                                                                                        PD-1618-15
                            PD-1618-15                              COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                  Transmitted 12/11/2015 2:29:27 PM
                                                                    Accepted 12/15/2015 1:27:53 PM
                                                                                     ABEL ACOSTA
                             No. 07-13-00399-CR                                              CLERK

              _________________________________________

                             IN THE CRIMINAL

                        COURT OF APPEALS
          _______________________________________________

                  ANTHONY BERNARD WINGFIELD
                            PETITIONER,
                                VS.
                        THE STATE OF TEXAS
        ____________________________________________________

               PETITION FOR DISCRETIONARY REVIEW
         __________________________________________________

                     Appeal from the District Court
                       of Wilbarger County, Texas
                      46TH JUDICIAL DISTRICT
                HONORABLE DAN MIKE BIRD, JUDGE
                  DISTRICT COURT CASE NO. 11,825
      _______________________________________________________

                                             RESPECTFULLY SUBMITTED:

December 11, 2015                                   /s/ Earl Griffin Jr.
                                                    EARL GRIFFIN, JR.
                                                    SBOT# 08471000
                                                    Attorney for Appellant
                                                    P.O. Box 730
    December 15, 2015
                                                    Childress, Texas 79201
                                                    (940) 937-6474
                                                    (940) 937-6020 Fax.


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                        {Petition For Discretionary Review}
                            CERTIFICATE OF SERVICE

      I hereby certify that the following listed person(s) or entities have rights

which may be adversely affected by the outcome of these appeals in this Court so

that the Justice of this Court may review the same to determine the need for refusal

or disqualification, if necessary, herein:

      1.     The Appellant, ANTHONY BERNARD WINGFIELD, currently

resides at TDC# 01896078, Polunsky Unit, 3872 F.M. South, Livingston, Texas

77351, and may be served with process herein at the address of his Court

Appointed Attorneys and he is represented herein by the undersigned attorneys

whose addresses are shown on the front cover of this brief. The Appellant was

represented at trial herein by the same attorney;

      2.     The Appellee, The State of Texas, is represented herein by its Criminal

District Attorney for Wilbarger County, Texas, Mr. Staley Heatly, and his address is

1700 Wilbarger Street, Suite 32 Vernon, Texas 76384, and may be served with

process at his address.

      3.     The State Prosecuting Attorney is Ms. Lisa C. McMinn and her

address is P.O. Box 12405, Capital Station, Austin, Texas 78711-2405, and she

may be served with process at this address.


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                           {Petition For Discretionary Review}
                     Respectfully submitted by,


                     /s/ Earl Griffin, Jr.
                     EARL GRIFFIN, JR.
                     Attorney for Appellant




                                                  3
{Petition For Discretionary Review}
                                        TABLE OF CONTENTS
                                          SUBJECT INDEX

SUBJECT:                                                                                          PAGE:

Certificate of Interested Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . … . . . 2-3

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ….. . . .4-7

Subject Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . …... ..4-5

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……. . . . . . . .6-7

Statement of the Procedural History . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . 9

Grounds for Review . . . . . . . . . . . . . . . . . . . . . . . . . …... . . . . . . . . . . . . . . . . . .9

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ……. . . . . . . . . .10-13

Summary of the Arguments . . . . . . . . . . . . . . . . . . . . . .. . . . . …... . . . . . . .13-14

Reasons for Review . . . . . . . . . . . . . . . . . . . . . . . . . . …. .. . . . . . . . ……..14-18



        GROUND FOR REVIEW NUMBER ONE . .. . . . . . . . . …. . . . . . . . 14-16

     THERE IS INSUFFICIENT LEGAL EVIDENCE THAT PETITIONER
INTENTIONALLY OR KNOWINGLY OR RECKLESSLY CAUSED BODILY
INJURY TO A MEMBER OF PETITIONER’S FAMILY OR A PERSON
PETITIONER HAS HAD A DATING RELATIONSHIP BY STRIKING SUCH
PERSON WITH PETITIONER’S HAND (ENTIRE RECORD).




