                                                                                ACCEPTED
                                                                           06-14-00166-CR
                                                                 SIXTH COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                                                                      3/31/2015 3:22:41 PM
                                                                           DEBBIE AUTREY
                                                                                    CLERK

                    IN THE COURT OF APPEALS
                                                           FILED IN
                     SIXTH DISTRICT OF TEXAS        6th COURT OF APPEALS
                                                      TEXARKANA, TEXAS
                                                    4/1/2015 10:43:00 AM
                       TEXARKANA, TEXAS                 DEBBIE AUTREY
                                                            Clerk
RODERICK KING
        Appellant

Vs                                    06-14-00166-CR

THE STATE OF TEXAS
         Appellee



                          ON APPEAL FROM

               THE 188TH JUDICIAL DISTRICT COURT

                      OF GREGG COUNTY, TEXAS

                      TRIAL COURT NO. 43416-A


                    BRIEF ON BEHALF OF APPELLANT


                                   TIM CONE
                                   State Bar #04660350
                                   P.O. Box 413
                                   Gilmer, Texas 75644
                                   (903) 725-6270
                                   e-mail: timcone6@aol.com

                                   ATTORNEY FOR THE APPELLANT
                                                     2




           IDENTITY OF PARTIES AND COUNSEL



RODERICK KING, #1955223
DIBOLL CORRECTIONAL CENTER
1604 SOUTH FIRST STREET
DIBOLL, TEXAS 75941
APPELLANT

ALEX TYRA
P.O. BOX 3653
LONGVIEW, TEXAS 75606
APPELLANT’S COUNSEL AT TRIAL


DEBBIE GARRETT AND CHRIS BOTTO, GREGG COUNTY ASSISTANT
CRIMINAL DISTRICT ATTORNEYS
101 E. METHVIN
LONGVVIEW, TEXAS 75601
APPELLEE’S COUNSEL AT TRIAL

TIM CONE
P.O. BOX 413
GILMER, TX 75644
APPELLANT’S COUNSEL ON APPEAL


ZAN BROWN
GREGG COUNTY ASSISTANT CRIMINAL DISTRICT ATTORNEY
101 E. METHVIN
LONGVIEW, TEXAS
APPELLEE’S COUNSEL ON APPEAL
                                                                                  3




                             TABLE OF CONTENTS

                                              Page No.
List of Parties and Counsel…………………………………………….       2

Table of Contents………………………………………………………                                     3

Index of Authorities……………………………………………………                                   4

Statement of the Case………………………………………………….                                  6

Point of Error Number One……………………………………………                                 7,12
      The evidence is insufficient to support a conviction.

Point of Error Number Two…………………………………………….                                8,14
      The trial court erred in overruling that the prosecutor’s argument
was improper.


Statement of Facts…………………………………………………….                                    8

Summary of Argument……………………………………………….                                     11

Conclusion and Prayer………………………………………………..                                  15

Certificate of Compliance…………………………………………….                                 16

Certificate of Service…………………………………………………                                   16
                                                                 4




                          INDEX OF AUTHORITIES


                                                          PAGE


STATE CASES:

Brooks v. State, 323 S.W. 3d 893 (Tex.Crim.App. 2010)     12
Brown v. State, 692 S.W. 2d 497 (Tex.Crim.App. 1985)      14
Jackson v. State, 17 S.W. 3d 664 (Tex.Crim.App. 2000)     14
Johnson v. State, 364 S.W. 3d 292 (Tex.Crim. App. 2012)   14
Johnson v. State, 23 S.W. 3d 1 (Tex.Crim.App. 2000)       12
Lane v. State, 151 S.W. 3d 188(TexCrim.App. 2004)         12
Malik v. State, 953 S.W. 2d 234 (Tex.Crim.App. 1997)      13
Young v. State, 14 S.W. 3d 748 (Tex.Crim.App. 2000)       12
                                                                                           5




                                 NO. 06-14-00166-CR

                                        IN THE

                                COURT OF APPEALS

                                       FOR THE

                      SIXTH JUDICIAL DISTRICT OF TEXAS


                          RODERICK KING,
                                                 APPELLANT
                                          VS.

