                                                                           PD-1093-15
                                                      COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                      Transmitted 9/23/2015 2:52:04 PM
                                                        Accepted 9/24/2015 3:50:51 PM
                                                                        ABEL ACOSTA
                       PD-1093-15                                               CLERK



                        IN THE
            COURT OF CRIMINAL APPEALS
                       OF TEXAS
            _______________________________

                 YALANDA RENEE LIND,
                      Petitioner

                            v.

                   STATE OF TEXAS
            _______________________________
         Petition in Cause No. 2012-1147-C2 from the
     54th District Court of McLennan County, Texas and
              The Court of Appeals for the Tenth
              Supreme Judicial District of Texas
                      No. 10-14-00201-CR
             _________________________________

       PETITION FOR DISCRETIONARY REVIEW
          _________________________________


                                 John A. Kuchera
                                 210 N. 6th St.
                                 Waco, Texas 76701
                                 (254) 754-3075
                                 (254) 756-2193 (facsimile)
September 24, 2015               SBN 00792137
                                 johnkuchera@210law.com
                                 Attorney for Petitioner



                       September 23, 2015


                                                                       i
                       Identity of Judge, Parties, and Counsel

Honorable Matt Johnson, 54th District Court, 501 Washington Avenue, Waco,
Texas 76701; Trial Judge

Michael Jarrett, Assistant District Attorney, McLennan County, Texas, 219 N. 6th
St., Suite 200, Waco, Texas 76701; State’s Trial Counsel

Hilary LaBorde, Assistant District Attorney, McLennan County, Texas, 219 N. 6th
St., Suite 200, Waco, Texas 76701; State’s Trial Counsel

Sterling Harmon, Assistant District Attorney, McLennan County, Texas, 219 N. 6th
St., Suite 200, Waco, Texas 76701; State’s Appellate Counsel

Gabe Price, Assistant District Attorney, McLennan County, Texas, 219 N. 6th St.,
Suite 200, Waco, Texas 76701; State’s Appellate Counsel

Russell Hunt, Sr., 425 Austin Ave. Suite 1202, Waco, Texas 76701, Appellant’s
Trial Counsel

Michelle Tuegel, 425 Austin Ave. Suite 1202, Waco, Texas 76701, Appellant’s Trial
Co-Counsel

John Kuchera, 210 N. 6th St., Waco, Texas 76701, Appellant’s Appellate Counsel

Yalanda Renee Lind, Appellant, TDC # 1941674, Crain Unit, 1401 State School
Road, Gatesville, Texas 76599




                                                                                 ii
                                 Table of Contents
                                                                                Page
Identity of Judge, Parties, and Counsel                                         ii

Table of Contents                                                               iii-v

Table of Authorities                                                            vi-vii

Statement Regarding Oral Argument                                               viii

Statement of the Case
      First issue                                                               1-3
      Second issue                                                              3-4
      Third and fourth issues                                                   5-6

Statement of Procedural History                                                 6-7

Questions/Issues for Review                                                     8
 1. In a capital murder (murder committed in the course of attempting to commit
 robbery) sufficiency of the evidence analysis under a parties theory, is it reasonable
 for a reviewing court to infer from motive alone that the defendant had the
 necessary intent to commit the robbery?


 2. Should a party application paragraph in a capital murder jury charge require
 the jury to specifically find that the defendant intended to assist both offenses –
 murder and robbery – in order to find the defendant guilty?


 3. The Waco Court improperly ignored undisputed facts in viewing the evidence
 “in the light most favorable to the verdict.”


 4. The Tenth Court failed to apply the rigorous sufficiency of evidence review

                                                                                        iii
 required by Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).


Argument

      Reason for granting review regarding first issue

(a) The Tenth Court’s reliance on Yalanda’s motive to get money, in      9-11
and of itself, as constituting sufficient evidence of intent to commit
theft is inconsistent with Herrin v. State, 125 S.W.3d 436 (Tex. Crim.
App. 2002) and Brewer v. State, 126 S.W.3d 295 (Tex.App.—Beaumont
2004, pet. ref’d).



      Reasons for granting review regarding second issue

(a) The Tenth Court’s reliance on Holford v. State ignores the           11-13
differences between the application paragraph therein and the
application paragraph in the instant case.

(b) The Tenth Court’s reliance on Holford v. State, a Houston            14-16
First Court decision, ignores the First Court’s decision in
Duke v. State, 950 S.W.2d 424 (Tex.App.—Houston [1st Dist.]
1997, pet. ref’d).



      Reasons for granting review regarding third and fourth issues

(a) The Waco Court’s sufficiency of the evidence analysis as to          16-17
Yalanda’s intent to commit the murder improperly failed to take
into account undisputed facts, thus putting the opinion in conflict
with Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006).

(b) Inferences made by the Waco Court regarding Yalanda’s                17-20
conversation with Lowrey about money were improper in light of
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) and
Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992).


                                                                                iv
(c) Inferences made by the Waco Court regarding Yalanda’s            20-22
statement, “he killed the wrong one,” were improper in light
of Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013).


Prayer for Relief                                                    23


Certificate of Service                                               24

Certificate of Compliance                                            25

Appendix A: Copy of the unpublished opinion of the Tenth Court of
     Appeals in Lind v. State, No. 10-14-00201-CR, 2015 WL 4507672
     (Tex.App.—Waco July 23, 2015)

Appendix B: Defendant’s Exhibits 1-7




                                                                          v
                                           Table of Authorities

                                                                                                           Page(s)

Cases
Barnhart v. Thomas,
  540 U.S. 20 (2003) .............................................................................................. 13

Brewer v. State,
   126 S.W.3d 295 (Tex.App.—Beaumont 2004, pet. ref’d) .............2, 9, 10, 11, 17

Brooks v. State,
   323 S.W.3d 893 (Tex. Crim. App. 2010) ....................................................... 8, 17

City of Keller v. Wilson,
   168 S.W.3d 802 (Tex.2005)................................................................................ 16
Clear v. State,
   76 S.W.3d 622 (Tex.App.—Corpus Christi 2002, no pet.) ................................ 15
Cosio v. State,
  353 S.W.3d 766 (Tex. Crim. App. 2011) ........................................................... 15
Duke v. State,
  950 S.W.2d 424 (Tex.App.—Houston [1st Dist.] 1997, pet. ref’d) .............14, 15

Evans v. State,
  202 S.W.3d 158 (Tex. Crim. App. 2006) ........................................................... 16

Herrin v. State,
  125 S.W.3d 436 (Tex. Crim. App. 2002) ....................................................... 9, 10

Holford v. State,
  177 S.W.3d 454 (Tex.App.-Houston [1st Dist.] 2005, pet. ref’d) 4, 11, 12, 13, 14

Hooper v. State,
  214 S.W.3d 9 (Tex. Crim. App. 2007) .............................................17, 19, 20, 22

Lawton v. State,
  913 S.W.2d 542 (Tex. Crim. App. 1995) ............................................................. 5



                                                                                                                    vi
Lind v. State,
   No. 10-14-00201-CR, 2015 WL 4507672 (Tex.App.—Waco July 23, 2015) 2, 3,
   4, 6, 7, 17, 20

Robinson v. State,
  266 S.W.3d 8 (Tex.App.—Houston [1st Dist.] 2008, pet. ref’d) ....................... 15

Urbano v. State,
  837 S.W.2d 114 (Tex. Crim. App. 1992) ...............................................17, 18, 19
Winfrey v. State,
  323 S.W.3d 875 (Tex. Crim. App. 2010) .....................................................17, 22

Winfrey v. State,
  393 S.W.3d 763 (Tex. Crim. App. 2013) ...............................................20, 21, 22

Other Authorities
Anne Stillman, Grammatically Correct, An Essential Guide to Punctuation, Style,
  Usage & More..................................................................................................... 12

Black's Law Dictionary 942 (6th ed. 1990) ............................................................. 18

New Webster’s Dictionary of the English Language 562 (1971) ........................... 18




                                                                                                                   vii
                     Statement Regarding Oral Argument

      Petitioner believes oral argument would assist this Court by allowing for

further discussion regarding why the Waco Court’s inferences made in support of its

affirmance were not reasonable inferences.