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                                    {Petition For Discretionary Review}
         GROUND FOR REVIEW NUMBER TWO . . . . . . …… . . . . . . . . . .16-18

     THE STATE VIOLATED PETITIONER’S RIGHT TO DUE PROCESS
UNDER THE 14TH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ENGAGED IN A VINDICTIVE PROSECUTION
WHEN IT REFUSED TO FOLLOW ITS PLEA BARGAIN AGREEMENT WITH
PETITIONER (R.R. VOL. 1; R.R. VOL. 3 & 4; CLERK’S RECORD; ENTIRE
RECORD).



Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ….... . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Service . . .. . . . . . . . . . . . . . . . . . . . . …... . . . . . . . . . . . . . . . . . . .19

Certificate of Compliance………………………………………………………....19

Appendix………………………………………………………………………..20




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                                      {Petition For Discretionary Review}
                          TABLE OF CONTENTS
                         INDEX OF AUTHORITIES



CASE:                                                               PAGES:

1. Edison v. State, 235 S.W. 3rd 303 (Tex. Civ. App. -2008, no pet.)……………15
2. Mitchell v. State, 102 S.W. 3rd 773 (Tex. Civ. App.-2003, pet. Ref’d)………15
3. Weaver v. State, 551 S.W. 2d 419 (Tex. Cr. App.-1977)……………………15
4. Franklin v. State, 659 S.W. 2d 831, 834 (Tex. Cr. App. -1983)………………15
5. Taylor v. State, 637 s.W. 2d 929 (Tex. Cr. App. -1982)………………………15
6. Sieffert v. State, 501 S.W. 2d 124 (Tex. Cr. App. -1973)……………………15
7. Givens v. State, 2008 WL 2104843
            (Tex. Civ. App. -2008: Discretionary Review Dismissed)……………..16
8. Jackson v. Virginia, 443 U. S. 307, 318-319 (U.S. -1979)……………………16
9. Mason v. State, 905 S.W. 2d 570, 574 (Tex. Cr. App. -1995)…………………16
10. Johnson v. State, 43 S.W. 3d 1, 10-1 (tex. Cr. App. -2001)…………………16
11. Dorsey v. State, 55 S.W. 3d 227 (Tex. Civ. App. -2001, no pet.)………….17
12.Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543 (1984)…………………18
13. Moore v. State, Id……………………………………………………..18
14. ExParte Williams, 637 S.W. 2d 943, 948 (Tex. Crim. App. -1982)………18
15. State vs. Moore, 240 S.W. 3d 248,251 (Tex. Crim. App.-2007)……………17




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                        {Petition For Discretionary Review}
                     CODES AND STATUTES


Texas Penal Code

     §22.01 (b) (2) (A) ……………………………………………………. 15




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                   {Petition For Discretionary Review}
                                No. 07-13-00399-CR

ANTHONY B. WINGFIELD                    }{      IN THE COURT OF
PETITIONER,                             }{
                                        }{
VS.                                     }{      CRIMINAL APPEALS
                                        }{
THE STATE OF TEXAS                      }{
APPELLEE                                }{      OF TEXAS

                    PETITION FOR DISCRETIONARY REVIEW

TO THE COURT OF CRIMINAL APPEALS:

      COMES NOW, ANTHONY BERNARD WINGFIELD, the Petitioner in

the above-styled and numbered cause, by and through his counsel of record on

appeal herein, and submits in and to this Court his Petition For Discretionary

Review on appeal herein complaining of errors of fact and law in the trial court

below as follows:

      For convenience, the Petitioner, ANTHONY BERNARD WINGFIELD,

and THE STATE OF TEXAS will hereinafter be referred to as the “Petitioner” and

the “State” respectively throughout this petition hereinafter:




                                                                                   8
                           {Petition For Discretionary Review}
                  STATEMENT OF PROCEDURAL HISTORY

      In Cause No. 11,825, Wilbarger County, Texas, Appellant pled Not Guilty to

the charge of Assault Against A Family Member With Prior Conviction (R.R. Vol.

