                                                                              ACCEPTED
                                                                          01-15-00483-CR
                                                               FIRST COURT OF APPEALS
                                                                       HOUSTON, TEXAS
                                                                    8/11/2015 11:55:53 AM
                                                                    CHRISTOPHER PRINE
                                                                                   CLERK

                   NO. 01-15-00483-CR

                         N THE                    FILED IN
                                           1st COURT OF APPEALS
                                               HOUSTON, TEXAS
                  COURT OF APPEALS         8/11/2015 11:55:53 AM
                                           CHRISTOPHER A. PRINE
       OF THE FIRST SUPREME JUDICIAL DISTR工CT       Clerk




                  WILLIE MCDOWELL,
                             Appel lant


                             V.

                  THE STATE OF TEXAS




                Appeal in Cause No. 1439664


                   In the 182nd Court Of


                    Harris County, Texas




                  BRIEF OF APPELLANT



                             Hattie Sewell Shamon
                             Attomey For Appellant
                             6750 West Loop South, Suite 825
                             Be11aire, Texas 77401
                             (832) 767-1498
                             TBN 13155700
ORAL ARGUMENT WAIVED         FAX (832) 767-1506
                      IDENTIFICATION OF THE PARTIES


      Pursuant to Tex. R. App. P. 38.1(a), a COmPlete list ofall parties to the


trial court’s judgment or order appealed from, and the names and addresses




Of all trial and appellate counsel.


      Appellant or criminal defendant:


             Willie McDowe11

Trial Counsel:


             Lott Brooks
             1314 Texas Street, Suite 710
             Houston, Texas 77002


      Appellate Counsel :


             Hattie Sewell Sharmon
             6750 West Loop South, Suite 825
             Bellaire, Texas 77401


      Counsel for the State:


             Andrea Handley
             1201 Franklin
             Houston, Texas 77002


      Trial Judge :


             The Honorable Jearmine Barr
                          TABLE OF CONTENTS


                                              PAGE


IDENTIFICATION OF PARTIES



TABLE OF CONTENTS                               町i




INDEX OF AUTHORITIES                            闇


PRELIMENARY STATEMENT                           1




STATEMENT OF THE CASE                           1




IS SUE PRESENTED                                2



     Whether the Trial Court Erred In
     Denying Appellant’s Motion For

     Instructed Verdict


STATEMENT OF FACTS                              2



SUMMARY OF THE ARGUMENT                         2



ARGUMENT                                        3



PRAYER                                          10


 CERTIFICATE OF SERVICE                          間
                        INDEX OF AUTHORITIES




CASE                                           PAGE


Bonham v. State
680S.W.2d815,819
(Tex. Crim. App. 1984), Cert. denied
474U. S. 865 (1985)

Jackson v. Virginia
      443U. S.307,319,
      99 S. Ct2781, 2788-89 (1979)

Johnson v. State                                 10
      23S.W.3dl,11
      (Tex. Crim. App. 2000)

King v. State
      29S.W.3d556,562
      (Tex. Crim. App. 2000)

Madden v. State
      799S.W.2d683
      (Tex. Crim. App. 1990)

Wilson v. State
      654S.W.2d465,471
      (Tex. Crim. App. 1983)
                          NO. 01-15-00483-CR

                                 IN THE


                         COURT OF APPEALS


            OF THE FIRST SUPREME JUDICIAL DISTRICT




                        WILLIAM MCDOWELL,
                                     Appellant


                                     V.

                         THE STATE OF TEXAS




                       Appeal in Cause No. 1439664

                           In the 182nd Court Of

                            Harris County, Texas




                          BR工EF OF APPELLANT


TO THE HONORABLE COURT OF APPEALS:

      Comes now Willie McDowell, hereinafter referred to as Appella血,



and submits this briefpursuam to the Texas Rules of Appellate Procedure.