                                                                                viii
                                    PD-1093-15

YALANDA RENEE LIND,                          }      IN THE TEXAS COURT
    Petitioner                               }
                                             }      OF CRIMINAL APPEALS
            v.                               }
                                             }
THE STATE OF TEXAS                           }

                 PETITION FOR DISCRETIONARY REVIEW

      TO THE HONORABLE JUDGES OF THE TEXAS COURT OF

CRIMINAL APPEALS:

      Now comes Yalanda Renee Lind (“Yalanda”), Petitioner, by and through

undersigned counsel, and files this petition for discretionary review, in accordance

with the directives of Rule 66 of the Texas Rules of Appellate Procedure.



                              Statement of the Case

      Rebecca Leonard (“Rebecca”) was Yalanda’s mother. Yalanda moved in with

Rebecca in September of 2006 at Rebecca’s house. On the night of October 12th,

2008, Jeremy Lowrey (“Jeremy”) entered the house, stabbed Rebecca to death and

seriously injured Rebecca’s boyfriend, Jerry Patterson (“Jerry”) by stabbing him.

                                     First issue

      The State made it clear to the jury, both during voir dire and closing argument,

that it was prosecuting Yalanda under a party theory, both as to the murder and the


                                                                                  -1-
attempted robbery. And the Tenth Court addressed Yalanda’s sufficiency of the

evidence argument under a party theory. 2015 WL 4507672, at *3. As the State

correctly noted during jury selection, it had to prove essentially two offenses, murder

and robbery:

      Let’s talk about what Capital Murder is. We’ve talked generally about
      what it is. It’s the intentional murder in the course of committing a
      robbery. It sounds very simple, but that’s truly all it is. It’s a
      combination of two crimes.

See Brewer v. State, 126 S.W.3d 295, 297 (Tex.App.—Beaumont 2004, pet. ref’d)

(“To establish capital murder committed during the course of robbery, the State must

prove, . . . in addition to the murder, that the defendant possessed the specific intent

to obtain or maintain control of the victim’s property either before or during the

commission of the murder.”).

      The State’s theory was that Rebecca let Jeremy into the house so they could

steal Rebecca’s money. Yalanda’s purported motive was based on the facts that she

owed Rebecca money and Rebecca had asked her to move out of the house. But no

money was stolen and there was no evidence that Yalanda knew Rebecca had any

money in the house. The State’s witness (Jerry) testified that the conversation he

heard between Yalanda and Jeremy regarding money had to do with Yalanda’s

money – not Rebecca’s money:




                                                                                    -2-
      I went through the hallway. . . . Rebecca was on the floor. . . Whenever
      I went out the hall to go out the door – the kitchen is sitting here . . .
      [a]nd the stove is here. [Yalanda] was sitting on the floor in front of
      the stove. . . . [T]he guy [Lowrey] had his back to me. I still didn’t
      know who he was. . . . And the guy asked . . . where is the money[?]
      She said, I don’t have any money, there’s not any money, I haven’t
      worked for a couple of days.
      Yalanda argued on appeal, inter alia, that motive alone does not constitute an

intent to commit robbery. The Tenth Court disagreed:

      There was evidence that Yalanda owed Rebecca money. Rebecca kept
      a ledger recording the amount of money owed to her by Yalanda. Jerry
      and Rebecca told Yalanda that she would have to move out of the
      house, and Yalanda testified that she did not have enough money to be
      able to pay her bills. The evidence shows, and Yalanda concedes in her
      brief, that Jeremy had intent to commit theft, and that he caused bodily
      injury to another.

2015 WL 4507672, at *4.



                                    Second issue

      In the trial court’s jury charge, immediately after the application paragraph

that instructed on convicting Yalanda as a principal, the court included the following

paragraph instructing on what the jury would need to find to convict under a party

theory to capital murder:

      Or, if you believe from the evidence beyond a reasonable doubt that
      someone other than Yalanda Renee Lind, on or about the 13th day of
      October, 2008, in the County of McLennan and State of Texas, did then
      and there intentionally cause the death of an individual, namely,
      Rebecca Leonard, by stabbing and cutting Rebecca Leonard with a

                                                                                   -3-
      knife, and someone other than the Defendant was then and there in the
      course of committing or attempting to commit the offense or Robbery
      of Rebecca Leonard or Jerry Patterson, and you further find and believe
      beyond a reasonable doubt that Yalanda Renee Lind, acting with intent
      to promote or assist another person to commit said offense, solicited,
      encouraged, directed, aided, or attempted to aid another person to
      commit said offense, then you will find the Defendant guilty of the
      offense of Capital Murder, as alleged in Count 1 of the indictment in
      the same manner as if you found that the offense was committed by the
      Defendant’s own conduct, and so say by your verdict.
      While this paragraph correctly instructed that the evidence must show that

another person intentionally caused the death of Rebecca Leonard and that this other

person was in the course of committing robbery at the time, the paragraph did not

require a finding that Yalanda acted with intent to assist both offenses – only “said

offense.”   She argued on appeal that she was egregiously harmed in that this

instruction only required the jury to find that she intended to assist one of the

offenses – not both – thereby impermissibly decreasing the State’s burden of proof

and allowing for a non-unanimous verdict. The Tenth Court disagreed, citing

Holford v. State, 177 S.W.3d 454 (Tex.App.-Houston [1st Dist.] 2005, pet. ref’d):

      The defendant in Holford argued that the charge permitted the jury to
      convict him as a party to capital murder if he intended to aid in only
      one offense rather than in both offenses. Holford v. State, 177 S.W.3d
      at 460. In Holford, the Court noted that the charge describes the capital
      murder as necessarily occurring “while in the course of committing or
      attempting to commit the robbery.” Holford v. State, 177 S.W.3d at 461.
      The Court did not find that the charge was erroneous. We agree. We
      overrule Yalanda's third issue.
2015 WL 4507672, at *5.


                                                                                  -4-
                               Third and fourth issues

      Again, the State was proceeding under a party theory against Yalanda, both as

to the murder and the attempted robbery. For an accused can be found guilty as a

party for the conduct of another who intentionally committed the murder, it must be

shown that the accused harbored a specific “intent to promote or assist the

commission of” the intentional murder that the other committed. Lawton v. State,

913 S.W.2d 542, 554 (Tex. Crim. App. 1995). Twenty-one pages of Yalanda’s brief

are devoted to addressing each of the following pieces of evidence relied by the State

(from before the murder, at the time of the murder, and after the murder), and why

they did not add up to proof of Yalanda’s intent to kill:

