                                                                             ACCEPTED
                                                                         01-15-00095-CR
                                                              FIRST COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                   10/23/2015 1:17:41 PM
                                                                   CHRISTOPHER PRINE
                                                                                  CLERK

                NO. 01-15-00095-CR
                    01-15-00094-CR
                                                        FILED IN
           IN THE COURT OF APPEALS               1st COURT OF APPEALS
                                                     HOUSTON, TEXAS
        FOR THE FIRST DISTRICT OF TEXAS          10/23/2015 1:17:41 PM
                                                 CHRISTOPHER A. PRINE
                                                          Clerk
           DIONYSIOS SPIRO KOSMETATOS
                     Appellant

                          v.

                THE STATE OF TEXAS
                       Appellee


 On Appeal from Cause Number 1449194 & 1414418
 From the 338th District Court of Harris County, Texas



             BRIEF FOR THE APPELLANT




                               TONYA ROLLAND MCLAUGHLIN
                               TBN 24054176
                               4301 Yoakum Boulevard
                               Houston, Texas 77006
                               Phone: (713) 529-8500
                               Fax: (713) 456-2203

                               Counsel for Appellant




ORAL ARGUMENT RESPECTFULLY REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                                Dionysios Spiro Kosmetatos
                                          TDC# 1976828
                                          French M. Robertson Unit
                                          12071 FM 3522
                                          Abilene, Texas 79601

TRIAL PROSECUTORS:                        David Bernard
                                          Beth Exley
                                          Assistant District Attorneys
                                          Harris County, Texas
                                          1201 Franklin Avenue
                                          Houston, Texas 77002

DEFENSE COUNSEL AT HEARING:               Randall Ayers
                                          P.O. Box 1569
                                          Houston, Texas 77251


COUNSEL ON APPEAL FOR APPELLANT:          Tonya Rolland McLaughlin
                                          4301 Yoakum Boulevard
                                          Houston, Texas 77006


PRESIDING JUDGE:                          Hon. Brock Thomas
                                          338th District Court
                                          Harris County, Texas
                                          1201 Franklin Avenue
                                          Houston, Texas 77002




                                  2
                                                   TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL .................................................................... 2

TABLE OF CONTENTS ....................................................................................................... 3

INDEX OF AUTHORITIES ................................................................................................ 4

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

STATEMENT REGARDING ORAL ARGUMENT ...................................................... 6

ISSUE PRESENTED .............................................................................................................. 7

STATEMENT OF FACTS ..................................................................................................... 7

SUMMARY OF THE ARGUMENT ................................................................................... 9

ARGUMENT ..........................................................................................................................10
          ISSUE ONE: THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR
          INSTRUCTED VERDICT BECAUSE THE EVIDENCE IS INSUFFICIENT TO ESTABLISH
          APPELLANT KNEW THE OFFICERS WERE PUBLIC SERVANTS.

          ISSUE TWO: THE EVIDENCE IS INSUFFICIENT FOR A RATIONAL JURY TO FIND
          BEYOND A REASONABLE DOUBT APPELLANT KNEW THE OFFICERS WERE PUBLIC
          SERVANTS.

          STANDARD OF REVIEW. ........................................................................................... 10

          ANALYSIS: SUFFICIENCY OF THE EVIDENCE. ...................................................... 11

PRAYER...................................................................................................................................14

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

CERTIFICATE OF COMPLIANCE .................................................................................14




                                                                    3
                                                INDEX OF AUTHORITIES
Cases

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).. ............................................... 10

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). .......................................... 10, 11

Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).. .................................................. 10

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979);.. ........... 10, 11

McDaniel v. State, No. 01-11-00107-CR, 2012 Tex. App. LEXIS 406, 2012 WL 151465 (Tex.
 App. – Houston [1st Dist.] January 19, 2012, pet. ref’d) (mem. Op. not designated for
 publication). ... ..................................................................................................................... 12

Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). .............................................. 11




Constitutional Provisions, Statutes and Rules	  

Tex. Penal Code Ann. § 22.01(a)(2). ........................................................................................ 11

Tex. Penal Code Ann. § 22.02(a)(2) and 22.02(b)(2)(B). ....................................................... 11

Tex. Penal Code Ann. § 22.02(b)(2)(B). ................................................................................. 11

Tex. Penal Code Ann. § 22.02(c).............................................................................................. 11

Tex. R. App. Proc. § 38.1(e) ........................................................................................................6




                                                                    4
                              STATEMENT OF THE CASE

      Appellant was charged in cause numbers 1414418, 1449194, and 1414419 with

two counts of Aggravated Assault - Public Servant and one count of Aggravated

Assault - Family Member, each alleged to have occurred on or about January 13, 2014.