4: P. 17, L. 8- P. 18, L. 12) and submitted his case to the jury. Appellant was found

guilty and sentenced to 45 years in the Texas Department of Criminal Justice,

Institutional Division (C. R.88 -89). Appellant timely filed a Motion for New Trial

and Notice of Appeal (C.R. 90-91; 100). On November 24, 2015, the Seventh

Court of Appeals affirmed the Trial Court’s Judgment, Appendix 1 hereto.


                            GROUNDS FOR REVIEW

                    GROUND FOR REVIEW NUMBER ONE

     THERE IS INSUFFIECIENT LEGAL EVIDENCE THAT PETITIONER
INTENTIONALLY OR KNOWINGLY OR RECKLESSLY CAUSED BODILY
INJURY TO A MEMBER OF PETITIONER’S FAMILY OR A PERSON
PETITIONER HAS HAD A DATING RELATIONSHIP BY STRIKING SUCH
PERSON WITH APPELLANT’S HAND (ENTIRE RECORD).

                    GROUND FOR REVIEW NUMBER TWO

     THE STATE VIOLATED PETITIONER’S RIGHT TO DUE PROCESS
UNDER THE 14TH AMENDMENT TO THE UNITED STATES
CONSTITUTUION AND ENGAGED IN A VINDICTIVE PROSECUTION
WHEN IT REFUSED TO FOLLOW ITS PLEA BARGAIN AGREEMENT WITH
PETITIONER (R.R. VOL. 1, R.R. VOL. 3 & 4; CLERK’S RECORD; ENTIRE
RECORD)


                                                                                   9
                          {Petition For Discretionary Review}
                           STATEMENT OF THE CASE

      At a pre-trial hearing the State, on the record, informed Petitioner that the

State’s “plea offer” of two years in the TDCJ-ID would remain “open” until

October 10, 2013 (R.R. Vol. 1: P. 8, L. 4-10: “Mr. Heatly: Judge, we have made a

plea bargain offer of two years RDCJ and we’ll make that offer available until

October the 10th.) (emphasis added)

      On October 1, 2013 Petitioner sent a letter to his Court Appointed Counsel,

Earl Griffin, Jr., that he was accepting the two years TDCJ-ID plea offer (R.R. Vol

3: P. 20, L. 1-8; CR. 41.) and the District Attorney sent a letter to the same defense

counsel that it was withdrawing its “plea offer” (R.R. Vol. 3: P. 20, L. 5-8; CR.

48). On March 7, 2013 defense counsel sent a letter to the District Attorney that

Appellant was accepting the two years TDCJ-ID plea deal (R.R. Vol. 3: P. 30, L. 9-

11; CR. 41, 46.) The State refused to honor its promise to allow Petitioner until

October 10, 2013 to enter his plea to the two year deal (R.R. Vol. 3: P. 22, L. 14-P.

23, L. 8; P. 24,L. 25-P. 25, L. 13; CR. 48). Petitioner filed a Motion To Quash

Indictment For Vindictive Prosecution (C.R. 49-66) and the Trial Court heard this

motion pre-trial (R.R. Vol. 3: P. 19, L. 21-P. 28, L. 13). The Trial Court denied

Appellant’s Motion To Quash Indictment (R.R. Vol. 3: P. 28, L. 8-L. 21).

      The indictment in No. 11,825 provides in relevant part: “… that (Petitioner)
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                           {Petition For Discretionary Review}
… did … intentionally, knowingly or recklessly cause bodily injury to Angela

Dickerson,…person with whom the (Petitioner) has or has had a dating

relationship,…and…the (Petitioner) had previously been convicted of an offense

under Chapter 19 or Chapter 22 or Section 20.03 or Section 20.04 or Section 21.11

or Section 25.11, Penal Code,…to wit: on the 20th day of March 2012, in the

County Criminal Court No. 11 of Dallas County, Texas, in cause number

MA1233579N,” to which the Petitioner pled “Not Guilty” (R. R. Vol. 4: P.17, L.

8-P. 18, L. 14).

