                                                                                             ACCEPTED
                                                                                         13-14-00742-CR
                                                                         THIRTEENTH COURT OF APPEALS
                                                                                CORPUS CHRISTI, TEXAS
                                                                                    6/17/2015 3:30:26 PM
                                                                                  CECILE FOY GSANGER
                                                                                                  CLERK

      CAUSES 13-14-00742-CR, 13-14-00743-CR, & 13-14-00744-CR

      IN THE THIRTEENTH SUPREME JUDICIAL DISTRICT  OF TEXAS AT
                                               RECEIVED IN
                                                          13th COURT OF APPEALS
                                                       CORPUS CHRISTI/EDINBURG, TEXAS
          FILED                    CORPUS CHRISTI,   TEXAS
                                                           6/17/2015 3:30:26 PM
IN THE 13TH COURT OF APPEALS
  CORPUS CHRISTI - EDINBURG                                 CECILE FOY GSANGER
                                                                   Clerk
        6/17/15
CECILE FOY GSANGER, CLERK
BY DTello                      CHARLES DANE HILL, APPELLANT

                                            VS.

                               THE STATE OF TEXAS, APPELLEE




                                     APPELLANT’S BRIEF

            Trial Causes 13-11-9140, 13-11-9158, & 13-11-9159

                               Jackson County District Court




                                       Submitted by

                                    W. A. (BILL) WHITE
                                  Attorney for Appellant
                               POB 7422, Victoria, TX 77903
                                (361) 575-1774 voice & fax
                                       TBN 00788659


                               ORAL ARGUMENT NOT REQUESTED

                                             1
            IDENTITY OF PARTIES AND COUNSEL

    Appellant was represented at trial by Mr. Larry
Sauer, Attorney at Law, and Mr. Doran Sauer, Attorney
at Law, both of 1004 West Avenue, Austin, TX 78701.
Appellant is represented on appeal by Mr. W. A. (Bill)
White, Attorney at Law, POB 7422, Victoria, TX 77903-
7422.

    During trial, appellant was a resident of Jackson
County, Texas. Appellant is currently incarcerated in
IDTDCJ.

    The State was represented at trial by Mr. Robert E.
Bell, D.A. and Ms. Pam Guenther, A.D.A., both of the
Jackson County District Attorney’s Office, located at
115 W. Main Street, 2nd Flr, Edna, TX 77957.

    Appellant anticipates that the State’s reply brief
will be prepared and filed by Mr. Jim Vollers, 2201
Westover Road, Austin, TX 78703.




                           2
                      TABLE OF CONTENTS

                                               Page

Index of Authorities                            4

Appellant’s Brief                               5

Statement of the Case and Statement of Facts    5

Issues Presented                                10

Summary of Argument                             10

Argument                                        12

Issue I                                         12

THE TRIAL COURT ERRED BY DENYING APPELLANT’S REQUEST
FOR JURY INSTRUCTION ON SELF-DEFENSE BECAUSE APPELLANT
PLED “NOT GUILTY” WHEN TRIAL BEGAN


Issue II                                        15

THE EVIDENCE IS INSUFFICIENT TO SHOW THAT APPELLANT
KNEW JASON MCCARRELL WAS A PUBLIC SERVANT WHEN SHOOTING
AT HIM

Prayer                                          19

Certificate of Service                          19

Certificate of Compliance                       20




                              3
                 INDEX OF AUTHORITIES

Cases                                               Page

Anderson v. St., 11 S.W.3d 369 (Tex.App.-Houston 2000)

                                                    14

Conner v. St., 67 S.W.3d 192 (Tex.Crim.App. 2001)   16

Hamel v. St., 916 S.W.2d 491 (Tex.Crim.App. 1996)   15

Holberg v. St., 38 S.W.3d 137 (Tex.Crim.App. 2000) 16

Jackson v. Virginia, 443 U.S. 307 (1979)            15

MacDonald v. St., 761 S.W.2d 56 (Tex.App.-Houston 1998)

                                                    14

Saxton v. St., 804 S.W.2d 910 (Tex.Crim.App. 1991) 13

Vodochodsky v. St., 158 S.W.3d 502 (Tex.Crim.App.2005)

                                                    16

Walker v. St., 994 S.W.2d 199 (Tex.App.-Houston 1999)

                                                    15

Young v. St., 991 S.W.2d 835 (Tex.Crim.App. 1999)   14



Statutes

Tex.Pen.Code Ann., sec. 8.04(a)(Vernon 2013)        18




                           4
CAUSES 13-14-00742-CR, 13-14-00743-CR, & 13-14-00744-CR
   Trial Causes 13-11-9140, 13-11-9158, & 13-11-9159


CHARLES DANE HILL, Appellant        IN THE THIRTEENTH

VS.                                 COURT OF APPEALS AT

THE STATE OF TEXAS, Appellee        CORPUS CHRISTI, TEXAS


                     APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF SAID COURT:

      COMES NOW APPELLANT, CHARLES DANE HILL, through

counsel, W. A. (BILL) WHITE, Attorney at Law, showing:



       STATEMENT OF THE CASE AND STATEMENT OF FACTS

      Appellant was indicted in November 2013 for

aggravated assault on public servant (13-11-9140; three

counts), aggravated assault with a deadly weapon (13-

11-9158; one count with three paragraphs), and deadly

conduct (13-11-9159; one count with two paragraphs).