                       STATEMENT OF THE CASE

       The Appe11ant was indicted for the felony offense of aggravated


robbery with a deadly weapon・ (CR. I - 8)・ To the charge, Appe11ant
entered a plea of not guilty. (RR. IⅡ - 8). The jury found Appellant was




guilty as charged in the indictment. (RR. IV - 32). The Court assessed

Appellant’s punishment at confinement in the Institutional Division of the



Texas Department of Criminal Justice for a period ofthirty-five years. (RR.


V - 42). Appe11ant乱ed a timely written notice ofappeal. (CR. 240).



                            ISSUES PRESENTED


      Whether The Trial Court Erred In Denying Appe11ant’s Motion



                            For Instructed Verdict


                          STATEMENT OF FACTS

      Pursuant to TEX. R. APP. P. 38.1(f), the Appe11ant states the


following facts pertinent to the issues presented:


      It was alleged that Appeuant and another unknown individual entered


complainant,s apartment on or about November 23, 2012, and robbed her at


gunpoint・ However’Appellant,s宜ngeIPrints were not on any items



recovered including the fiream.

                     SUMMARY OF THE ARGUMENT

      Appe11a血submits that the evidence presented by the state failed to



prove beyond a reasonable doubt that he committed the offchse of


aggravated robbery. There was no physical proof whatsoever’and the



testimony of the witnesses was inconsistent in substantially every mamer.




                                       2
                               ARGUMENT

      The indictment alleged that Appe11ant:


      . ‥ On Or about November 23, 2012, did then and there unlawfully,



      While in the course of committing theft of property owned by Itashia


      Cordin, and with intent to obtain and maintain controI of the property,


      intentiona11y and knowingly threaten and place Itashia Cofoin in fear


      Of imminent bodily ir互ury and death, and the Defendant did then and



      there use and exhibit a deadly weapon, namely, a fiream.

      The State’s evidence presented at trial does not support a宜nding of




guilt in an aggravated robbery case. The State had血e burden of provmg



beyond a reasonあle doubt that Appe11a血COmmitted the aggravated robbery



on   November 23,    2012.   The   evidence    presented   was   testimony   of



complainant and two o純cers. Complainant tes舶ed that she had never seen



Appe11ant, and that she had seen Appellant at least one time before the


alleged incident・ Both camot be true. She tes舶ed in part as fo11ows:


       短DEFENSE COUNSEL: And I血ink it,s your testimony that you had



       never seen this man before?


       ITASHIA CORBEN: No.


       DEFENSE COUNSEL: You had never seen him before?

       ITASHIA CORBIN: Never seen him before.
     DEFENSE COUNSEL: Okay. Now correct me if I’m wrong, yOu



     had told the police o触cer that you thought you might have seen him



     SOmeWhere around the apartments. Is that true or not true?


     ITASHIA CORBEN: Yes, Walking around our apartments.



     DEFENSECOUNSEL: Okay. So you think you had seen him

     before?


     ITASHIA CORBIN: Yes.


     DEFENSE COUNSEL: All right. But you just told the ladies and


     gentlemen ofthe jury that you had never seen him before, right?


     ITASHIA CORBEN: Right, but I seen him before一-.



     DEFENSE COUNSEL: But in fact ○ ○



     ITASHIA CORBEN:  - - One time.



     DEFENSE COUNSEL: In fact, yOu had seen him before, hadn’t



     you?


      ITASHIA CORBIN: Yes.” (CR. IⅡ - 50, 51).



      There was also very mCOnSistent testimony from Itashia Corbin,


COmPlainant, regarding her a11eged confrontation w皿Appellant at her



apartment・ She testified during cross examination in part as follows



COnCeming the confrontation.




                                    4
     “DEFENSECOUNSEL‥ Well, nOW, yOu tOld the ladies and




     gentlemen of the jury that he shot in the air and you said, “Boom,



     boom, boom.”