      The State called Angela Dickerson, the alleged victim, who testified that she

“knew” Petitioner from “June of 2011” (R.R. Vol. 4: P. 24, L. 2-6) off and on until

“October 12, 2012 (R.R. Vol. 4; P. 26, L. 2-L.19) when Petitioner moved in

“permanently”. She characterized their activity as a “dating” relationship (R.R. Vol.

4: P. 26, L. 19-23) until “December 11, 2011” when she moved in with her mother

(R.R.-Vol. 4: P. 25, L. 22-P. 26, L. 11). She further testified that on June 12, 2013

that Petitioner punched her (R.R. Vol. 4: P. 27, L. 10-12; P. 28, L. 3-11).

      On cross-examination Angela Dickerson, after having denied that she

slapped Petitioner before he “touched her”(R.R. Vol. 4: P. 37, L. 16-22), admitted

that on August 12, 2013 she made a statement to law enforcement that she “struck

Anthony first” (R.R. Vol. 4: P. 39, L. 1-9), that she did not recall making a
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                          {Petition For Discretionary Review}
statement that he grabbed her by the shirt (R.R. Vol. 4: P. 39, L. 10-13) then

admitted that she had made that statement and that Petitioner fell on her on the

couch, that she bumped her eye on his head (R.R. Vol. 4: P. 39, L. 16-P. 40, L. 3).

She testified that Petitioner has an amputated leg (R.R. Vol. 4: P. 40, L. 4-9); that

she gave another written statement that she had given yet “a different version” of

what had happened (R.R. Vol. 4: P. 40, L. 10-18). Angela Dickerson executed an

Affidavit of Non-Prosecution seeking to have all charges against Petitioner

dismissed (R.R. Vol. 4: Defendant’s Exhibit1).

      Further, while being cross-examined, Angela Dickerson denied giving a

statement that a conversation about another woman and text messages had occurred

of the incident in question (R.R. Vol. 4: P. 45, L. 5-12) and, again, then admitted

on further cross-examination that such a conversation had occurred (Vol. 4: P. 45,

L. 15-19).

      Ronnie Dickerson testified that on June 12, 2013 he heard a “slap” but did

see Petitioner strike Angela Dickerson (R.R. Vol. 4: P. 53, L. 10-12; L. 25-P. 54, L.

5).

      On cross-examination Ronnie Dickerson admitted that he did not see a blow

struck on that occasion (R.R. Vol. 4: P. 55, L. 23-P. 56, L. 10).


                                                                                        12
                           {Petition For Discretionary Review}
      Petitioner moved for directed verdict that there was no evidence offered as to

the prior conviction for family violence which would support a felony conviction

under the present indictment because State’s 11 (The per packet offered by the State

to prove the prior conviction.) read on its face “no finding of family violence” (R.R.

Vol. 4: P. 151, L. 1-15; State’s Exhibit 11).

      By bill of exception Petitioner offered and proffered Angela Dickerson’s

testimony that she had made other complaints of family violence against other men

(R.R. Vol. 5: P. 28, L. 14-P. 29, L. 25). The Trial Court refused to allow this

testimony before the jury (R.R. Vol. 5: P. 30, L. 20-22)

                           SUMMARY OF ARGUMENT

      There was no evidence, or at best insufficient evidence, to establish beyond a

reasonable doubt that Petitioner intentionally or knowingly or recklessly caused

bodily injury to Angela Dickerson, who was a member of Petitioner’s family or a

person Petitioner had had a dating relationship by striking her with Petitioner’s

hand, after Petitioner had finally been convicted under Chapter 19 or 22 or Section

20.03 or Section 20.04, or Section 22.11 or Section 25.11, Texas Penal Code.

      The Trial Court abused its discretion when it denied Petitioner’s Motion For

Directed Verdict because there was no evidence that the underlying Dallas

conviction involved a family violence offense under Chapter 19, Chapter 22,
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                           {Petition For Discretionary Review}
Section 20.03, Section 20.04 or Section 21.11 or Section 25.11 of the Penal Code

of Texas.

      The State violated Petitioner’s right to due process when it engaged in

vindictive prosecution by refusing to follow its plea bargain agreement.