                               THE STATE OF TEXAS
                                            APPELLEE




TO THE HONORABLE JUSTICES OF SAID COURT:


      COMES NOW, the Appellant by and through his Attorney, namely Tim Cone,

hereinafter referred to as Appellant, and submits this brief in support of reversing the

judgment and sentence pursuant to the provisions of the Texas Rules of Appellate

Procedure in Cause No. 06-14-00166-CR in the 188th Judicial District Court of Gregg

County, Texas, (Trial Court Cause No. 43,416-A).
                                                                                          6




                           STATEMENT OF THE CASE


      On January 30, 2014, Roderick King was indicted by the Gregg County Grand

Jury for the offense of Assault Family Violence Enhanced, a third degree felony.

CR1. The indictment was a two paragraph indictment, with the only difference in the

two paragraphs being the Cause Number of the underlying misdemeanor Assault

Family Violence offense that enhanced the present offense to a felony. At trial, the

State abandoned the first paragraph and proceeded to trial on the second paragraph

(Paragraph B).CR1, 4RR12.

      On July 17, 2014, a hearing was held based on the Appellant’s request that his

bail be reduced.2RR. The request was denied.2RR21. On August 15, 2014, a status

hearing was held in which the Appellant testified he wanted to forego the services of

an expert and proceed to trial.3RR6. He also testified he rejected a plea bargain offer

of a seven year probation with SAFP.3RR12.

      On August 25, 2014, the jury was selected.4RR. Prior to jury selection, the

State filed a notice of an enhancement allegation, raising the possible level of

punishment to a second degree felony.CR14,4RR9. The record shows the Appellant’s

trial attorney was aware of the State’s intention in this regard as of August 15,

2014.4RR10,11.
                                                                                          7


      On August 26, 2014, trial began and ended.5RR. The jury found the Appellant

guilty of the felony set out in the indictment.5RR153. At the punishment phase of the

trial, the Appellant pled true to the enhancement allegation, making the offense a

second degree felony.6RR12. The jury assessed punishment at seven years

confinement in TDCJ-ID.6RR36. No fine was assessed. The Appellant now appeals

this judgment of conviction.

      It should be noted that the disk of the clerk’s recorded provided to prepare this

brief does not contain page numbers. It is in PDF format and has item numbers but

no page numbers. The numbers used in this brief are the item numbers as there are

no page numbers noted.



      For clarity, THE STATE OF TEXAS will be referred to as “the State”, and

Roderick King will be referred to as “Defendant” or “Appellant.”




                               ISSUES PRESENTED
                                                                                         8




                        POINT OF ERROR NUMBER ONE


      The evidence is insufficient to support a conviction.


                         POINT OF ERROR NUMBER TWO


      The trial court erred in overruling that the prosecutor’s argument was improper.




                          STATEMENT OF THE FACTS

       As sufficiency of the evidence is a point of error, a rendition of the evidence

produced at trial is necessary. The trial was relatively brief, however. The State called

four witnesses-the complaining witness (Joyce Dawkins), her brother (George

Sanders), the first police officer on the scene (Suzzanne Hardee), and the police

investigator (Trevor Yates). There was some discussion as to whether the Appellant

would testify at trial, but, ultimately, he did not and he called no witnesses during

either phase of the trial.5RR114-119.

      The complaining witness, Joyce Dawkins, testified she and the Appellant lived

together at her home and her brother, George Sanders, also lived in the home as the

only other resident.5RR21,22. Ms. Dawkins testified she came home from work on
                                                                                          9


November 15, 2013, and was tired.5RR23. Although she initially indicated her

relationship with the Appellant was platonic, she later described the relationship as a

dating relationship.5RR22. Ms. Dawkins testified she tried to lay down in the

bedroom and an argument ensued between her and the Appellant.5RR24. She did

admit she was upset regarding another woman she thought was a girlfriend of the

Appellant.5RR29. She testified she left the bedroom and went to the dining room

when the Appellant turned on a fan in the bedroom, which was an action that irritated

her.5RR24. Ms. Dawkins testified she was in the bedroom when her brother came

home but he later testified she was in the dining room when he came home and went

to his own room.5RR39,53. Nonetheless, at some point, the Appellant entered the

dining room and, according to Ms. Dawkins, the argument turned into a physical

confrontation.5RR24. While the description of the physical aspect of the incident

varied at different times in the testimony, it seems clear Ms. Dawkins forehead and

arm received bodily injury as a result.5RR25. Although the indictment set out an

allegation that the injury was caused by the Appellant striking her with his hand, Ms.