     ITASHIA CORBIN: Yes. I was ruming behind him・



     DEFENSE COUNSEL: Okay.

     ITASHIA   CORBEN: He   tumed   around     and    he   shot   in   the    air,



     boom, boom, boom.


     DEFENSE COUNSEL: All right. So he didn’t shoot at you?



     ITASHIA CORBEN: No, he didn’t shoot at me.



     DEFENSE COUNSEL: Okay. And how many times did the gun


     宜re?



     ITASHIA CORBIN: Maybe like three.



     DEFENSE COUNSEL: Are you sure?

     ITASHIACORBIN: Yes,      tO   try   tO   SCare   me    SO    I   could   stop



     Chasing him.


     DEFENSE COUNSEL: Are you sure it was three times?

     ITASHIA CORBIN: Yes, Sir. I’m sure it was three times.” (RR.



     IⅡ-58, 59).



     All of this creates reasonable doubt as to whether there was an


aggravated robbery at all against Itashia Corbin. O餌cer Paul Lowrey
testified during direct examination as follows concemmg the a11eged


gun shot/gun s hots :

       “PROSECUTOR: Did she tell you how many rounds were宜red at



       her?


       PAUL LOWERY: I think she stated one. Let me check my report.

       PROSECUTOR: Would it help you refresh you recollection,

       O綿cer, tO reView your report for that?



       PAUL LOWREY: Yes, ma’am.


       PAUL LOWREY: Fired one round.” (RR. IⅡ - 88).



       Complainant’s testimony concemmg how Appellant entered her



apartment was also told in different versions. There should have been doubt


concemmg an actually robbery occumng. During cross examination, Itashia


Corbin testi宜ed in part as follows.


       “PROSECUTOR: Okay. Tell the ladies and gentlemen of the jury:




       Whatうif anything happened about that time?



        ITASHIA CORBIN: I heard a knock on the door. I didn’t look



        outside. I was like,負Maybe it’s my friends or somebody." So, I



        opened the door. It was two black males that came to the door・” (RR.



        IⅡ-21).




                                      6
      However, during cross examination of O能cer Paul Lowery, he



testified conceming the alleged entry of Appellant into Complainant’s



apartment. That testimony was in part as follows:

      “DEFENSE COUNSEL: Okay. And you were told that Ms. Corbin



      had heard a noise?


      PAUL LOWREY: Yes, Sir.

      DEFENSE COUNSEL: Okay. Now, did she describe the noise for


      you? Or what understanding did you come to what kind ofnoise was

      this?


      PAUL LOWREY: A thud is what I thought.

      DEFENSE COUNSEL: Okay. And then the door burst open?

      PAUL LOWREY: It did.

      DEFENSE COUNSEL‥ Okay. So she never reported to you that she



      in fact opened the door, did she?


      PAUL LOWREY: No, Sir.

      DEFENSE COUNSEL: All right. She told you that someone kicked


      the door in, Or that is the impression that she gave you.


      PROSECUTOR: We11, I’m going to object, yOur Honor・ That’s a



      misrepresentation ofthe facts or any testimony in this case that a door


      WaS kicked open.




                                       7
      THE COURT: We11, I’11 ask you to rephrase your question.



      DEFENSE COUNSEL: Okay.

      DEFENSE COUNSEL: What was your understanding of how the

      door was opened?


      PAUL LOWREY: I -I -I’m not sure血at I rea11y know. I’m not sure



      that the complainant knew. From the way I understood it, She heard a


      thud and then saw two suspects come through the door.” (RR. IⅡ -



      104, 105).


      Paul Lowery also testi宜ed during direct examination conceming the



alleged entry into the apartment as follows:


      “PROSECUTOR: Would you tell the ladies and gentlemen of the




      jury then what is it that Ms. Corbin told you血en at that point?



      PAUL LOWREY: She told me that she was at home and she had her

      daughter there and she heard something at the front door. All of a


      Sudden the door burst open.” (RR. - 86, 87).



