                                                                                              ACCEPTED
                                                                                         13-14-00537-CR
                                                                           THIRTEENTH COURT OF APPEALS
        FILED                                                                    CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                        3/24/2015 2:50:29 PM
        CORPUS CHRISTI                                                                 DORIAN RAMIREZ
                                                                                                  CLERK
          3/24/15
                                      NO. 13-14-00537-CR
DORIAN E. RAMIREZ, CLERK
BY DTello
                                         IN THE              RECEIVED IN
                               THIRTEENTH COURT OF APPEALS
                                                       13th COURT OF APPEALS
                                                    CORPUS CHRISTI/EDINBURG, TEXAS
                                        OF TEXAS        3/24/2015 2:50:29 PM
                                                             DORIAN E. RAMIREZ
                                                                  Clerk

                                        ALLEN RAY INCE,
                                           Appellant

                                              VS.

                                      THE STATE OF TEXAS,
                                           Appellee

          _____________________________________________________________

                     APPEAL OF CAUSE NO. A-12-5022-CR FROM THE
                     DISTRICT COURT OF ARANSAS COUNTY, TEXAS

          _____________________________________________________________

                     FIRST AMENDED BRIEF OF APPELLANT
          _____________________________________________________________

          JOEL H. THOMAS
          Attorney At Law
          State Bar No. 00797547
          P.O. Box 1141
          Sinton, Texas 78387
          (361) 364-5525
          (361) 364-5625 (Fax)
          Attorney for Appellant
                                          INDEX

                                                                                  Page


INDEX .....................................................…………….             2

LIST OF ALL PARTIES .......................................……                 3

LIST OF AUTHORITIES .......................................…..                4

STATEMENT OF THE CASE .....................................                   5

STATEMENT OF FACTS                    .....................................   6

SUMMARY OF THE ARGUMENT ...........................                           7

POINT OF ERROR NO. 1
ARGUMENT AND AUTHORITIES ............................                         7

POINT OF ERROR NO. 2
ARGUMENT AND AUTHORITIES ............................                         12

PRAYER FOR RELIEF .........................................…...               13

CERTIFICATE OF COMPLIANCE ………………….                                            13

CERTIFICATE OF SERVICE ......................................                 14




                                               2
                    LIST OF NAMES OF ALL PARTIES

      Pursuant to Rule 38.1 (a) of the Texas Rules of Appellate Procedure, a

complete list of the names of all parties to this appeal is as follows:



ALLEN RAY INCE                                               Appellant
TDCJ# 01954192
Clarence N. Stevenson Unit
1525 FM 766,
Cuero, TX 77954


THE STATE OF TEXAS                                           Appellee
Honorable Mike Welborn
District Attorney
Aransas County
Sinton, Texas 78387


         LIST OF NAMES OF ATTORNEYS FOR ALL PARTIES

JOEL H. THOMAS                                        Attorney for Appellant
Post Office Box 1141                                  ALLEN RAY INCE
Sinton, Texas 78387


Mike Welborn                                          Attorney for Appellee
District Attorney                                     THE STATE OF TEXAS
District Attorney
Aransas County
Sinton, Texas 78387




                                        3
                       LIST OF AUTHORITIES

Cases:                                                      Page

Jackson v. Virginia, 443 U.S. 307, 319 (1979)               7

Escamilla v. State, 143 S.W.3d 814, 817
(Tex. Crim. App. 2004)                                      7

Malik v. State, 953 S.W.2d 234, 240 Tex. Crim. App. 1997)   7

Adi v. State, 94 S.W.3d 124, 131 (Tex. App.
Corpus Christi 2002, pet. ref'd)                            7

Kitchens v. State, 823 S.W.2d 256, 258
(Tex. Crim. App. 1991) (en banc)                            8