                    GROUND FOR REVIEW NUMBER ONE

     THERE IS INSUFFICIENT LEGAL EVIDENCE THAT PETITIONER
INTENTIONALLY OR KNOWINGLY OR RECKLESSLY CAUSED BODILY
INJURY TO A MEMBER OF PETITIONER’S FAMILY OR A PERSON
PETITIONER HAS HAD A DATING RELATIONSHIP BY STRIKING SUCH
PERSON WITH PETITIONER’S HAND (ENTIRE RECORD).

                              REASON FOR REVIEW

      For purposes of brevity and convenience that portion of this Brief entitled

“Statement of the Case” is resubmitted hereunder in its entirety in support of these

claims of error.

      The State, in its indictment of Petitioner, asserted, in part, that Petitioner did :

“… that (Petitioner) … did … intentionally, knowingly or recklessly cause bodily

injury to Angela Dickerson (by striking her with his hand), Angela Dickerson being

a person with whom the (Petitioner) has or has had a dating

relationship,…and…the (Petitioner) had previously been convicted of an offense

under Chapter 19 or Chapter 22 or Section 20.03 or Section 20.04 or Section 21.11

or Section 25.11, Penal Code,…” (C.R. 4-9). The Petitioner pled “Not Guilty” (R.
                                                                                       14
                           {Petition For Discretionary Review}
R. Vol. 4: P.18, L. 12).

      By thus averring the State assumed, accepted and is charged with the burden

of proving this – that Petitioner struck Angela Dickerson with Petitioner’s hand

after Petitioner had been convicted of one of the enumerated offenses TEXAS

PENAL CODE §22.01 (b) (2) (A); SEE Edison v. State, 235 S.W.3rd 303

(Tex.Civ.App.-2008, no pet.); Mitchell v. State, 102 S.W.3rd 772 (Tex.Civ.App.-

2003, pet. ref’d); Weaver v. State, 551 S.W. 2d 419 (Tex. Cr. App. – 1977);

Franklin v. State, 659 S.W. 2d 831, 834 (Tex. Cr. App. – 1983); “The allegation in

the indictment is descriptive of that which is legally essential to charge a crime

because it elaborates on and describes essential elements of the offense that must be

plead. The State was bound to prove the allegations in the indictment,” Taylor v.

State, 637 S.W. 2d 929 (Tx. Cr. App. – 1982); Sieffert v. State, 501 S.W. 2d 124

(Tx. Cr. App. – 1973).

      The State had to prove beyond a reasonable doubt that Petitioner struck

Angela Dickerson with Petitioner’s hand and (emphasis added) that prior to this

that Petitioner had been convicted of an offense under Chapter 19 or Chapter 22 or

Section 20.03 or Section 20.04 or Section 21.11 or Section 25.11, Penal Code .

There is no legally sufficient evidence that the prior conviction involved family

violence, Givens v. State, 2008 WL 2104843 (Tex.Civ.App.-2008; Discretionary
                                                                                     15
                           {Petition For Discretionary Review}
Review Dismissed).

      Further, because the alleged victim gave testimony to at least three different

versions of the events of the date in question (SEE Statement of Facts herein), even

considering the evidence in the light most favorable to the verdict, a rational trier of

fact could NOT have found that the Petitioner intentionally or knowingly or

recklessly struck Angela Dickerson with Petitioner’s hand; Jackson v. Virginia, 443

U.S. 307, 318-319 (U.S. – 1979); Mason v. State, 905 S.W. 2d 570, 574 (Tx. Cr.

App. – 1995). Further, viewing all the evidence in a neutral light, the evidence that

Petitioner’s intentionally or knowingly or recklessly struck Angela Dickerson with

Petitioner’s hand is so obviously weak as to undermine confidence in the fact

finder’s determination, Johnson v. State, 43 S.W. 3d 1, 10-1 (Tx. Cr. App. – 2001).

      Therefore, judgment in this cause should be either reversed or rendered in

favor of Petitioner or reversed and Petitioner granted a new trial herein and this

Court should grant review therefore.