(1 CR at 7; 2 CR at 5).1 The State filed a motion to consolidate the three cases into

one trial on November 24, 2014, which was granted. (2 CR at 6).


      On January 14, 2015, a jury found Appellant guilty in cause numbers 1414418

and 1449194 of both counts of Aggravated Assault – Public Servant. The jury found

Appellant not guilty in cause number 1414419 of Aggravated Assault – Family

Member. On January 14, 2015, the jury sentenced the Appellant to forty (40) years in

the Institutional Division of the Texas Department of Corrections. Appellant filed a

timely notice of appeal. (1 CR at 96; 2 CR at 38).


      The two convictions are combined in a single brief for purposes of appeal.




                                           5
                    STATEMENT REGARDING ORAL ARGUMENT

      Oral argument should be permitted because this appeal is not frivolous and the

facts and legal arguments are adequately presented. TEX. R. APP. PROC. 38.1(e).

Appellant requests oral argument because the Court of Appeal’s decision, whether the

evidence is sufficient to support the convictions, would be significantly aided by oral

argument.




                                          6
                                 ISSUES PRESENTED

      ISSUE ONE: THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
      FOR INSTRUCTED VERDICT BECAUSE THE EVIDENCE IS INSUFFICIENT TO
      ESTABLISH APPELLANT KNEW THE OFFICERS WERE PUBLIC SERVANTS.

      ISSUE TWO: THE EVIDENCE IS INSUFFICIENT FOR A RATIONAL JURY TO
      FIND BEYOND A REASONABLE DOUBT APPELLANT KNEW THE OFFICERS
      WERE PUBLIC SERVANTS.

                                STATEMENT OF FACTS

      On January 13, 2014, Appellant, Dionysios Kosmetatos, was at his mother in

law’s apartment with his children and wife. (3 RR at 25). Appellant and his wife,

Rebecca Kosmetatos, began arguing inside of the apartment. (3 RR at 26). Rebecca

and her mother, Patricia Dow, left the Appellant and children inside of the apartment

and went to the apartment of downstairs neighbor, Urica Blackwell. Urica called 911.

(4 RR at 74).

      Officer Patrick Woods and Officer Serguei Gromyko responded to the

disturbance call a little after midnight. (4 RR at 161). They did not use their sirens or

their lights. (4 RR at 118). Officer Woods testified at this point they only knew that

the Appellant was alleged to have locked his wife out of the apartment and Officer

Gromyko was behind him. (4 RR at 125). Officer Gromyko testified he thinks he saw

Appellant on the balcony looking at them when they first arrived; however, defense

counsel pointed out this was nowhere in the offense report supplements or their

sworn statements. (4 RR at 190, 192; 5 RR at 24). Officer Woods stated there had



                                           7
been no report of weapons and he did not feel threatened walking up the stairs. (4 RR

at 154).

       CSU Officer Arthur Lyons wrote in his report the stairwell was dark with very

limited illumination and on the landing in front of Patricia’s apartment the light

fixture was out. (4 RR at 46-50). The available light was coming from the balcony

below. (4 RR at 51). Officer Woods testified they did not knock or announce police.

(4 RR at 128, 147). He said they were talking to Patricia when Appellant flung the

door open. (4 RR at 128). Urica’s testimony conflicts with the Officer’s because she

allegedly saw the Officers arrive and knock on the door. (4 RR at 79). Officer Woods

said Appellant screamed and rushed him. (4 RR at 130).