Dues v. State, 634 S.W.2d 304, 305 (Tex.Cr.App.1982)        8

Womble v. State, 618 S.W.2d 59, 64 (Tex.Cr.App.1981)        8

Cordova v. State, 698 S.W.2d 107, 112 (Tex.Cr.App.1985),
cert. denied, 476 U.S. 1101, 106 S.Ct. 1942,
90 L.Ed.2d 352 (1986)                                       8

Saxton v. State, 804 S.W.2d 910, 913 (Tex.Cr.App.1991)      10

Watson v. State, 204 S.W.3d 404, 414-15
(Tex. Crim. App. 2006)                                      11

Santellan v. State, 939 S.W.2d 155, 164
(Tex. Crim. App. 1997) (en banc)                            11

TEX. CODE CRIM. PROC. ANN. ART. 37.07, 1(a)                 8
TEX. PEN. CODE ANN. §22.02(a)(2)                            8
TEX.PEN.CODE ANN. § 9.31(a)                                 8
TEX.PEN.CODE ANN. § 9.01(3)                                 9
TEX. PEN.CODE § 9.32(a)(1), (2)(A)                          9




                                    4
                           NO. 13-14-00537-CR

                           IN THE
                 THIRTEENTH COURT OF APPEALS
                          OF TEXAS


                             ALLEN RAY INCE,
                                Appellant

                                    VS.

                           THE STATE OF TEXAS,
                                Appellee



                        BRIEF OF APPELLANT

TO THE HONORABLE COURT OF APPEALS, THIRTEENTH
SUPREME JUDICIAL DISTRICT OF TEXAS:

            Now comes ALLEN RAY INCE, hereinafter referred to as

Appellant, and submits this brief pursuant to the provisions of Article 44.02

of the Code of Criminal Procedure and the provisions of Rule 9 and Rule 38

of the Texas Rules of Appellate Procedure in support of his appeal in Cause

No. A-12-5022-CR from the District Court of Aransas County.



                      STATEMENT OF THE CASE

      Appellant was charged by indictment with the offense of Aggravated

Assault, by causing serious bodily injury to Artavias Edwards by cutting him


                                     5
with a deadly weapon, a knife. Following a jury trial, Appellant was found

guilty. Appellant was assessed a sentence of fifteen (15) years incarceration

by the Honorable Starr Bauer, Judge of the 36th District Court. Appellant

timely filed his notice of appeal.

                         STATEMENT OF FACTS

      The State relied on the testimony of the victim, Artavias Edwards,

three eye witnesses, Virginia Gonzales, Aurora Gonzales, and Ofelia

Martinez; and Police Officers Mario Gracia and Steven Reyes. Appellant

testified on his own behalf.

      Appellant was sitting in a laundromat in Rockport, Texas, when

Edwards and the Gonzales’ girls arrived. The girls were the daughters of a

woman Edwards was dating at the time. Ofelia Martinez was also in the

laundromat when Edwards and the girls arrived. The testimony of each

witness differed on the specifics of what happened next, but it appears from

the testimony that Appellant spoke with Virginia Gonzales, which Edwards

disagreed with, and Edwards “invited” Appellant to step outside the

laundromat to settle the issue.      The testimony again differs on what

happened outside the laundromat, but Appellant had a knife and during a

brief fight with Edwards, cut Edwards three times, with one injury being a

serious wound to Edwards’ chest/abdomen. Appellant testified that Edwards



                                      6
threatened to kill him with a gun he had in his car, which was parked

immediately outside of the laundromat, in the general area where the fight

took place. Appellant testified he believed Edwards had a gun, and was

doing what he could to keep Edwards away from the car because Appellant

believed that Edwards did in fact have a gun, and would in fact shoot him.

The jury was instructed on self-defense, but convicted Appellant for the

indicted offense of Aggravated Assault.



                   SUMMARY OF THE ARGUMENT

      Appellant argues that the evidence at trial was legally and factually

insufficient to support the jury’s determination of his guilt, based upon

Appellant’s reasonable belief that the victim in this case was armed and had

threatened to kill Appellant. Appellant reasonably acted in self-defense.