These crimes were alleged to have all occurred on or

about 10/05/13 in Jackson County, Texas.

      Under the State’s theory, the offenses all occurred

during a course of events lasting from morning into

                             5
late night of 10/05/13, ending with appellant’s

transportation by EMS for medical care, and subsequent

arrest by law enforcement.

    On 10/05/13, appellant was scheduled to participate

in a local fishing tournament. (RR Vol. 5, p. 124).        He

drank beer all day in large volume and ate Vodka-soaked

gummy bears. (RR Vol. 5, p. 74; p. 127).   In the

afternoon, appellant visited an outdoor festival with

friends in nearby Victoria (25 miles away) named

“Bootfest”.

    At Bootfest, which was crowded, appellant became

separated from his friends for about two hours.     When

reuniting with appellant, friends noticed that he was

unusual in his behavior, and not himself. (RR Vol. 5,

pp. 132-134).   According to trial testimony, appellant

later admitted to a witness that he ingested LSD during

his solitary wanderings at Bootfest. (RR Vol. 5, pp.

208-210)

    Upon returning to rural Jackson County after

Bootfest, appellant began behaving aggressively toward


                             6
his friends at 694 County Road 313 East near

Vanderbilt. (RR Vol. 5, pp. 136-141).   An argument

ensued between appellant and Adam Twardowski, and Adam

told appellant to leave his home.   Not long afterward,

a physical struggle occurred on the premises inside a

pickup truck between Michael Cornwell and appellant, in

which appellant held a loaded pistol.   During this

struggle, the pistol discharged, shooting a hole in the

truck’s roof and firing another projectile toward the

Twardowski house nearby. (RR Vol. 5, pp. 51-53).      At

some point, Cornwell actually managed to stick one of

his fingers between the pistol’s hammer and firing

plate at the instant appellant pulled the trigger,

preventing the gun from firing another time. (RR Vol.

5, pp. 53-59).   Appellant also bit Cornwell during this

scuffle.

    Appellant then left the scene and returned to his

own residence nearby, while friends called 911 and

alerted law enforcement.   As the darkness of night

fell, law enforcement officers from various local and


                            7
state agencies made their way to the residence of

appellant, who was now armed with a rifle. (RR Vol. 4,

p. 42)

    Law enforcement kept their vehicle lights off to

avoid pinpointing their positions, hoping that

appellant would not see or fire at them. (RR Vol. 4,

pp. 43-46; 52).   According to testimony, appellant

eventually fired at one officer, Deputy Jason

McCarrell. (RR Vol. 4, pp. 54-55)

    It is important to note that peace officers on the

scene during this dark, country night intentionally

used neither their blue and red, overhead lights, nor

any other vehicle lights, including interior dome

lights. (RR Vol. 4, p. 52).       Out in the country, after

sundown, it was very dark.    Law enforcement relied on

thermal body sensor equipment (night vision) to

discover appellant holding his rifle, rather than using

flashlights. (RR Vol. 4, pp. 37-39).      Also, the peace

officers did not verbally identify themselves as being




                              8
present, or that they were even peace officers, for the

same tactical reason. (RR Vol. 4, 46-47)

    Appellant was ultimately subdued and taken into

custody after being shot in the arm by law enforcement.

He was medically stabilized and later jailed.

    Appellant’s trial began on 11/17/14, with jury

selection starting the same day.   The State’s case-in-

chief began on 11/18/14, and the State later rested its

case on guilt/innocence on 11/24/14.   The defense

presented no witnesses at guilt/innocence.    The jury

returned verdicts of guilty on all counts of the three

indictments, except count I of cause 13-11-9140

(attempted capital murder), which was not read to the

jury at the start of the State’s case-in-chief and was

presumably abandoned before trial began. (RR Vol. 3,

pp. 20-25; RR Vol. 7, pp. 105-106)

    The punishment phase began on 11/25/14.     Appellant

elected jury punishment.   The jury assessed punishment

that same day at 20 years prison in cause 13-11-9140,

10 years in prison in cause 13-11-9158, and 5 years in


                            9
prison in cause 13-11-9159.        The sentences were ordered

to run concurrently with no fines in any cause. (RR

Vol. 8, pp. 185-188).    The causes were tried together

in a single trial.    Appellant filed notice of appeal.