      Purchase of the murder weapon
      Jeremy and Yalanda were not “boyfriend – girlfriend”
            at the time of the murder
      Yalanda was not angry at being asked to move out
      Yalanda owed Rebecca money
      Yalanda not in Rebecca’s will
      Yalanda’s conduct at the time of the murder
      Yalanda’s purported conversation with Jeremy about
            getting the ”money in the house”
      Were all the doors and windows locked?
      The trail of blood
      The “repositioned” knife
      “He killed the wrong one”
      Lack of sadness
      The Tenth Court disagreed, seizing upon the evidence that doors and windows

were locked, Yalanda and Jeremy were calmly discussing money, and Yalanda’s

statement “he killed the wrong one”:
                                                                                  -5-
      Jerry testified that the doors and windows were locked on the night of
      the murder and that neither he nor Rebecca unlocked the doors or
      windows that night. There was testimony from police officers that there
      was no evidence of a forced entry into the home. The jury could
      reasonably infer that Yalanda allowed Jeremy into the house on the
      night of the murder.
      Jerry testified that after he and Rebecca were attacked, Yalanda and
      Jeremy were calmly discussing money in the kitchen. Jerry did not see
      any altercation between Jeremy and Rebecca. There was also evidence
      that Yalanda did not suffer any visible injuries on the night of the
      offense.
      Debra McCall testified that Jerry is her husband's uncle. They received
      a call after the offense to come to the hospital. Debra testified that she
      saw Yalanda at the hospital on October 13. Yalanda told Debra that
      Jeremy had committed the offenses. Yalanda further told Debra, “he
      killed the wrong one.” Debra stated that Yalanda did not seem worried
      about her mother, but rather was more concerned about items in the
      house and the worth of those items. Debra testified that she assisted in
      cleaning the house after the offenses. Debra and Charlene Kirby, the
      executor of Rebecca's will, found cash hidden in the house.

2015 WL 4507672, at *5.


                        Statement of Procedural History

      Yalanda was convicted by a jury of capital murder (intentional killing of

Rebecca Leonard in the course of committing robbery) and aggravated assault

(causing bodily injury to Jerry Patterson with use/exhibition of a deadly weapon).

On June 30, 2014, the trial court sentenced Yalanda to life in prison without parole

for the capital murder conviction as required by law (the State chose not to pursue



                                                                                   -6-
the death penalty), and twenty years in prison on the aggravated assault conviction.

She timely filed her notice of appeal on June 30, 2014.

      Yalanda timely filed her notice of appeal June 3, 2014. The Tenth Court

affirmed Yalanda’s convictions and sentences in an unpublished opinion, Lind v.

State, No. 10-14-00201-CR, 2015 WL 4507672 (Tex.App.—Waco July 23, 2015).

      Yalanda was granted an extension through September 23, 2015 to file her

Petition for Discretionary Review. This PDR is therefore timely filed.




                                                                                -7-
                          Questions/Issues for Review

1. In a capital murder (murder committed in the course of attempting to commit
robbery) sufficiency of the evidence analysis under a parties theory, is it reasonable
for a reviewing court to infer from motive alone that the defendant had the
necessary intent to commit the robbery?


4 RR 99; 5 RR 13-18, 25-26, 76-77; 6 RR 151, 154, 192, 215; 7 RR 146-47; 8 RR
            153, 194, 197-99, 202-03, 244-45; CR 6; State Ex. 112


2. Should a party application paragraph in a capital murder jury charge require
the jury to specifically find that the defendant intended to assist both offenses –
murder and robbery – in order to find the defendant guilty?

                    4 RR 71; 8 RR 178, 238-39; CR 1391-93


3. The Waco Court improperly ignored undisputed facts in viewing the evidence
“in the light most favorable to the verdict.”


                  6 RR 72-73, 76-77, 83-85; 8 RR 13, 16-19, 25

4. The Tenth Court failed to apply the rigorous sufficiency of evidence review
required by Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).


 5 RR 121; 6 RR 35-36, 39-42, 45-46, 49-51, 54-55, 71, 76-77, 105-06, 116, 123,
151-53, 160, 198, 221-22, 270; 7 RR 35-38, 45-46, 199-200, 213-14; 8 RR 13-17,
 23-24, 29-30, 53-54, 77-78, 102-03, 118, 153-54, 167, 198, 240; State Ex. 108,
                               110; Def. Ex. 1-7



                                                                                    8
                                     Argument


      Reason for granting review regarding first issue

(a) The Tenth Court’s reliance on Yalanda’s motive to get money, in and of
itself, as constituting sufficient evidence of intent to commit theft is inconsistent
with Herrin v. State, 125 S.W.3d 436 (Tex. Crim. App. 2002) and Brewer v.
State, 126 S.W.3d 295 (Tex.App.—Beaumont 2004, pet. ref’d).


      In Herrin v. State, 125 S.W.3d 436 (Tex. Crim. App. 2002), wherein appellant

was convicted of capital murder under a “murder in the course of robbery” (and

kidnapping) theory, the Court of Criminal Appeals held that the evidence to sustain

the conviction under the robbery theory was insufficient:

      There is no evidence that appellant knew Wayne had any money in his
      wallet or that appellant even knew whether Wayne had his wallet with
      him, and there is no evidence linking appellant to the wallet. Finally,
      an intent to steal Wayne’s money cannot be reasonably inferred from
      evidence that Wayne owed appellant’s father money about $16,000 for
      repayment for the purchase of a vehicle and other loans. There was
      evidence that appellant had a balance of over $13,000 in his bank
      account, suggesting that he did not need money.
      Viewed in a light most favorable to the verdict, we cannot conclude
      there is sufficient evidence upon which a rational jury could find
      beyond a reasonable doubt that appellant formed the intent to commit
      a robbery before or at the time of the murder. . . . While appellant’s
      belief that Wayne or his family owed him money might supply the
      motive for murder, it does not supply the evidence that appellant took
      the wallet. (emphasis in original)
Id. at 441-42.

      In the instant case, any inferences would be based wholly on
      speculation arising from the missing wallet and appellant’s belief that

                                                                                    9
      Wayne or the Martindales owed him money. . . . [W]e have previously
      emphasized that (internal quotes omitted) if the evidence at trial raised
      on a suspicion of guilty, even a strong one, then that evidence is
      insufficient.

Id. at 443.

      In Brewer v. State, 126 S.W.3d 295 (Tex.App.—Beaumont 2004, pet. ref’d),

wherein appellant was convicted of capital murder (committing intentional murder

in the course of committing robbery), the Beaumont Court held that the evidence

was sufficient to prove an intentional killing, but not an intentional killing in the

course of robbery:

      There are three pieces of circumstantial evidence that support the
      [robbery]: (1) Brewer’s anger of whether Sasser [the deceased] had
      sold him the agreed-upon amount of drugs; (2) Brewer’s knowledge
      that Sasser had in his possession at least the several hundred dollars
      Brewer had just given him; and (3) the wallet found in the vehicle at
      the scene contained several cards indicating Sasser’s ownership of
      same, but contained no money. Item 3 . . . tends to establish that a theft,
      a required element of robbery, had occurred. Items one and two, . . .
      while establishing Brewer might have a motive to rob Sasser, do not
      prove that he had the intent to do so. These are clearly different mental
      states. (some internal quotes omitted) “Motive” refers to an emotion
      that would provoke or lead to the commission of a criminal offense. . .
      . A person acts with intent with respect to his conduct or to a result of
      his conduct when it is conscious objective or desire to engage in the
      conduct or cause the result. . . . While the evidence is sufficient to permit
      the jury to logically infer that Brewer had a provocation that could lead
      to the commission of a robbery, no logical inference can be drawn from
      the evidence that had formed the requisite conscious objective or desire
      to rob Sasser either before or during the commission of the murder. . .
      . There is neither physical nor testimonial direct evidence that a theft or
      robbery of Sasser took place, much less any direct evidence implicating
      Brewer in any robbery. Further, there is no physical or testimonial
      evidence, direct or circumstantial, that would be probative of the
                                                                                      10
      formation by Brewer of the intent to commit a robbery before or during
      the murder. The trier of fact would have to speculate in order to reach
      such a conclusion. (emphasis added)

Id. at 302-03.




