                                                                     ACCEPTED
                                                                 12-14-00355-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                             7/6/2015 8:22:12 PM
                                                                   CATHY LUSK
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-14-00355-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS     7/6/2015 8:22:12 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS




                   DONALD POWELL,
                     APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




        ON APPEAL IN CAUSE NUMBER 002-81591-14
          FROM THE COUNTY COURT AT LAW #2
               OF SMITH COUNTY, TEXAS
     HONORABLE RANDALL ROGERS, JUDGE PRESIDING


                  APPELLANT’S BRIEF


JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437

ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Donald Powell

APPELLANT’S TRIAL COUNSEL
    J. Rex Thompson
    321 W. Houston
    Tyler, Texas 75702
    903-533-8434

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Jeff Weatherford
    Josh Raygor
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1900

APPELLEE’S APPELLATE COUNSEL
    Mike West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1900



                                 ii
                                 TABLE OF CONTENTS
                                                                                               PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

       ISSUE ONE: THERE WAS LEGALLY INSUFFICIENT
       EVIDENCE TO FIND APPELLANT GUILTY OF THE
       OFFENSE OF ASSAULT.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

       A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         5
       B. Elements of the Offense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .           6
       C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . .             6
       D. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   9

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 10



                                                   iii
                                TABLE OF AUTHORITIES
STATUTES
TEX. PENAL CODE ANN. §1.07(a)(8) (West 2011).. . . . . . . . . . . . . . . . . . . 6
TEX. PENAL CODE ANN. §22.01(a)(1) (West 2011). . . . . . . . . . . . . . . 1, 2, 6


CASES
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). . . . . . . . . . . . . 8
Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App. 1999).. . . . . . . . . . . 7
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
    61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). . . . . . . 5
Moreno v. State, 755 S.W.2d 866 (Tex. Crim. App. 1988). . . . . . . . . . . . 8
Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986). . . . . . . . . . . . . 8
Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211,
    72 L.Ed.2d 652 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Turro v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993). . . . . . . . . . . . . . 8
Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 1993). . . . . . . . . . . 8



RULES
TEX. R. APP. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                    iv
                                        NO. 12-14-00355-CR

DONALD POWELL,                                          §    IN THE COURT OF APPEALS
APPELLANT                                               §
                                                        §
VS.                                                     §    12TH JUDICIAL DISTRICT
                                                        §
THE STATE OF TEXAS,                                     §
APPELLEE                                                §    TYLER, TEXAS


                                      APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:

        Comes now Donald Powell (“Appellant”), by and through his attorney

of record, James Huggler, and pursuant to the provisions of TEX. R. APP.

PROC.38, et seq., respectfully submits this brief on appeal.




                                 STATEMENT OF THE CASE

        Appellant was charged in cause number 002-81591-14 with the

misdemeanor offense of assault on May 20, 2012. I CR 2.1 TEX. PENAL

CODE ANN. §22.01(a)(1) (West 2011). A jury was selected, and following

evidence and argument of counsel found Mr. Powell guilty of assault. I CR
1

The Clerk’s Record is designated “CR” with roman numeral preceding “CR” indicating the correct volume and an arabic
numeral following “CR” specifying the correct page in the record.
                                                        1
32; III-A RR 28.2

       Following evidence and argument to the trial court, the court

assessed a sentence of 60 days confinement in the Smith County Jail and

a $1,000 fine. I CR 41-42; IV RR 80. Notice of appeal was timely filed. I

CR 36. This brief is timely filed on or before July 6, 2015 following proper

extension by this Court.




                                  ISSUE PRESENTED

Issue One: There was legally insufficient evidence to find Appellant
guilty of the offense of assault.



                           STATEMENT OF THE FACTS

       The State alleged that on May 20, 2012, in Smith County, Donald

Powell assaulted Lydia Koonce by striking with hand or hands. I CR 2;

Tex. Penal Code Ann. §22.01(a)(1) (West 2011). The State also alleged

that the two had a dating relationship. I CR 2. To prove the case, the

State called two primary witnesses, Ms. Lydia Koonce the complainant
2
  References to the Reporter’s Record are made using “RR” with a roman numeral preceding
“RR” indicating the volume and an arabic numeral following “RR” specifying the correct page.
There are two volumes labeled three, for the sake of convenience the afternoon session is referred
to in this brief as “III A”
                                                2
and a nurse by profession, and the responding officer, Deputy Stockwell.

       Ms. Koonce testified that during the time alleged, she and Mr.

Powell started consuming alcohol at her residence in the afternoon. II RR

164, 222. At the time she was also taking prescription medication for

depression which should not be mixed with alcohol. II RR 222. They then

continued drinking alcohol later at a bar or club frequented or “owned” by

a motorcycle club. II RR 165, 224. They stayed until last call which Ms.

Koonce believed was midnight. II RR 167. She then invited a lot of

people, at least five or six, back to her home. II RR 167-68, 169. Ms.

Koonce was not even sure as to the identity of some of these people. II RR

224.

       She did not remember how long she stayed awake, but that she was

drinking with others on the patio. II RR 168. Her last memory was

everyone sitting on the back porch drinking, talking and carrying on. II

RR 170. The next thing she remembered was waking up in her bedroom

banged up. II RR 170. She woke up after she had taken her daughter to

her ex-husband and met the deputy. II RR 170.