                      ISSUES PRESENTED

  I.     THE TRIAL COURT ERRED BY DENYING APPELLANT’S
         REQUEST FOR JURY INSTRUCTION ON SELF-DEFENSE
         BECAUSE APPELLANT PLED “NOT GUILTY” WHEN TRIAL
         BEGAN

  II. THE EVIDENCE IS INSUFFICIENT TO SHOW THAT
      APPELLANT KNEW JASON MCCARELL WAS A PUBLIC
      SERVANT WHEN SHOOTING AT HIM


                     SUMMARY OF ARGUMENT

       It is error for a trial court to deny jury

instruction on the issue of self-defense because a

defendant enters a “not guilty” plea at the outset of

his jury trial.    While self-defense is an affirmative

defense, and while elements of the charged crime must

be factually admitted by the defense throughout trial

to argue self-defense, merely entering a plea of “not

guilty” after the prosecutor reads the indictment at


                              10
the start of its case-in-chief does not preclude a

self-defense claim, nor its inclusion as an instruction

in the jury charge if the evidence supports.

    There is insufficient evidence to support the

element in cause 13-11-9140 (second count) that

appellant “knew that Jason McCarrell was a public

servant”.   Trial testimony established that, for

tactical reasons and reasons relating to officer

safety, McCarrell did not announce himself to appellant

as a peace officer on 10/05/13, nor did he allow any

lights on his police unit to illuminate, to avoid

alerting appellant to his position or highlighting

himself as a target.   While this is a safety and

tactical measure, it also precluded any knowledge in

appellant that the person at whom he fired his rifle on

10/05/13 was a peace officer or public servant.




                            11
                       ARGUMENT

                        ISSUE I

    When the defense requested a jury instruction on

self-defense in these causes at trial, it was denied by

the trial court. (RR Vol. 7, pp. 5-9).    The trial judge

gave more than one reason for denial.    One reason was,

“The law is also clear that if you want to assert your

right to self-defense you must first admit the elements

of the offense that has been charged.    The defendant

has pled not guilty to all of the elements of the

offense as charged and therefore has not qualified

himself to claim the right to self-defense.” (RR Vol.

7, p. 9, lines 8-13)(italics added)

    Appellant’s trial counsel filed in the clerk’s

record of each cause his proposed, but denied, jury

charge on self-defense. (CR 13-11-9140, pp. 43-49; CR

13-11-9158, pp. 24-30; CR 13-11-9159, pp. 24-30)

    There can be a difference between denying the

elements of the offense and merely pleading “not

guilty” at the outset of a criminal trial.   By pleading


                           12
“not guilty”, an accused activates his presumption of

innocence and puts the State to its proof beyond a

reasonable doubt.   It requires the government to

produce evidence in open court and meet its burden of

proof.   A defendant can then, as the trial progresses,

admit the elements of the offense, through its own or

even State’s witnesses, and offer the justification of

self-defense.   By making these remarks, the trial judge

conveyed his erroneous belief that, by merely lodging a

“not guilty” plea at the trial’s outset, an accused

procedurally bars himself from even presenting a self-

defense claim at trial.   This cannot be what the law

envisioned.

    A jury finding of guilty is an implicit finding

rejecting the defendant’s self-defense theory. Saxton

v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991).     If

this is true, then entering a “guilty” plea before

one’s jury immediately after the prosecutor reads aloud

the indictment is tantamount to asking that jury to

summarily reject one’s self-defense claim before any


                            13
evidence, from either side, has been presented.    This

cannot be correct.

    Self-defense is a justification for one’s actions,

which necessarily requires admission that the conduct

occurred. See Young v. State, 991 S.W.2d 835, 838

(Tex.Crim.App. 1999); MacDonald v. State, 761 S.W.2d

56, 60 (Tex.App.-Houston [14th Dist.] 1998, pet. ref’d).

To raise the issue of self-defense, appellant must

admit the committed offense and then offer self-defense

as justification. See Young at 839.    This is reiterated

in Anderson v. State, 11 S.W.3d 369 (Tex.App.-Houston

[1st Dist.] 2000, pet. ref’d).   Appellant finds no

language in Anderson which necessarily requires a

defendant to specifically plead “guilty” before his

jury at the trial’s outset to then be allowed to

gradually admit the elements of the offense during

trial and offer the legal justification of self-defense

through testimony or other evidence.    If evidence of

same is then admitted, the accused is entitled to a




                           14
jury charge on same and may argue this defense or

justification to his jury.