                     REASON FOR REVIEW NUMBER TWO

     THE STATE VIOLATED PETITIONER’S RIGHT TO DUE PROCESS
UNDER THE 14TH AMENDMENT TO THE UNITED STATES
CONSTITUTUION AND ENGAGED IN A VINDICTIVE PROSECUTION
WHEN IT REFUSED TO FOLLOW ITS PLEA BARGAIN AGREEMENT WITH
PETITIONER (R.R. VOL. 1: R.R. VOL 4; CLERK’S RECORD; ENTIRE
RECORD)

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                           {Petition For Discretionary Review}
                              REASON FOR REVIEW

      For purposes of brevity and convenience that portion of this Brief entitle

“Statement of the Case” is resubmitted hereunder in its entirety in support of this

claim of error.

      The issue involved in one of fundamental fairness in plea negotiation and

proceedings thereon. Here, the State made the unsolicited “offer” that the “plea

offer” would remain available to Petitioner until October 10th. Prior to October 10th

Petitioner, through counsel, informed the State that he accepted the offer. Can the

State at that point in good faith, back out on its offer? Fundamental fairness says

no.

      It is stated in several cases that a “plea offer” is not binding until it is

approved by the Trial Court, State vs. Moore, 240 S.W. 3d 248,251 (Tex. Crim.

App.-2007); Dorsey v. State, 55 S.W. 3d 227 (Tex. Civ. App. -2001, no pet.); SEE

ExParte Williams, 637 S.W. 2d 943,948 (Tex. Crim. App. -1982).

      In this case the unanswered question is should the State be allowed to

anticipatorily breach its agreement with the Petitioner? The cases which discuss the

breach of a plea agreement as being “vindictive prosecution” violative of due

process as required by the 14th Amendment to the United States Constitution focus

on the fundamental unfairness of allowing the State to repudiate its agreement,
                                                                                      17
                           {Petition For Discretionary Review}
Mabry v. Johnson, 467 US 504,104 S. Ct. 2543 (1984); Moore v. State, ID..

      Clearly here the State led to Petitioner to believe that the “plea bargain” was

that until October 10th he would receive the benefit of the two year plea

recommendation. The State did not honor this plea bargain.

      Therefore, this case should be reversed and remanded to the Trial Court for

the State to make its recommendation of two years, or reversed and remanded for

new trial and this Court should grant review therefore.

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, this Court should grant

Petitioner’s Petition For Discretionary Review, and upon such review, this case

should be reversed and remanded to the Trial Court for the State to make its

recommendation of two years, or reversed and remanded for new trial.

                                               Respectfully submitted by,

                                               /s/ Earl Griffin, Jr.
                                               EARL GRIFFIN, JR.
                                               ATTORNEY FOR PETITIONER
                                               P.O. Box 730
                                               Childress, Texas 79201
                                               (940) 937-6474
                                               (940) 937-6020 Fax
                                               State Bar No. 08471000



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                          {Petition For Discretionary Review}
                          CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the above and foregoing
Petition For Discretionary Review has been mailed CMRRR# 7011 3500 0002
4075 2272 to the counsel for the state herein, Mr. Staley Heatly, 46th District
Attorney, 1700 Wilbarger Street, Suite 32, Vernon, Texas 76384, and CMRRR#
7011 3500 0002 4075 2289 to Ms. Lisa C. McMinn, State Prosecuting Attorney at
P.O. Box 12405, Capital Station, Austin, Texas 78711-2405 on this the 11th day of
December, 2015, in accordance with the rules governing same.

                                       /s/ Earl Griffin, Jr.
                                       ATTORNEY FOR PETITIONER




                       CERTIFICATE OF COMPLIANCE

 I hereby certify that the above and foregoing Petition For Discretionary Review is
3,550 words in its completion, signed on this 11th day of December, 2015, in
accordance with the rules governing same.


                                                      /s/ Earl Griffin, Jr.
                                                      Attorney for Appellant
                                                      egriffinattorney@yahoo.com




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                          {Petition For Discretionary Review}
                                  APPENDIX

1. Opinion and Judgment, Seventh Court of Appeals of Texas




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                        {Petition For Discretionary Review}