       Patricia Dow first testified on direct for the State that she saw Appellant come

out of her apartment with a knife in his hand and heard him threaten the Officers. (3

RR at 45-46). But on cross testified she did not see any altercation between Appellant

and the Officers and never saw Appellant with the knife. (4 RR at 26, 29). Urica said

she saw him come out screaming with a knife above his head and tried to stab the

Officers. Her testimony again conflicts with the Officers because she allegedly saw

them telling Appellant to put the knife down and then she heard gunshots. (4 RR at

81-83). Officer Woods testified he did not tell Appellant to drop the knife. (4 RR at

132). Urica also claims to have called 911 a second time because the Officers needed

help, but there is no recording or proof of the second call. (4 RR at 108-109).



                                           8
       Officer Woods and Officer Gromyko concur it was mere seconds from the

time the door flung open to the firing of his gun. (4 RR at 149, 154, 183). Officer

Gromyko testified there was no time to reflect. (4 RR at 184). Officer Woods fired his

gun shooting Appellant twice. (4 RR at 135, 174). He had never shot anyone before.

Appellant fell down the stairs. (4 RR at 138, 174). Neither Officer sustained any

injuries. (4 RR at 158, 187).

       At trial, defense counsel moved for an instructed verdict once the State rested

arguing there was insufficient evidence to prove the assault on Appellant’s wife or to

support Appellant’s knowledge that Officer Woods and Officer Gromyko were peace

officers at the time of the offense. (5 RR at 31). In the States rebuttal, they misstate

the testimony of the Officers and incorrectly argue to the trial court “with respect to

the aggravated assault on the peace officer cases, both police officers and the scene

investigator, Officer Lyons, and Sergeant Holbrook testified that the lighting was

adequate on the top floor to see a police uniform.” (5 RR at 34). The trial court

denied the defense’s motion. (5 RR at 34).



                            SUMMARY OF THE ARGUMENT

       Appellant complains there is insufficient evidence to support his convictions

for Aggravated Assault on a Public Servant. He did not know the Officers were Public

Servants at the time of the offense.



                                             9
                                      ARGUMENT

      ISSUE ONE: THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION
      FOR INSTRUCTED VERDICT BECAUSE THE EVIDENCE IS INSUFFICIENT TO
      ESTABLISH APPELLANT KNEW THE OFFICERS WERE PUBLIC SERVANTS.

      ISSUE TWO: THE EVIDENCE IS INSUFFICENT FOR A RATIONAL JURY TO FIND
      BEYOND A REASONABLE DOUBT APPELLANT KNEW THE OFFICERS WERE
      PUBLIC SERVANTS.

      S TAN DARD    OF   R EV IEW

      Challenging the trial court’s ruling on directed verdict is a challenge to the legal

sufficiency of the evidence to support the conviction. Williams v. State, 937 S.W.2d

479, 482 (Tex. Crim. App. 1996). Appellate courts review both legal and factual

sufficiency challenges using the same standard of review. Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010). When reviewing sufficiency of the evidence,

appellate courts examine all the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and any reasonable inferences from it, any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d

560 (1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The factfinder

is the exclusive judge of the credibility of witnesses and the weight of the evidence.

Isassi, 330 S.W.3d at 638; Brooks v. State, 323 S.W. 3d 893, 899 (Tex. Crim. App. 2010).

      It is the factfinder's duty to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson,

443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When
                                           10
the record supports conflicting inferences, the reviewing court presumes that the

factfinder resolved the conflicts in favor of the prosecution and defer to that

determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.



      A NALYSIS : S UFFICIEN CY      OF THE     E V IDEN CE

      Due process requires the State to prove beyond a reasonable doubt every

element of the crime charged. Jackson, 443 U.S. at 313. A person commits an assault if

he intentionally or knowingly threatens another with imminent bodily injury. Tex.

Penal Code Ann. § 22.01(a)(2). The offense is elevated to an aggravated assault if the

person uses or exhibits a deadly weapon during the commission of the assault and is

punishable as a first-degree felony if the offense is committed against a person the

actor knows is a public servant while the public servant is lawfully discharging an

official duty. Tex. Penal Code Ann. § 22.02(a)(2) and 22.02(b)(2)(B). The State in this

case was required to prove beyond a reasonable doubt Appellant knew Officer

Gromyko and Officer Woods were public servants at the time of the offense. The

statute creates a presumption that an accused knew that the person assaulted was a

public servant if the person was wearing a distinctive uniform or badge indicating the

person's employment as a public servant. Tex. Penal Code Ann. § 22.02(c). However,

viewing all of the evidence in Appellant’s case in the light most favorable to the

prosecution a rational trier of fact could not have found this element beyond a

reasonable doubt.
                                           11
       In McDaniel v. State, this court found the evidence was legally sufficient to

support the defendant’s conviction where his argument implied that he did not know

he was pointing a gun at police officers. McDaniel v. State, No. 01-11-00107-CR, 2012