Dawkins could not describe how she received her injuries.5RR32,33. In fact, she

testified that the striking of her by the Appellant’s hand was not hard enough to cause

the injuries she received.5RR32. Ms. Dawkins testified she did not know how she got

the knot on her head.5RR32. Ms. Dawkins called the police and the Appellant left

the residence, as she had wanted him to do.5RR40,43. Ms. Dawkins told the officer
                                                                                          10


who came to the scene, Suzzanne Hardee, that the injury to her head hurt a little but

“not too bad.” 5RR79. Ms. Dawkins testified she had signed an affidavit of non-

prosecution and never expected the matter to go as far as it did.5RR44.

      George Sanders, Ms. Dawkins’ brother testified he came home and his sister

was seated in the dining room.5RR53. He went to bed and then heard a commotion,

went to the dining room and the altercation between the Appellant and Ms. Dawkins

stopped.5RR50-54. Ms. Dawkins called the police and the Appellant left.5RR60. Mr.

Sanders did not see any of the altercation and did not really know what

happened.5RR61. He did testify his sister was unhurt when he came home and she

received the injuries before he came out of his room after hearing the

commotion.5RR61.

      The police officer at the scene, Suzzanne Hardee testified she saw the injuries

of Ms. Dawkins, which qualify as bodily injury.5RR66,67. Ms. Dawkins refused any

medical treatment and did not request an Emergency Protective Order.5RR79,82. She

also took pictures of the injuries. State’s Exhibit 2, 2A. The State’s last witness was

Detective Trevor Yates, to whom the case was assigned for follow-up investigation.

5RR94.He tried telephoning the Appellant and sending a letter to the Appellant at

Ms. Dawkins’ residence-a place he ceased to reside as of the night of the incident.

5RR98,99.The detective testified the case was of a low priority and he never talked to

the Appellant or made any significant effort to locate him.5RR106;5RR94-106.
                                                                                         11


      During closing arguments, the State made an argument that referred to an

example made regarding causation the Appellant’s trial counsel used during jury

selection and then showed the Appellant made no production of evidence at trial

regarding causation.5RR134. The Appellant’s trial attorney objected to the improper

argument as an effort to shift the burden of proof to the accused at trial.5RR134. The

trial court overruled the objection while stating the burden of proof is on the

state.5RR134. After arguments, the jury convicted the Appellant of the allegation set

forth in the indictment.5RR153.

      During the punishment phase of the trial, the Appellant pled true to the

enhancement allegation that elevated the offense to a second degree felony and he

stipulated to other prior convictions.6RR12,14. After arguments, the jury assessed a

sentence of seven years confinement in TDCJ-ID.6RR36.




                        SUMMARY OF THE ARGUMENT

      The indictment is quite specific in setting out an allegation that the Appellant

caused Ms. Dawkins bodily injury by striking her with his hand-specifically, that the

hand caused the injury. At trial, the evidence did not show how Ms. Dawkins injuries
                                                                                         12


were received. In fact, Ms. Dawkins specifically testified that the striking of her by

the Appellant’s hand was not severe enough to cause the injuries she received. The

evidence, therefore, is insufficient to support the verdict.

      There are only specific areas of proper jury argument allowed to be made by

the State during closing arguments. The argument made by the State clearly was an

attempt to shift the burden of proof to the Appellant, which is an improper argument.

The objection made by Appellant’s trial counsel was overruled. This ruling is error

and the harm caused by the attempt to improperly shift the burden is shown by the

verdict in a case where the Appellant produces no evidence through exhibits or

witnesses.



                        POINT OF ERROR NUMBER ONE

      The evidence is insufficient to support a conviction.

                                     ARGUMENT

       The proper analysis for sufficiency of the evidence is that the evidence will be

viewed in the light most favorable to the verdict to determine whether any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010); Johnson v. State, 23

S.W.3d 1 ((Tex.Crim.App. 2000); Lane v. State, 151 S.W.3d 188 (Tex.Crim.App.

2004); and Young v. State, 14 S.W.3d 748 (Tex.Crim.App. 2000). Legal sufficiency
                                                                                          13


is also measured by the elements of the offense as defined by a hypothetically correct

jury charge. Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997).