Both versions certainly could not have been true. Again, the created


reasonable doubt. Marion Williams Green, a retired sergeant with the

Houston Police Department, further testified that Appellant’s fingerprints



Were nOt located in the vehicle which had been described in the robbery nor


On the gun that was allegedly used. Yet the Court did not grant Appellant’s




                                      8
motion for an instructed verdict・ There were basically two versions to all of



Complainant’s testimony.



      The critical inquiry invoIved in the review of factual su純ciency lS



Whether, after viewing the evidence in a light most favorable to the


PrOSeCution, any rational trier of fa,Ct COuld have found the essential elements


Ofthe crime beyond a reasonable doubt. Bonham v. S幼te, 680 S. W. 2d 815,



819 (Tex・ Crim. App. 1984), Cert. denied, 474 U. S. 865 (1985); Wilson v.



State, 654 S. W. 2d465, 471 (Tex. Crim. App. 1983).

      Appe11ant asserts that the evidence presented was thereby factually


insu触cient to prove a prima facie case ofguilt by the State. A challenge to



the court’s ruling on the motion for an instructed verdict is a challenge to the




Su触ciency of the evidence to support the conviction. MZz(娩n v. S細わ, 799



S. W. 2d 683 (Tex. Crim・ App. 1990). Appellant hereby submits that the



evidence presented was both legally and factually insu飾cient to support a



finding that he committed aggravated robbery.


      In evaluating the legal su触ciency of the evidence, the evidence must



be viewed in the light most favoral)1e to the verdict and detemine whether


any rational trier of fact could have found the essential elements of the


Offense beyond a reasonable doubt. King v.級e吟29 S. W. 3d 556, 562



(Tex. Crim. App. 2000) (citing Jdckson v.脇ginia, 443 U. S. 307, 319, 99




                                       9
S. Ct. 2781, 2788-89 (1978)). A factual su能ciency review is by reviewing



a11 the evidence in a neutra1 1ight to detemine whether the proof of guilt is

SO Obviously weak as to undemine confidence in the jury’s detemination,



Or the proof of guilt, a皿ough adequate if taken alone, is greatly outweigh by



COntrary PrOOf Jbhnson v.部ate, 23 S. W. 3d l, 1 1 (Tex. Crim. App. 2000).



      In the case at bar, the State’s witnesses testi宜ed to completely



different versions of what could have possibly occurred at Complainant,s


apartment on November 23, 2012. Complainant certainly was not a credible

Witness. Appellant submits that considering all of the inconsistent testimony


and evidence presented by the State, the motion for instructed verdict should


have been granted.


                                 PRAYER


      The Appe11ant prays that this Honorable Court consider the foregomg

issue presented, reVerSe the trial court’s judgment and order an acquittal as




the law and justice demands.


                                      Respectfully submitted,




                                      Hattie Sewell Sharmon
                                      Attomey For Appe11ant
                                      6760 West Loop South, Suite 825
                                      Be11aire, Texas 77401
                                      (832) 767-1498



                                     10
                                     FAX (832) 767-1506
                                     TBN 13155700
                                     hattieshamon5 2@yahoo. com

                      CERTIFICATE OF SERVICE

      I   hereby   certify   that   on   this   day   of   August 2015,   I



electronically乱ed the foregomg With the Clerk of the Court using the



eFilingTXCourts system which will send noti丘cation of such乱ing to the



following:


Harris County District Attomey’s O触ce.




                                     埋墨壁墨豊国星型回国国璽害
                                     Hattie Sewell Sharmon



                    CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4, I hereby certify that this brief

COntains 4 5gq words. This is a computer-generated document created

in Microsoft Word, uSing 14-POi血typeface for all text・ In making this



Certificate of compliance, I am relying on the word court provided by the


SOftware used to prepare the document.




                                     珊
Hattie Sewe11 Shamon




12