Tex. App. LEXIS 406, 2012 WL 151465 (Tex. App. – Houston [1st Dist.] January 19,

2012, pet. ref’d) (mem. Op. not designated for publication). The Houston Police

Department was called to a weapons disturbance at an apartment. (Id. at 1). Three

Officers arrived in uniform to speak to the reportee that stated his roommate had

locked him out of the apartment after threatening him with a gun. (Id.). It was

approximately midnight, but all three officers testified there was enough light outside

the apartment for the defendant to see their uniforms. (Id. at 2) They knocked

forcefully on the door, and loudly announced Houston Police Department three times

with a total of 9 knocks when the defendant opened door with a gun in hand. (Id.).

Officers told him to drop the weapon and when the defendant pointed it at them they

tackled the defendant and subdued with force. (Id.).

       Although a similar scenario, our case differs. Houston Police Department was

likewise dispatched to an apartment where Appellant’s wife was claiming to have been

locked out, but there was no mention of weapons. (4 RR at 125, 154). Officer Woods

testified he never knocked on the door or announced police. (4 RR at 128, 147).

Officer Lyons testified it was dimly lit and missing a light. (4 RR at 46). Additionally,

in this case Officers subdued Appellant with force by shooting him multiple times and

acknowledged everything happened very quickly with little time to reflect. (4 RR at
                                            12
149-154, 184). The Officers did not sustain any injuries. (4 RR at 187). This case does

not have the necessary, reasonable inferences the Court relied on in McDaniel to find

the defendant knew the Officers were public servants. (Id.). Appellant did not know

Police Officers were outside the apartment door.

      The trial court erred in denying the defense’s motion for instructed verdict.

This is likely due to the State’s misstatement of Officer testimony. The State argued

against the instructed verdict for this case on the grounds that all of the Officers

testified the lighting was adequate on the top floor to see a police uniform. (5 RR at

34). When in fact, that is nowhere in the record. The only mention of lighting is from

Officer Lyons testifying the stairwell was dark with very limited illumination and the

light in front of the apartment was out. (4 RR at 46-50). The lack of lighting alone in

this case overcomes the presumption that Appellant from inside of his apartment saw

the officers outside in uniforms with badges.

      The combined evidence reveals there was a lack of light, Officer Woods and

Officer Gromyko did not arrive with lights and sirens, they never knocked or

announced their presence, and within seconds Appellant was shot multiple times. A

jury could not have rationally inferred with those facts that Appellant knew beyond a

reasonable doubt that there were men outside of the apartment door that evening or

that they were Police Officers. It was simply too dark and too quick.




                                            13
                                          PRAYER

       Appellant prays this Court to reverse the conviction and remand the case to the

trial court for entry of an order of acquittal.

                                                  Respectfully submitted,


                                                  _s/Tonya Rolland McLaughlin
                                                  Tonya Rolland McLaughlin
                                                  4301 Yoakum Boulevard
                                                  Houston Texas 77006
                                                  Phone: (713) 529-8500
                                                  Fax: (713) 453-2203
                                                  TBN 24054176


                               CERTIFICATE OF SERVICE

       This is to certify that a copy of the foregoing instrument has been delivered via
e-service to the following:

       curry_alan@dao.hctx.net
       Chief Prosecutor, Appellate Division
       Harris County District Attorney’s Office
       1201 Franklin Suite 600
       Houston, Texas 77002-1923

                                                  _s/Tonya Rolland McLaughlin
                                                  Tonya Rolland McLaughlin


                             CERTIFICATE OF COMPLIANCE

       I certify that this computer-generated document has a word count of 2,578
words, based upon the representation provided by the word processing program used
to create the document.

                                                  _s/Tonya Rolland McLaughlin
                                                  Tonya Rolland McLaughlin
                                             14