      Reasons for granting review regarding second issue

(a) The Tenth Court’s reliance on Holford v. State ignores the differences
between the application paragraph therein and the application paragraph in
the instant case.

      Again, the Tenth Court relied on Holford v. State, 177 S.W.3d 454 (Tex.App.-

Houston [1st Dist.] 2005, pet. ref’d) in addressing Yalanda’s complaint that the jury

charge impermissibly reduced the State’s burden of proof and also allowed for a

non-unanimous verdict. In order to address Holford, it is necessary to set forth the

complained of application paragraphs from each case:

                                      Holford

      If you find from the evidence beyond a reasonable doubt that on or
      about the 13th day of January, 2002, in Harris County, Texas, Harold
      Louis Vaughn, did then and there unlawfully while in the course of
      committing or attempting to commit the robbery of Trevor Cook,
      intentionally cause the death of Trevor Cook by striking Trevor Cook
      with a deadly weapon unknown to the Grand Jury, and that the
      defendant, David Charles Holford, with the intent to promote or assist
      the commission of the offense, if any, solicited, encouraged, directed,
      aided or attempted to aid Harold Louis Vaughn to commit the offense,
      if he did;

      ... then you will find the defendant guilty of capital murder, as charged
      in the indictment.

                                                                                  11
Holford, 177 S.W.3d at 460.

      In Horford, the sentence structure begins with the subject being the principal

(Harold Louis Vaughn) – not the defendant prosecuted under a party theory (David

Holford). This subject is then followed by the dependent clause, “while in the course

of committing or attempting to commit the robbery of __________,” which is then

followed by the predicate in the sentence, “caused the death of ____________. A

dependent clause cannot stand alone, but is dependent upon information contained

elsewhere in the sentence. See Anne Stillman, Grammatically Correct, An Essential

Guide to Punctuation, Style, Usage & More, pg. 57 (2004 ed.). Thus in Horford, in

the subsequent prepositional phrase “with intent to promote or assist the commission

of the offense” (applied to the defendant under a party theory), “the offense” refers

back to both the robbery and the causing of death. See Holford, 177 S.W.3d at 461.

But the application paragraph herein is constructed differently.

                                    Instant case

      Or, if you believe from the evidence beyond a reasonable doubt that
      someone other than Yalanda Renee Lind, on or about the 13th day of
      October, 2008, in the County of McLennan and State of Texas, did then
      and there intentionally cause the death of an individual, namely,
      Rebecca Leonard, by stabbing and cutting Rebecca Leonard with a
      knife, and someone other than the Defendant was then and there in the
      course of committing or attempting to commit the offense or Robbery
      of Rebecca Leonard or Jerry Patterson, and you further find and believe
      beyond a reasonable doubt that Yalanda Renee Lind, acting with intent
      to promote or assist another person to commit said offense, solicited,
      encouraged, directed, aided, or attempted to aid another person to

                                                                                  12
       commit said offense, then you will find the Defendant guilty of the
       offense of Capital Murder, as alleged in Count 1 of the indictment in
       the same manner as if you found that the offense was committed by the
       Defendant’s own conduct, and so say by your verdict.
       Distilled to its relevant essentials, the application paragraph herein is

constructed thusly:

       If you believe that someone other than the defendant committed the

       offense of causing the death of ______, and you believe that someone

       other than the defendant was in the course of committing the offense of

       robbery of ________, and you further believe the defendant assisted in

       the commission of the offense, then . . .

The phrase “and you further believe the defendant assisted in the commission of the

offense,” is a limiting clause. Under the grammatical “rule of the last antecedent,”

a limiting clause should read as modifying only the phrase that it immediately

follows.    See Barnhart v. Thomas, 540 U.S. 20, 26-27 (2003).                     Therefore

grammatically, “the offense” refers only to the robbery, not the causing of death.

       It should also be noted that the charge contained no language specifically

instructing the jury that in order to find Yalanda guilty of capital murder, the jury

had to find that she was assisting in both the causing of death and the robbery.1



1
  By way of contrast, in Holford, the jury charge included the following cautionary instruction
immediately before the application paragraph:


                                                                                            13
(b) The Tenth Court’s reliance on Holford v. State, a Houston First Court
decision, ignores the First Court’s decision in Duke v. State, 950 S.W.2d 424
(Tex.App.—Houston [1st Dist.] 1997, pet. ref’d).

       In Duke v. State, 950 S.W.2d 424 (Tex.App.—Houston [1st Dist.] 1997, pet.

ref’d), wherein the appellant was convicted of capital murder (intentional murder in

the course of robbery) under a party theory, appellant argued that he was harmed by

an obverse instruction that required only that the jury find that he aided in the

commission of the robbery. Id. at            426-27. The State’s response and the First

Court’s comments thereon:

       Focusing on the application paragraph, the State argues use of “with
       intent to promote or assist the commission of the offense” was not
       erroneous. In most cases, i.e., those involving only one offense, we
       would agree with the State. However, the offense in question here is
       actually a combination of two offenses, murder and robbery. Under
       these circumstances, “the offense” in the application paragraph is
       ambiguous. We cannot overlook the danger a jury might seek
       clarification by referring to the obverse instruction which erroneously
       applied the specific intent of the law of parties to robbery, instead of
       capital murder, as the offense. Accordingly, we agree with appellant
       that the obverse instruction rendered the jury charge erroneous.

Id. at 427-28.

       [T]he error lay in instructing the jury, in regard to appellant’s guilt as a
       party to the murder – robbery of Matthew Vickers, that appellant need
       only have had intent to promote and assist the commission of robbery,

       Before you would be warranted in finding the defendant guilty of capital murder, ... you
       must find from the evidence beyond a reasonable doubt that the defendant, David Charles
       Holford, with the intent to promote or assist in the commission of the offense of robbery, if
       any, solicited, encouraged, directed, aided, or attempted to aid Harold Louis Vaughn in
       cutting or striking Trevor Cook, if he did, with the intention of thereby killing Trevor
       Cook....
Holford, 177 S.W.3d at 461.
                                                                                                 14
      rather than capital murder. The obvious danger is that the jury might
      have found appellant guilty as a party to the murder-robbery of Vickers
      without finding beyond a reasonable doubt that appellant intended to
      promote and assist the omission of the murder, as well as the robbery.
      As appellant argues, this would have impermissibly diminished the
      State’s burden of proof. (emphasis added)

Id. at 428.

      The First Court ultimately held the error to be harmless because (1) the error

occurred only in the obverse charge, not the application paragraph, and (2) the only

theory submitted to the jury and argued to the jury was appellant’s guilt as the

primary actor – not as a party. Id. at 429.

      Unlike the facts in Duke, the issue of whether or not Yalanda intended to assist

in the commission of either offense was hotly contested as were the closing

arguments. Because the application paragraph didn’t require the jury to find that

Yalanda assisted in both the murder and the underlying robbery, the jury may have

returned a nonunanimous verdict – some believing she assisted in the robbery –

others believing she assisted in the murder. See Cosio v. State, 353 S.W.3d 766,

771-72 (Tex. Crim. App. 2011). Because it is impossible to tell whether the jury

was unanimous, Yalanda has shown egregious harm. See Clear v. State, 76 S.W.3d

622, 624 (Tex.App.—Corpus Christi 2002, no pet.) (egregious harm shown where it

was impossible to determine whether jury was unanimous); Robinson v. State, 266

S.W.3d 8, 14-15 (Tex.App.—Houston [1st Dist.] 2008, pet. ref’d) (“Our review of

the record leads us to conclude that a rational juror could have found Robinson guilty
                                                                                   15
beyond a reasonable doubt of capital murder based on either the valid theory or the

invalid theory.” . . . “[I]t is impossible to tell from the record which ground for

conviction the jury selected. Having conducted an Almanza analysis, we hold that

appellant was egregiously harmed by the error in the jury charge.”).