      Analyzing the case at bar under the above authorities, the evidence is

insufficient for a rational trier of fact to find the essential elements of the offense

beyond a reasonable doubt regarding the offense as set out in the indictment. As set

out in the statement of facts, the only evidence produced at trial regarding how the

injuries to Ms. Dawkins were incurred was the testimony of Ms. Dawkins, herself.

Her testimony clearly established that she did not know how her injuries were

inflicted but she did not believe the blows from the Appellant’s hand were strong

enough to inflict the injuries. The indictment did not set out an allegation that the

Appellant caused the injuries in some manner unknown, that they were received

during an altercation, or that Ms. Dawkins was injured when she hit her head as she

fell during the incident. The indictment is quite specific in requiring the State to

prove beyond a reasonable doubt that the injuries were caused by the strikes from the

hand of the Appellant. The State’s evidence not only does not support the allegation,

the evidence established that the injuries were received in a manner other than the

method set out in the indictment. Should this matter be reviewed as a variance issue,

the variance between the allegation is certainly material and, therefore, requires

reversal. Johnson v. State, 364 S.W.3d 292 (Tex.Crim.App. 2012). Simply stated, no
                                                                                      14


rational trier of fact could find beyond a reasonable doubt that the injuries Ms.

Dawkins received were from the Appellant striking her with his hand.



                       POINT OF ERROR NUMBER TWO



      The trial court erred in overruling that the prosecutor’s argument was improper.



                                    ARGUMENT




      There are four proper areas of jury argument by the State. They are: (1)

summation of the evidence presented at trial, (2) reasonable deduction drawn from

that evidence, (3) answer to opposing counsel’s arguments, or (4) a plea for law

enforcement. Jackson v. State, 17 S.W.3d 664 (Tex.Crim.App.2000); Brown v. State,

692 S.W.2d 497 (Tex.Crim.App. 1985). At trial, during the closing argument made

by the State, the prosecutor made a specific reference-not to opposing counsel’s

argument-but to a specific example about drawing erroneous conclusions that counsel

utilized to make a point during jury selection. The specific argument made by the

prosecutor strongly suggested that the Appellant had brought no evidence of how Ms.

Dawkins received her injuries from the Appellant. This argument clearly invited the
                                                                                         15


jury to consider that the Appellant presented no evidence along these lines. A timely,

specific objection was made by Appellant’s trial counsel as to the improper argument.

Although the trial court instructed the jury the burden of proof was on the State, the

objection was overruled. The ruling on the objection was completely at odds with the

court instruction. The only logical deduction the jury could make was that the

prosecutor’s argument was correct-even though it was improper. Since the case was

one that completely relied on the State’s failure to meet their burden, the court’s

failure to sustain the objection and immediately instruct the jury the prosecutor’s

argument was improper harmed the Appellant. The ruling by the trial court was error

and not harmless.




                        CONCLUSION AND PRAYER


      For the reasons herein alleged, the judgment and sentence of the trial court

should be reversed and an acquittal rendered or, in the alternative, reversed and

remanded for a new trial.

                                              Respectfully submitted,
                                                                                        16




                                               /s/Tim Cone
                                               ____________________
                                               TIM CONE
                                               Attorney At Law
                                               P.O. Box 413
                                               Gilmer, Texas 75644
                                               e-mail: timcone6@aol.com
                                               ATTORNEY FOR APPELLANT

                        CERTIFICATE OF COMPLIANCE

       I certify that the foregoing document complies with Texas Rules of Appellate
Procedure, Rule 9 regarding length of documents, in that exclusive of caption,
identity of parties and counsel, statement regarding oral argument, table of contents,
index of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service, certification,
certificate of compliance, and appendix, it consists of 1570 words.



                                               /s/Tim Cone
                                               ______________________

                                               TIM CONE
                                               ATTORNEY FOR APPELLANT




                           CERTIFICATE OF SERVICE
                                                                                       17


       This is to certify that a true and correct copy of the foregoing Appellant’s Brief
has been provided to the Honorable Zan Brown, Gregg County Assistant Criminal
District Attorney on March 31, 2015.

                                              /s/Tim Cone
                                              _____________________________
                                              TIM CONE
                                              Attorney At Law