                        POINT OF ERROR NO. 1

     THE EVIDENCE AT TRIAL IS LEGALLY INSUFFICIENT TO

                SUPPORT THE JUDGMENT OF GUILTY


                   ARGUMENT AND AUTHORITIES

      A legal sufficiency challenge requires the Appellate Court to review

the relevant evidence in the light most favorable to the verdict to determine


                                      7
whether a rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004).

The sufficiency of the evidence is measured against the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94

S.W.3d 124, 131 (Tex. App. Corpus Christi 2002, pet. ref'd). The conviction

will be upheld if the evidence is sufficient to support a finding of guilt under

any one of the theories submitted. TEX. CODE CRIM. PROC. ANN.

ART. 37.07, ' 1(a) (verdict must be general); Kitchens v. State, 823 S.W.2d

256, 258 (Tex. Crim. App. 1991) (en banc).

      A person commits aggravated assault if the person intentionally or

knowingly threatens another with imminent bodily injury, and uses or

exhibits a deadly weapon during the commission of the assault.

TEX.PEN.CODE ANN. § 22.02(A)(2).

      In regards to self-defense, a person is justified in using force against

another person "when and to the degree" that the person "reasonably

believes the force is immediately necessary" for protection against that other

person's use or attempted use of unlawful force. TEX.PEN.CODE ANN. §

9.31(a). Intent can be inferred from acts, words, and conduct of the accused.



                                       8
Dues v. State, 634 S.W.2d 304, 305 (Tex.Cr.App.1982). The accused's

intent may also be ascertained from the methods used and the wounds

inflicted, Womble v. State, 618 S.W.2d 59, 64 (Tex.Cr.App.1981), as well as

from circumstances surrounding the use of a weapon. Cordova v. State, 698

S.W.2d 107, 112 (Tex.Cr.App.1985), cert. denied, 476 U.S. 1101, 106 S.Ct.

1942, 90 L.Ed.2d 352 (1986). The Penal Code justification for self-defense

focuses on the existence of some necessity, the circumstances under which

the force was used, the degree of force used, and the type of conduct against

which the force was used. The amount of force used must be in proportion to

the force encountered. Special rules govern the use of deadly force in self-

defense. Deadly force means force that is intended or known by the actor to

cause death or serious bodily injury, or force that is capable of causing death

or serious bodily injury in the manner of its use or intended use.

TEX.PEN.CODE ANN. § 9.01(3).

      Penal Code Section 9.31(a) justifies the use of force "when and to the

degree the actor reasonably believes the force is immediately necessary to

protect the actor against the other's use or attempted use of unlawful force."

Section 9.32 justifies the use of deadly force "if the actor would be justified

in using force against the other under Section 9.31; and when and to the

degree the actor reasonably believes the deadly force is immediately



                                      9
necessary to protect the actor against the other's use or attempted use of

unlawful deadly force." TEX. PEN.CODE § 9.32(a)(1), (2)(A). Section

9.01 defines "deadly force" as "force that is intended or known by the actor

to cause, or in the manner of its use or intended use is capable of causing,

death or serious bodily injury." PEN.CODE § 9.01(3).

      The defendant has the initial burden of producing some evidence to

justify submission of a self-defense instruction. The State must then

persuade the jury beyond a reasonable doubt that the defendant did not act in

self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Cr.App.1991).

Although the State has the burden of persuasion, it does not have the burden

of producing evidence to affirmatively refute self-defense. Id.