      Reasons for granting review regarding third and fourth issues

(a) The Waco Court’s sufficiency of the evidence analysis as to Yalanda’s intent
to commit the murder improperly failed to take into account undisputed facts,
thus putting the opinion in conflict with Evans v. State, 202 S.W.3d 158 (Tex.
Crim. App. 2006).

      In Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006), the Court of

Criminal Appeals held that if the undisputed facts allow only one logical inference,

neither jurors nor the reviewing court may disregard those facts. Id. at 162-63.

      Conclusive evidence is dispositive of the fact or element at issue. Such
      evidence “becomes conclusive (and thus cannot be disregarded) when
      it concerns physical facts that cannot be denied,” or “when a party
      admits it is true.”

Id. at 163 n. 16 (citing City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex.2005)).

      The Tenth Court’s reliance on Jerry’s testimony that he had not unlocked the

doors and windows the night of the events in question improperly fails to take into

account the undisputed fact that one of the doors could easily have been opened from

outside. The following facts are undisputed regarding the night in question: (1) One

of the entry doors to the house was only a storm door; (2) that storm door did not

                                                                                   16
have a lock, only a hook that fit into a loop; (3) even when the hook was in the loop,

there was a gap between the door and the door frame, allowing an intruder to use a

narrow object to displace the loop and open the door.2

          Additionally, the Court of Criminal Appeals has held that a legal sufficiency

review is to be rigorous3, and requires that all the evidence be considered.4 On cross-

examination Jerry admitted he couldn’t say for sure that the windows were all

secured. The Waco Court makes no mention of this in its opinion.




(b) Inferences made by the Waco Court regarding Yalanda’s conversation with
Lowrey about money were improper in light of Hooper v. State, 214 S.W.3d 9
(Tex. Crim. App. 2007) and Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim.
App. 1992).

          Again, the Tenth Court relied in part in its sufficiency analysis on the fact that

“Yalanda and Jeremy were calmly discussing money in the kitchen.” 2015 WL

4507672, at *5. As noted above, the discussion was about Yalanda’s money – not

Rebecca’s money.

          “In the law of evidence, an inference . . . is a logical consequence flowing

from a proven fact.” Brewer, 126 S.W.3d at 297. “Logic” is “the apparently

unavoidable cause and effect relationship of events leading to a particular

2
    Defendant’s exhibits 1-7, photos depicting this door, are attached hereto as Appendix B.
3
    Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).
4
    Winfrey v. State, 323 S.W.3d 875, 878-79 (Tex. Crim. App. 2010)

                                                                                               17
conclusion.” New Webster’s Dictionary of the English Language 562 (1971).

“Logical relevancy” is defined thusly:

      Existence of such a relationship in logic between the fact of which
      evidence is offered and a fact in issue that the existence of the former
      renders probable or improbable the existence of the latter.

      Black's Law Dictionary 942 (6th ed. 1990).

      In Urbano the appellant argued that his capital murder conviction for

committing murder for remuneration or the promise of remuneration was not

supported by sufficient evidence. Urbano, 837 S.W.2d at 115. The Court of

Criminal Appeals agreed:

      [T]he evidence and reasonable inferences therefrom established that at
      the time of the offense appellant was a member of a prison gang; that
      the gang had definite rules regarding murder, promotion in rank, and
      the consequences of promotion in rank; i.e., increased access to money,
      drugs, and goods; that appellant murdered on behalf of the gang; and
      that after the murder he rose in rank. There was no direct evidence,
      however, that at the time of the killing, appellant was aware of the gang
      rules in question and that he acted with those rules in mind. Nor was
      there circumstantial evidence from which the jurors could conclude
      beyond a reasonable doubt that appellant must have known of the
      relevant gang rules and committed the murder to receive a benefit from
      the operation of the rules. Certainly, the evidence raises a strong
      suspicion that appellant acted with the gang rules in mind, that is, that
      he murdered with an expectation of tangible benefit. But appellant’s
      intent or state of mind with respect to an expectation of benefit was not
      proven to a high degree of certainty. Rational jurors could not
      conclude beyond a reasonable doubt simply from appellant’s
      membership in the gang that he was aware of all the gang’s rules.




                                                                                  18
      (emphasis added)

Id. at 116-17.

      In Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007), wherein appellant

was convicted of aggravated assault of a public servant, the Court of Criminal

Appeals addressed, inter alia, what is and what is not a reasonable inference. Id. at

15-17. The following language is instructive:

      Under the Jackson [v. Virginia] test, . . . juries are permitted to draw
      multiple reasonable inferences from the evidence (direct or
      circumstantial), but they are not permitted to draw conclusions based
      on speculation. Without concrete examples, it can be difficult to
      differentiate between inferences and speculation, and between drawing
      multiple reasonable inferences versus drawing a series of factually
      unsupported speculations. This hypothetical might help clarify the
      difference. A woman is seen standing in an office holding a smoking
      gun. There is a body with a gunshot wound on the floor near her. Based
      on these two facts, it is reasonable to infer that the woman shot the gun
      (she is holding the gun, and it is still smoking). Is it also reasonable to
      infer that she shot the person on the floor? To make that determination,
      other factors must be taken into consideration. If she is the only person
      in the room with a smoking gun, then it is reasonable to infer that she
      shot the person on the floor. But, if there are other people with smoking
      guns in the room, absent other evidence of her guilt, it is not reasonable
      to infer that she was the shooter. No rational juror should find beyond
      a reasonable doubt that she was the shooter, rather than any of the other
      people with smoking guns. To do so would require impermissible
      speculation. But, what if there is also evidence that the other guns in the
      room are toy guns and cannot shoot bullets? Then, it would be
      reasonable to infer that no one with a toy gun was the shooter. It would
      also be reasonable to infer that the woman holding the smoking gun
      was the shooter. This would require multiple inferences based upon the
      same set of facts, but they are reasonable inferences when looking at
      the evidence. We first have to infer that she shot the gun. This is a
      reasonable inference because she is holding the gun, and it is still
      smoking. Next, we have to infer that she shot the person on the floor.
                                                                                    19
       This inference is based in part on the original inference that she shot the
       gun, but is also a reasonable inference drawn from the circumstances.

Id. at 15-16.

       The Waco Court could not reasonably infer that because Yalanda and Lowery

were discussing Yalanda’s money (or lack thereof), Yalanda therefore had an intent

to steal Rebecca’s money.



(c) Inferences made by the Waco Court regarding Yalanda’s statement, “he
killed the wrong one,” were improper in light of Winfrey v. State,
393 S.W.3d 763 (Tex. Crim. App. 2013).


       Again, the Waco Court relied in part in its sufficiency analysis on the fact that

“Yalanda further told Debra, ‘he killed the wrong one.’” 2015 WL 4507672, at *5.

The relevant exchange was as follows:

 State: Were you able to go see Jerry at that time?
 Debra: No, I wasn’t.
 State: What happened next?
 Debra: They told me that I could go and be with Yalanda if that’s what I wanted
  to do. So they had her in a room, which at the time I didn’t know she was in the
  room with her mother. But they took me back there to where she was.
 State: And what did you see when you got to that room?
 Debra: I opened the door to the room where she was standing by her mother. And
  as I was walking in, her first words to me was, he killed the wrong one.
 ...
 State: When she said, he killed the wrong one, would that indicate to you that
  there was a right one that should have been killed?

