a matter of seconds on

foot (R.R.3 – 71). A tank top style tshirt was found at the scene (R.R.3 – 94). All

the items were in the vicinity and very close to the apartment complex where the

shooting took place (R.R.3 – 101).

       The investigating officers found all of the evidence in locations very close

to where Mr. Hollins had been confronted by a group of angry neighbors. The

evidence merely showed that he discarded the evidence as he fled the scene, not

that he concealed or altered or otherwise attempted to prevent the investigation

from proceeding. To the contrary, investigators found a tank top next to the body

of Derrick Williams. The pistol in this case was found steps from where Mr.

Hollins’ other clothing was found. The State was unable to demonstrate that Mr.


                                           9
Hollins concealed any evidence and unable to demonstrate that he intended to

conceal any evidence. The evidence at trial was legally insufficient to support a

conviction for tampering and the case should be reversed and Mr. Hollins should

be acquitted.




                                     PRAYER

       Appellant respectfully prays this Honorable Court to grant his petition for

discretionary review.



                                                 Respectfully submitted,



                                                 ____/s/ Casey Garrett____
                                                 Casey Garrett
                                                 4010 Bluebonnet, Ste. 204
                                                 Houston, Texas 77025
                                                 (713) 228-3800
                                                 Texas Bar No. 00787197




                                         10
                          CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been supplied

to the Harris County District Attorney’s Office in accordance with the rules of

appellate procedure.




                                                ____/s/ Casey Garrett____
                                                Casey Garrett
                                                4010 Bluebonnet, Ste. 204
                                                Houston, Texas 77025
                                                (713) 228-3800
                                                Texas Bar No. 00787197




                                        11
                    In the
      Court of Criminal Appeals of Texas

Cause Nos. 01-14-00744-CR & 01-14-00745-CR
                     In the
 Court of Appeals for the First District of Texas
                  at Houston


       ARTAVIOUS DEON HOLLINS
              Appellant

                       v.

           THE STATE OF TEXAS
                 Appellee


      CERTIFICATE OF COMPLIANCE



                              Casey Garrett
                              4010 Bluebonnet, Ste. 204
                              Houston, Texas 77025
                              (713) 228-3800
                              Texas Bar No. 00787197
      This is the certify that the Petition for Discretionary Review filed in

the above-numbered cause has 1,910 words in compliance with Rule 9 of the

Texas Rules of Appellate Procedure.




                                              ____/s/ Casey Garrett____
                                              Casey Garrett
                                              4010 Bluebonnet, Ste. 204
                                              Houston, Texas 77025
                                              (713) 228-3800
                                              Texas Bar No. 00787197