      Appellant testified that he was attacked by Edwards as soon as he

walked out of the laundromat, and that Edwards told him he had a gun and

would kill Appellant with it. No gun was found, but police officers did

search Edwards’ vehicle when Appellant told the officers of Edwards’

threat. Appellant testified that he used his knife to try and keep Edwards

away from the vehicle so that Edwards could not get to the gun. Edwards’

injuries were consistent with Appellant’s testimony; wounds on Edwards

chest following Edwards’ lunge at Appellant, and cuts to Edwards’ arms

following Edwards’ attempted strikes at Appellant. Appellant testified when



                                      10
Edwards lunged at him, Appellant pointed the knife at him, and Edwards ran

into the blade. Appellant testified that he continued to waive the knife back

and forth in front of him to hold Edwards at by, and that Edwards got cut

when he attempted to hit Appellant. The witnesses testified that Edwards

was running around in the street next to the laundromat, but never fled the

scene, continuing to try and get back to the vehicle that Appellant was

guarding. The State argued that Edwards could not leave the girls there with

Appellant, but one of the girls testified she tried to take the knife away from

Appellant, but he completely ignored her and continued to focus on

preventing Edwards from retrieving a gun from the car. Additionally, none

of Edwards’ injuries were located on his back, where Appellant would have

had to stab him if Appellant was pursuing Edwards as he ran away from

Appellant. Based on Edwards’ actions, a reasonable person could believe

that Appellant used deadly force against Edwards because Appellant

believed it was immediately necessary to protect himself from Edwards’

attempted use of deadly force against him, which is what the law requires to

raise the issue of self-defense.




                                      11
                         POINT OF ERROR NO. 2

   THE EVIDENCE AT TRIAL IS FACTUALLY INSUFFICIENT TO

                 SUPPORT THE JUDGMENT OF GUILTY



                   ARGUMENT AND AUTHORITIES

     In a factual sufficiency review, the Court reviews the evidence in a

neutral light to determine whether the evidence is so weak that the jury's

verdict seems clearly wrong and manifestly unjust. Watson v. State, 204

S.W.3d 404, 414-15 (Tex. Crim. App. 2006). After considering all of the

evidence in the record related to appellant's sufficiency challenge, the Court

compares the evidence weighed by the jury that tends to prove the elemental

fact in dispute with the evidence that tends to disprove it. Santellan v. State,

939 S.W.2d 155, 164 (Tex. Crim. App. 1997) (en banc). The Court will not

reverse the jury's verdict unless it can say with some objective basis in the

record that the great weight and preponderance of the evidence contradicts

the verdict. Watson, 204 S.W.3d at 415.

      Relying on the same argument from above, the evidence produced at

trial does not support the jury’s finding of guilt beyond a reasonable doubt.




                                      12
                         PRAYER FOR RELIEF

      For the reason herein alleged, Appellant prays that this Court overturn

the judgment against him and that the judgment be reformed to show an

acquittal. Appellant further prays that he be immediately discharged from

any further confinement under said judgment.



                                            Respectfully submitted,


                                             /s/ Joel H. Thomas
                                            JOEL H. THOMAS
                                            Attorney At Law
                                            State Bar No. 00797547
                                            408 West Market Street
                                            Post Office Box 1141
                                            Sinton, Texas 78387
                                            (361) 364-5525
                                            (361) 364-5625 Fax
                                            Attorney for Appellant

                  CERTIFICATE OF COMPLIANCE

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies

that this brief complies with the type-volume limitations of 5TH CIR. R.

32.2.7(b).

1.    This brief contains 2254 words printed in a proportionally spaced

typeface.




                                     13
2.    This brief is printed in a proportionally spaced, serif typeface using

Times New Roman 14 point font in text and Times New Roman 12 point

font in footnotes produced by Microsoft Word software.

3.    Upon request, undersigned counsel will provide an electronic version

of this brief and/or a copy of the word printout to the Court.


                                              /s/ Joel H. Thomas
                                              Joel H. Thomas



                      CERTIFICATE OF SERVICE

      I certify that a copy of this Amended Brief of Appellant has been
delivered to the District Attorney of Aransas County, Texas, the Honorable
Mike Welborn, Sinton, Texas, on the 24th day of March, 2015.



                                              /s/ Joel H. Thomas______
                                              JOEL H. THOMAS




                                      14