                                                                                     20
    Debra: You would assume that, yes.
6 RR 123. The Waco Court apparently infers from this exchange that Yalanda

wanted Jerry killed – not Rebecca.

        In Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013), appellant was

convicted of, inter alia, capital murder during the course of robbery. Id. at 765. The

only evidence actually connecting appellant to the crime scene was a dog scent

lineup. Id. Other evidence relied on by the State included the following:

     • Appellant spoke with her ex-husband about “having attended a concert
        together around the time of murder,” a statement interpreted by appellant’s
        ex-boyfriend as an attempt to establish an alibi;
     • Appellant told her boyfriend at the time (after the murder), while they were
        partying and drinking, that going into the decedent’s home “was an easy lick,”
        interpreted by the boyfriend to mean “she would get money;
     • Appellant was heard by a teacher to say to decedent at school5 “When are you
        going to take me out and spend that money that you have? We all know you
        have money hid at home”;
     • Appellant was overheard by a teacher, referring to decedent, “Somebody
        should beat the shit out of him.”
Id. at 766.

        The Court of Criminal Appeals noted, “a strong suspicion of guilt does not

equate with legally sufficient evidence of guilt.” Id. at 769. The Court held the



5
  Appellant was a high school student at the time of the murder and the decedent worked at the
high school. Id. at 764.
                                                                                           21
evidence to be legally insufficient:

      The circumstantial evidence that the state presents as indicia of
      appellant's guilt of the capital-murder offense appears more speculative
      than inferential as to appellant's guilt.

Id. at 771.

      Basing a finding of appellant's guilt on this evidence and all of the other
      evidence is, at best, “mere theorizing or guessing” about appellant's
      possible guilt rather than a reasonable inference based upon evidence
      and facts presented. “A conclusion reached by speculation ... is not
      sufficiently based on facts or evidence to support a finding beyond a
      reasonable doubt.” Hooper v. State, 214 S.W.3d at 16. After reviewing
      all of the evidence in the light most favorable to the guilty verdict, we
      hold that the evidence merely raises a suspicion of appellant's guilt and
      is legally insufficient to support a conviction of capital murder beyond
      a reasonable doubt. Accordingly we sustain appellant's first ground for
      review.

Id. at 772-73.

      As to the instant case Debra McCall’s deceased husband (to whom she had

been married 18 years) was Jerry’s nephew. She was very close to him. It would

absolutely defy logic for Yalanda to tell Debra to her face that Jerry was the one she

meant to have killed. Yet that is the inference the Waco Court makes. Additionally,

this statement by Yalanda was far less damning than the four statements in Winfrey

that the Court of Criminal Appeals found insufficient to establish guilt.




                                                                                    22
                                  Prayer for Relief

      Yalanda requests that this Court grant review, and after full briefing on the

merits, reverse the Tenth Court’s holding with a directive of acquittal on both the

capital murder count and the aggravated assault count.

      Alternatively, Yalanda requests that this Court reverse the Tenth Court’s

holding that the jury charge was proper and remand the cause for a new trial.

      Alternatively, Yalanda requests that this Court reverse the Tenth Court’s

holding that there was sufficient evidence as to Yalanda’s guilt as a party to robbery,

and remand the case for a new punishment hearing on murder – not capital murder.



                                              Respectfully submitted,
                                              /s/ John A. Kuchera
                                              John A. Kuchera
                                              210 N. 6th St.
                                              Waco, Texas 76701
                                              (254) 754-3075
                                              (254) 756-2193 (facsimile)
                                              SBN 00792137
                                              johnkuchera@210law.com
                                              Attorney for Petitioner




                                                                                    23
                              Certificate of Service

      This is to certify that copies of the above-entitled Petition for Discretionary

Review have been served on both the District Attorney of McLennan County, Texas,

and the State Prosecuting Attorney, by delivery of a true copy to them by mail, by

depositing same, in an official depository under the care and custody of the United

States Postal Service on the 23rd day of September, 2015, enclosed as follows:

      Mr. Sterling Harmon
      Assistant District Attorney
      219 N. 6th St., Suite 200
      Waco, Texas 76701
      Mr. Gabe Price
      Assistant District Attorney
      219 N. 6th St., Suite 200
      Waco, Texas 76701

      State Prosecuting Attorney
      P.O. Box 12405
      Austin, Texas 78711

                   /s/ John A. Kuchera
                   John A. Kuchera, Attorney for Petitioner
                   Yalanda Renee Lind




                                                                                  24
                      Certificate of Compliance with Rule 9.4

1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4(i)
because the brief contains 4,243 words, excluding the parts of the brief exempted by
Tex. R. App. P. 9.4(i)(1).


2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) and
the type style requirements of Tex. R. App. P. 9.4(e) because the brief has been
prepared in a proportionally spaced typeface using Microsoft Word 2013 in Times
New Roman, size 14 font.



/s/ John A. Kuchera
John A. Kuchera

Attorney for: Yalanda Renee Lind

Dated: September 23, 2015




                                                                                 25
Appendix A
Lind v. State, Not Reported in S.W.3d (2015)


                                                                that the evidence is insufficient to support her conviction
                                                                for aggravated assault. The Court of Criminal Appeals has
                  2015 WL 4507672
                                                                expressed our standard of review of a sufficiency issue as
    Only the Westlaw citation is currently available.
                                                                follows:
          SEE TX R RAP RULE 47.2 FOR
                                                                  In determining whether the evidence is legally sufficient
    DESIGNATION AND SIGNING OF OPINIONS.
                                                                  to support a conviction, a reviewing court must consider
                    DO NOT PUBLISH                                all of the evidence in the light most favorable to the
                 Court of Appeals of Texas,                       verdict and determine whether, based on that evidence
                           Waco.                                  and reasonable inferences therefrom, a rational fact finder
                                                                  could have found the essential elements of the crime
             Yalanda Renee Lind, Appellant                        beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
                            v.                                    307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
              The State of Texas, Appellee                        13(Tex.Crim.App.2007). This "familiar standard gives full
                                                                  play to the responsibility of the trier of fact fairly to resolve
           No.     10- 14- 00201- CR |                            conflicts in the testimony, to weigh the evidence, and to
        Opinion delivered and filed July 23, 2015                 draw reasonable inferences from basic facts to ultimate
                                                                  facts." Jackson, 443 U.S. at 319. "Each fact need not point
From the 54th District Court, McLennan County, Texas              directly and independently to the guilt of the appellant,
Trial Court No. 2012-1147-C2                                      as long as the cumulative force of all the incriminating
Attorneys and Law Firms                                           circumstances is sufficient to support the conviction."
                                                                  Hooper, 214S.W.3dat 13.
John A. Kuchera, for Yalanda Renee Lind.
                                                                Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App.2011),
Abel Reyna, Sterling A. Harmon, Gabriel Price, for The State    certden'd, 132 S.Ct. 2712, 183 L.Ed.2d 71 (2012).
of Texas.
                                                                The Court of Criminal Appeals has also explained that
Before Chief Justice Gray, Justice Davis, and Justice           our review of "all of the evidence" includes evidence that
Scoggins                                                        was properly and improperly admitted. Conner v. State,
                                                                67 S.W.3d 192, 197 (Tex.Crim.App.2001). And if the
                                                                record supports conflicting inferences, we must presume
              MEMORANDUM OPINION                                that the factfinder resolved the conflicts in favor of
                                                                the prosecution and therefore defer to that determination.
AL SCOGGINS, Justice                                            Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781,
                                                                61 L.Ed.2d 560 (1979). Further, direct and circumstantial
 *1 The jury convicted Yalanda Lind of the offense of capital
                                                                evidence are treated equally: "Circumstantial evidence is as
murder and the offense of aggravated assault. The trial court
                                                                probative as direct evidence in establishing the guilt of an
assessed punishment at life in prison without the possibility
                                                                actor, and circumstantial evidence alone can be sufficient
for parole for the capital murder conviction, and the trial
                                                                to establish guilt." Hooper v. State, 214 S.W.3d 9, 13
court assessed punishment at twenty years confinement for
                                                                (Tex.Crim.App.2007). Finally, it is well established that the
the aggravated assault conviction. We affirm.
                                                                factfinder is entitled to judge the credibility of witnesses and
                                                                can choose to believe all, some, or none of the testimony
                                                                presented by the parties. Chambers v. State, 805 S. W.2d 459,
                 Sufficiency of the Evidence                    461 (Tex.Crim.App.1991).