    A defendant is entitled to an instruction on any

defensive theory … if the issue is raised by the

evidence, whether that evidence is strong or weak,

unimpeached or contradicted, and regardless of what the

trial court may think about the credibility of the

evidence. Hamel v. State, 916 S.W.2d 491, 493

(Tex.Crim.App. 1996); Walker v. State, 994 S.W.2d 199,

201 (Tex.App.-Houston [1st Dist.] 1999, pet. ref’d).

    For this reason, the convictions in these causes

should be reversed.



                        ISSUE II

    In determining legal sufficiency of the evidence,

the reviewing court views all of the evidence in the

light most favorable to the verdict to determine

whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable

doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99


                             15
S.Ct. 2781, 61 L.Ed.2d 560 (1979); see Vodochodsky v.

State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005).    In

making this determination, the reviewing court

considers all the evidence admitted, including

improperly admitted evidence. Conner v. State, 67

S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State,

38 S.W.3d 137, 139 (Tex.Crim.App. 2000).

    Appellant’s trial counsel made a motion for

directed verdict, when the State rested at the

guilt/innocence phase, in regard to the State’s failure

to present sufficient evidence that appellant knew

Jason McCarrell was a public servant.   The trial court

denied this motion. (RR Vol. 7, p.11)

    Evidence showed at trial that McCarrell kept his

service vehicle completely dark when responding to this

call, using no lighting of any sort to prevent himself

from becoming a target to appellant, who was holding a

rifle in the dark, country night.   McCarrell was only

able to locate appellant by using thermal body sensor




                           16
equipment, which illuminated appellant to him through

appellant’s body heat.

    Although appellant eventually fired his rifle at

McCarrell, McCarrell admitted at trial that he never

announced himself as a peace officer or other public

servant, and that he did not in fact announce his

presence at all, to prevent appellant from targeting

him or even knowing he was present.    McCarrell did not

yell, “Stop, police!”, or otherwise give appellant any

knowledge that he was a law enforcement officer, peace

officer, or other public servant prior to appellant

firing his rifle at him.   In fact, McCarrell said

nothing at all to alert appellant that he was even

there before appellant fired at him.

    While appellant later hollered some anti-police

remarks and profanities as EMS personnel dressed his

wound, this was after appellant had been shot in his

arm and had realized that police officers were on the

scene. (RR Vol. 4, pp. 158-159).   Accordingly, these

remarks are not evidence that appellant knew McCarrell


                            17
to be a public servant or peace officer when he fired

his rifle at him minutes earlier.

    Amazingly, appellant made two 911 calls to law

enforcement of his own on the night in question after

being shot by law enforcement, asking for help because

“some motherfucker” had shot him in the arm. (RR SX-140

and SX-141).   Appellant’s speech sounds erratic,

slurred, and distressed, due in part to his ingestion

of copious amounts of alcohol and LSD.   It is clear in

SX-140 that appellant, at the time of making the call,

does not realize he had been shot by a law enforcement

officer.   Appellant identifies himself without

hesitation during the call as “Charles Hill” and gives

his address as “958 CR 313 East”. (RR SX-140)

    While voluntary intoxication is not a defense to

any crime in Texas, appellant’s ingestion of beer and

liquor all day, plus LSD (hallucinogen) that afternoon,

could not have helped his powers of perception and

observation by nightfall. See generally Tex.Pen.Code

Ann., sec. 8.04 (a)(Vernon 2013).   This mitigates


                            18
against him realizing that McCarrell was a policeman

when he fired at him.

    There is no evidence that appellant knew he was

shooting at a policeman, sheriff’s deputy, trooper, or

other law enforcement agent, or any kind of public

servant when he fired at Deputy McCarrell.

    For these reasons, the conviction for the second

count in cause 13-11-9140 should be reversed.



                        PRAYER

    Appellant prays that the convictions in these

causes be reversed.

                                Respectfully submitted,

                                /s/ W. A. White
                                W. A. (BILL) WHITE
                                ATTORNEY FOR APPELLANT
                                POB 7422, Vict., TX 77903
                                (361) 575-1774 voice/fax
                                TBN 00788659


                CERTIFICATE OF SERVICE

    I certify that a true and correct copy or duplicate

original of the foregoing has been provided to Robert


                           19
E. Bell, Jackson Co. District Attorney’s Office, 115 W.

Main Street, 2nd Flr, Edna, TX 77957 via U.S. mail, fax,

electronic delivery, or hand-delivery on this the 17th

day of June 2015.

                                /s/ W. A. White
                                W. A. White


               CERTIFICATE OF COMPLIANCE

    I certify that this brief contains 2,697 words.

                                /s/ W. A. White
                                W. A. White




                           20