                                    3
       Deputy Stockwell3 testified that she responded to the gas station,

met Ms. Koonce and her former husband, took a statement from her as

well as photographs. III RR 9, 12, 15. Following this meeting she

contacted Mr. Powell and arrested him. II RR 27-28. A further discussion

of the facts is included in the argument section of this brief.




                            SUMMARY OF ARGUMENT

       There is one issue for this Court to consider. Was the evidence

legally sufficient to fin Donald Powell guilty of the assault? There is no

doubt that Ms. Koonce was assaulted, the question is by whom was she

assaulted?




3
  In May 2012, Deputy Jennifer Burkhalter responded to and met Ms. Koonce. Between that
time and trial she was married. III RR 43. Because the reporter’s record refers to the witness by
her married time, for the convenience of the Court, counsel will also do so in this Brief.
                                                4
                              ARGUMENT

ISSUE ONE, RESTATED: THERE WAS LEGALLY INSUFFICIENT
EVIDENCE TO FIND APPELLANT GUILTY OF THE OFFENSE OF
ASSAULT.



                         A. Standard of Review

     Appellant contends that the evidence is legally insufficient to

support the verdict. The standard for reviewing a legal sufficiency

challenge is whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson

v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d

560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993). The evidence is examined in the light most favorable to the

verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871

S.W.2d at 186. A successful legal sufficiency challenge will result in

rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457

U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).




                                     5
                      B. Elements of the Offense

     A person commits assault if he intentionally, knowingly or recklessly

causes bodily injury to another. TEX. PENAL CODE ANN. §22.01(a)(1) (West

2011). Bodily injury means physical pain, illness, or any impairment of

physical condition. TEX. PENAL CODE ANN. §1.07(a)(8) (West 2011).



                     C. Application to These Facts

     Ms. Koonce, due to alcohol and prescription medications had almost

no recollection of the events in this case. II RR 190, 192, 221-222, 241.

She did not remember what she was wearing when she woke up. II RR

171. She did not remember taking her daughter to a gas station, meeting

her former husband or meeting the deputy. II RR 171, 172. She only

knew that she spoke with the deputy because the prosecutor and her

former husband told her that it occurred.      II RR 173.    She did not

recognize a statement made that morning. II RR 175-177, 181, 214. She

was unable to recognize her signature. II RR 188, 212. She believes that

she made the statement while under the influence of alcohol, and anti-

depressant medications, Zoloft and Xanax. II RR 243-245, 242.

     Ms. Koonce had previously alerted the District Attorney’s Office that

                                    6
she was unable to remember the events of that evening. II RR 182-183,

205, 232; Def. Exs. 1 and 2, I V RR 43 and 44. She began these efforts as

early as August 2012. II RR 227. She did not remember meeting the

deputy and was probably still drunk and under the influence of the

prescription medications. II RR 227-28.

       Ths simple truth is that Ms. Koonce has no recollection of who

caused the injuries to her that evening. II RR 226. It could have been

from Mr. Powell, anyone else at the house, or some other person. II RR

226.

       Deputy Stockwell confirmed that Mr. Powell had injuries, a bite

mark or scratch marks, a bruised eye. III RR 29, 30. She also took

photographs of Mr. Powell later that morning. III RR 32. Stockwell did

not see any defensive wounds on Ms. Koonce. III RR 46. After Stockwell

saw the wounds on Powell, she did not attempt to determine if they came

from Koonce. III RR 47, 49. Mr. Powell’s hands did not have any marks

of indications that he had assaulted anyone. III RR 50, 52.

       The jury, as the trier of fact, "is the sole judge of the credibility of the

witnesses and of the strength of the evidence." Fuentes v. State, 991

S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe

                                         7
or disbelieve any portion of the testimony. Sharp v. State, 707 S.W.2d

611, 614 (Tex. Crim. App. 1986). The jury may also draw reasonable

inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d

126, 133 (Tex. Crim. App. 1996). When faced with conflicting evidence,

the appellate court presumes the trier of fact resolved conflicts in the

prevailing party's favor. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim.

App. 1993). However, the duty of a reviewing court requires ensuring that

the evidence presented actually supports a conclusion that the defendant

committed the crime charged. Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007). An appellate court can not uphold a fact-finder's

decision if it is irrational or unsupported by more than a mere modicum

of the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.

1988).

     In this case, there is no doubt that Ms. Koonce was assaulted. The

State believed that the assault was made by Mr. Powell, despite the lack

of evidence on his hands, or the lack of defensive wounds on her hands.

Ms. Koonce attempted twice in writing, and other times in telephone calls

to communicate the fact that she had no recollection of the events of that

night.

                                    8
                              D. Conclusion

     This Court should sustain this issue and reverse the judgment of the

trial court and render an acquittal to the charge of assault.




                         PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that the trial court’s decision be reversed and judgment of acquittal

rendered, and for other such relief as allowed by law.



                                              Respectfully submitted,

                                               /s/ James Huggler
                                              James W. Huggler, Jr.
                                              State Bar Number
                                              00795437
                                              100 E. Ferguson, Suite 805
                                              Tyler, Texas 75702
                                              903-593-2400
                                              903-593-3830 fax

                                              ATTORNEY FOR
                                              APPELLANT




                                     9
                      CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief of the Appellant has been

forwarded to counsel for the State by regular mail on this the 6th day of

July, 2015.




 /s/ James Huggler
James W. Huggler, Jr.


Attorney for the State:
Mr. Mike West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702




                    CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,073 words as counted by
Corel WordPerfect version x5.


 /s/ James Huggler
James Huggler




                                     10