In the first issue, Lind complains that the evidence is         Yalanda Lind lived with her mother, Rebecca Leonard, and
insufficient to support her conviction for capital murder.      her mother's boyfriend, Jerry Patterson. Rebecca and Jerry
In the second issue, Lind argues that because there was         told Yalanda that she needed to move out of their home
no evidence she attempted to rob the victims, she was           by November 1, 2008. Yalanda was in a relationship with
only guilty of murder. In the fourth issue, Lind complains      Jeremy Lowrey during the time she lived with her mother.


WesttawNext © 2015 Thomson Reuters. No claim to original I,
Lind v. State, Not Reported in S.W.3d (2015)



Yalanda testified that the she ended the relationship with         and threw him off of her. Yalanda said that the attacker was
Jeremy around September 27, 2008.                                  wearing a mask at that time. Yalanda continued to fight and
                                                                   struggle with the attacker. Yalanda screamed for help, and
 *2 During the early morning hours of October 13, 2008,            she heard her mother call her name. The attacker got off of
Rebecca and Jerry were asleep in their bed when Rebecca            Yalanda and went to Rebecca. Yalanda was able to get up, and
got up from their bed and told Jerry she was going to              she saw the attacker on top of her mother. Yalanda screamed
check on Yalanda. Jerry testified that Rebecca walked              for Jerry to come help. The attacker then got off of Rebecca
toward the hallway and called, "Yalanda." Jerry stated that        and went in Jerry and Rebecca's bedroom.
when Rebecca got to Yalanda's room, Rebecca screamed
"Yalanda," as if something scared her. Jerry said that Rebecca     Yalanda looked into the bedroom and saw the person
then screamed a "death scream." When Jerry got to Rebecca,         attacking Jerry. She jumped on the attacker's back and hit him,
she had been stabbed in her lungs and was lying on the floor.      but she could not budge the attacker. She left the bedroom to
Jerry did not see Yalanda with her mother.                         go get a phone to call 9-1-1 for help. Yalanda testified that
                                                                   she called 9-1-1 from the kitchen. The attacker then came
Jerry testified that he was then hit from behind, and it knocked   into the kitchen and slammed Yalanda into the counter and
him into the wall. A man with a mask came and stabbed              kicked her. Yalanda grabbed the mask and saw that Jeremy
Jerry in the chest. Jerry struggled with the man and received      was the attacker. Yalanda stated that Jeremy then hit her
multiple stab wounds. Jerry testified that Yalanda never came      head into the stove. Jerry then came through bleeding heavily.
to help him during the attack. The man eventually left Jerry,      Jerry was trying to get out of the door, and Jeremy chased
but returned when Jerry tried to go for the knife. Jerry was       him. Yalanda testified that Jeremy screamed "where is the
stabbed again, and he told the man "don't kill me." The man        money" and Jerry said, "we ain't got none." Yalanda then
again left Jerry bleeding heavily, and Jerry decided to try to     began calmly telling Jeremy they did not have any money in
leave the house.                                                   an effort to distract him so that Jerry could leave. Jerry was
                                                                   able to leave the house, and Jeremy then ran out of the house.
Jerry testified that he went through the hallway to go out         Yalanda went to her mother who was bleeding heavily and
the door, and he saw Yalanda in the kitchen sitting in front       not responding. When the police arrived, Yalanda told them
of the stove talking to the man who attacked him. Jerry            that Jeremy was the attacker.
said that the man asked Yalanda, "where is the money" and
Yalanda responded "there's not any money." Jerry escaped            *3 As alleged in the indictment, a person commits the
to a neighbor's house, and asked his neighbor to call 9-1-1.       offense of capital murder if the person commits murder
Jerry had numerous stab wounds, and was in the hospital for        as defined under Section 19.02(b)(l) and the person
several weeks to recover from his injuries.                        intentionally commits the murder in the course of committing
                                                                   or attempting to commit ... robbery. TEX. PENAL CODE
When officers arrived at the scene, Yalanda told them that         ANN. 19.03(a)(2) (West Supp.2014). A person commits the
Jeremy was the attacker, and she gave a description of Jeremy.     offense of robbery if in the course of committing theft, and
Officers were able to locate Jeremy and take him into custody.     with the intent to obtain or maintain control of the property,
Officers who arrived at the scene testified that there was blood   a defendant knowingly or recklessly causes bodily injury
everywhere in the residence. Yalanda led the officers to the       to another or intentionally or knowingly threatens or places
hallway where Rebecca was lying on the floor. Sergeant Jason       another in fear of imminent bodily injury or death. TEX.
Lundquist performed CPR on Rebecca until medical personal          PENAL CODE ANN. § 29.02(a) (West 2011). A person
arrived at the scene, but Rebecca died from her injuries.          commits the offense of aggravated assault if the person
Officers testified that there was no sign of forced entry at the   intentionally, knowingly, or recklessly causes bodily injury
residence and that Yalanda did not have any visible injuries.      to another and uses or exhibits a deadly weapon during
                                                                   the commission of the assault. TEX. PENAL CODE ANN.
Yalanda testified at trial that on the night of October 12,2008,   22.02(a)(2)(West2011).
she was asleep in her room, and she heard the dog bark.
Yalanda woke up and saw a person at the end of her bed.            The charge instructed the jury on the law of parties.
Yalanda said that the person jumped on top of her and put
a cushion over her face. Yalanda struggled with the person,        Section 7.01 of the Texas Penal Code provides:
Lind v. State, Not Reported in S.W.Sd (2015)


                                                                 Jerry testified that after he and Rebecca were attacked,
  (a) A person is criminally responsible as a party to an        Yalanda and Jeremy were calmly discussing money in the
  offense if the offense is committed by his own conduct,        kitchen. Jerry did not see any altercation between Jeremy and
  by the conduct of another for which he is criminally           Rebecca. There was also evidence that Yalanda did not suffer
  responsible, or by both.                                       any visible injuries on the night of the offense.

  (b) Each party to an offense may be charged with
                                                                 Debra McCall testified that Jerry is her husband's uncle. They
  commission of the offense.
                                                                 received a call after the offense to come to the hospital. Debra
  (c) All traditional distinctions between accomplices and       testified that she saw Yalanda at the hospital on October 13.
  principals are abolished by this section, and each party to    Yalanda told Debra that Jeremy had committed the offenses.
  an offense may be charged and convicted without alleging       Yalanda further told Debra, "he killed the wrong one." Debra
  that he acted as a principal or accomplice.                    stated that Yalanda did not seem worried about her mother,
                                                                 but rather was more concerned about items in the house and
TEX. PENAL CODE ANN. § 7.01 (West 2011). A person                the worth of those items. Debra testified that she assisted in
is criminally responsible for an offense committed by the        cleaning the house after the offenses. Debra and Charlene
conduct of another if:                                           Kirby, the executor of Rebecca's will, found cash hidden in
                                                                 the house.
  (1) acting with the kind of culpability required for the
  offense, he causes or aids an innocent or nonresponsible        *4 There was evidence that Yalanda owed Rebecca money.
  person to engage in conduct prohibited by the definition of    Rebecca kept a ledger recording the amount of money owed
  the offense;                                                   to her by Yalanda. Jerry and Rebecca told Yalanda that she
  (2) acting with intent to promote or assist the commission     would have to move out of the house, and Yalanda testified
  of the offense, he solicits, encourages, directs, aids, or     that she did not have enough money to be able to pay her bills.
  attempts to aid the other person to commit the offense; or
                                                                 The evidence shows, and Yalanda concedes in her brief,
  (3) having a legal duty to prevent commission of the           that Jeremy had intent to commit theft, and that he caused
  offense and acting with intent to promote or assist its        bodily injury to another. There was testimony that the house
  commission, he fails to make a reasonable effort to prevent    was locked and there were no signs of forced entry. Jerry
  commission of the offense.                                     testified that Yalanda was calm when she was talking to
                                                                 Jeremy after the attack and that she was not fighting him
TEX. PENAL CODE ANN. § 7.02(a) (West 2011).                      or trying to escape. In a circumstantial evidence case, it is
                                                                 unnecessary for every fact to point directly and independently
In determining whether an individual is a party to an offense,   to the guilt of the accused; rather, it is enough if the finding
the court may look to events occurring before, during, and       of guilt is warranted by the cumulative force of all the
after the commission of the offense, and may rely on actions     incriminating evidence. Johnson v. Stale, 871 S.W.2d 183,
of the defendant that show an understanding and common           186 (Tex.Crim.App. 1993). Viewing all of the evidence in the
design to do the prohibited act. Cordova v. State, 698 S.W.2d    light most favorable to the verdict, we find that a rational trier
107,111 (Tex.Crim.App.1985). The jury is permitted to draw       of fact could have found that Yalanda acted with intent to
multiple reasonable inferences from the evidence presented       promote or assist the commission of the offenses and aided
as long as each is supported by the record. Hooper v. State,     in committing the offenses of capital murder and aggravated
214 S.W.3d 9, 15 (Tex.Crim.App.2007).                            assault. We overrule Yalanda's first and fourth issues on
                                                                 appeal. Because of our disposition of the first issue, we need
Jerry testified that the doors and windows were locked on the    not address Yalanda's second issue. TEX.R. APP. 47.1.
night of the murder and that neither he nor Rebecca unlocked
the doors or windows that night. There was testimony from
police officers that there was no evidence of a forced entry
into the home. The jury could reasonably infer that Yalanda                               Jury Charge
allowed Jeremy into the house on the night of the murder.
                                                                 In the third issue, Yalanda argues that the trial court erred
                                                                 "in submitting a party application paragraph in the capital



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Lind v. State, Not Reported in S.W.3d (2015)



murder portion of the jury charge that did not require a                than the Defendant was then and there in the course
finding that [she] intended to assist in both offenses—murder           of committing or attempting to commit the offense of
and robbery—thereby allowing for a nonunanimous verdict."               Robbery of Rebecca Leonard or Jerry Patterson, and you
Appellate review of alleged jury-charge error involves a                further find and believe beyond a reasonable doubt that
two-step process. Abdnor v. State, 871 S.W.2d 726, 731                  Yalanda Renee Lind, acting with intent to promote or
(Tex.Crim.App. 1994). Initially, the court must determine               assist another person to commit said offense, solicited,
whether error actually exists in the charge. If error is found,         encouraged, directed, aided, or attempted to aid another
the court must then evaluate whether sufficient harm resulted           person to commit said offense, then you will find the
from the error to require reversal. Id. at 731-32. Ifanerrorwas         Defendant guilty of the offense of Capital Murder, as
properly preserved by objection, reversal will be necessary             alleged in Count I of the indictment in the same manner
if the error is not harmless. Almanza v. State, 686 S.W.2d              as if you found that the offense was committed by the
157, 171 (Tex.Crim.App. 1985). Conversely, if error was not             Defendant's own conduct, and so say by your verdict.
preserved at trial by a proper objection, a reversal will be
granted only if the error presents egregious harm, meaning            In Holford v. State, 111 S.W.3d 454, (Tex.App.-Houston
appellant did not receive a fair and impartial trial. Id. To          [1 Dist.] 2005, pet. refd), the court considered similar
obtain reversal for jury-charge error, appellant must have            language used in a charge on the law of parties in a capital
suffered actual harm and not just merely theoretical harm.            murder case. In Holford, the charge also included language
Sanchezv. State, 376 S.W.3d 767,775 (Tex.Crim.App.2012);              instructing the jury that if they found someone other than the
Arline v. State, 721 S.W.2d 348, 352 (Tex.Crim.App.1986).             defendant did then and there unlawfully, while in the course
Yalanda did not object to the application paragraph of the            of committing or attempting to commit the robbery of the
charge.                                                               victim, intentionally cause the death of the victim by cutting
                                                                      the victim with a deadly weapon, namely, a knife, and that the
The application paragraph in the capital murder portion of the        defendant, with the intent to promote or assist the commission
charge instructed the jury as follows:                                of the offense, if any, solicited, encouraged, directed, aided or
                                                                      attempted to aid another person to commit the offense, then
  Now bearing in mind the foregoing instructions, if you              they will find the defendant guilty of capital murder. Holford
  believe from the evidence beyond a reasonable doubt, that           v. State, 177S.W.3dat460.
  the Defendant, Yalanda Renee Lind, on or about the 13th
  day of October, 2008, in the County of Mclennan and                The defendant in Holford argued that the charge permitted the
  State of Texas, as alleged in Count I of the indictment,           jury to convict him as a party to capital murder if he intended
  did then and there intentionally cause the death of an             to aid in only one offense rather than in both offenses. Holford
  individual, namely, Rebecca Leonard, by stabbing and               v. State, 177 S.W.3d at 460. In Holford, the Court noted
  cutting Rebecca Leonard with a knife, and the Defendant            that the charge describes the capital murder as necessarily
  was then and there in the course of committing or                  occurring "while in the course of committing or attempting
  attempting to commit the offense of Robbery of Rebecca             to commit the robbery." Holford v. State, 111 S.W.3d at 461.
  Leonard or Jerry Patterson, then you will find the                 The Court did not find that the charge was erroneous. We
  Defendant guilty of the offense of Capital Murder, as               agree. We overrule Yalanda's third issue.
  alleged in Count I of the indictment and so say by your
  verdict;
                                                                                                Conclusion
   *5 Or, if you believe from the evidence beyond
  a reasonable doubt that someone other than Yalanda                  We affirm the trial court's judgment.
  Renee Lind, on or about the 13th day of October,
  2008, in the County of Mclennan and State of Texas;
  did then and there intentionally cause the death of an              All Citations
  individual, namely, Rebecca Leonard, by stabbing and
  cutting Rebecca Leonard with a knife, and someone other             Not Reported in S.W.Sd, 2015 WL 4507672


 End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.
Appendix B
DEFENDANT'S
  EXHIBIT
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DEFENDANT'S EXHIBIT NUMBER 2
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- DEFENDANT'S
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      3
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. DEFENDANT'S
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  •    v.
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