                                                                                 ACCEPTED
                                                                             03-16-00129-CR
                                                                                   11204692
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        6/17/2016 1:09:31 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
             No. 03-16-00128-CR & 03-16-00129-CR

                 IN THE COURT OF APPEALS                   FILED IN
                                                    3rd COURT OF APPEALS
                                                        AUSTIN, TEXAS
        FOR THE THIRD SUPREME JUDICIAL           DISTRICT
                                                    6/17/2016 1:09:31 PM
                                                      JEFFREY D. KYLE
                                                            Clerk
                           OF TEXAS



              RODERICK WAYNE PRICE, Appellant

                               VS.

                THE STATE OF TEXAS, Appellee




                  From the 450th District Court of
                       Travis County, Texas,
            the Honorable Judge Don Clemmer, presiding



                     APPELLANT’S BRIEF


                                     Ken Mahaffey
                                     Counsel for Appellant
                                     P. O. Box 684585
                                     Austin, Texas 78768
                                     Phone & Fax (512) 444-6557
                                     St. Bar No. 12830050
                                     Ken Mahaffey@yahoo.com


ORAL ARGUMENT REQUESTED ONLY IF STATE REQUESTS ARGUMENT
                                       TABLE OF CONTENTS


IDENTITY OF JUDGE, PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT. . . . . . . . . . 1

POINT OF ERROR. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

        Did the evidence show Appellant actually foresaw the risk that
        bodily Injury would occur when he grabbed cash from a drawer
        and consciously ignored that risk?


PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE . . . . . . . . 8




                                                         i
              IDENTITY OF JUDGE, PARTIES AND COUNSEL

      The following is a list of all parties to the trial court's final judgment and their

counsel in the trial court:

      1. Trial Judge:                    Don Clemmer
                                         450th District Court
                                         P.O. Box 1748
                                         Austin TX 78767-1748

      2. Appellant:                      Roderick Wayne Price
                                         02049822
                                         Garza West
                                         4250 Highway 202
                                         Beeville, TX 78102-8982

      3. Defense Counsel:                Robb Sheppard
                                         Attorney at Law
                                         P.O. Box 2526
                                         Austin TX 78768-2526

      4. The State of Texas:             Chari Kelly
                                         Travis Co. D. A.'s Office
                                         P.O. Box 1748
                                         Austin TX 78767-1748

                                         Efrain De La Fuente
                                         Travis Co. D. A.'s Office




                                           ii
                                INDEX OF AUTHORITIES

CASES:

 State Cases:

      Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. (2012).. . . . . . . . . . . . . . 7

      Clinton v. State, 354 S.W.3d 795 (Tex. Cr. App. 2011).. . . . . . . . . . . . . . . . 2

      Lane v. State, 763 S.W.2d 785 (Tex. Crim. App. 1989).. . . . . . . . . . . . . . . . 6

      Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . 3

      Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007).. . . . . . . . . . . 4, 5




 Federal Cases:

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



Statutes:

      Sec. 1.07 (8), Tex. Penal Code Ann. (2015). . . . . . . . . . . . . . . . . . . . . . . . . . 4

      Sec. 29.02 (A) (1), Tex. Penal Code Ann. (2015).. . . . . . . . . . . . . . . . . . . . . 3

      Sec. 6.03 (c), Tex. Penal Code Ann. (2015). . . . . . . . . . . . . . . . . . . . . . . . 4, 6




                                                       iii
Rules:

     Rule 3.03, Texas Rules of Prof. Conduct, Vol 3A,
           Tex. Gov’t Code Ann. (2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

     Rule 43 (2), Tex. R. App. Proc. (2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7




                                                iv
                 STATEMENT OF PROCEDURAL HISTORY

      Roderick Wayne Price was indicted for Robbery and Evading Arrest. Both

charged offenses were enhanced with prior convictions. The offenses were alleged

to have been committed on May 30, 2015 in Travis County, Texas. Appellant entered

a plea of not guilty to robbery and a plea of guilty to evading arrest. He also entered

pleas of true to the prior convictions alleged for enhancement. After a trial before a

jury, Appellant was convicted and sentenced to 40 years and 20 years, respectively.

On February 10, 2015, Appellant perfected an appeal to this Court.




                                          v
                            STATEMENT OF FACTS

I. Overview.

      The record shows Appellant snatched money from a cash register at a

Walgreens store in Austin, Texas and fled. He ran to a vehicle driven by another

person which crashed after a high speed chase by police. Appellant fled the vehicle

and was apprehended by police. Appellant pled true to the evading offense but not

guilty to robbery. There were numerous felony enhancement allegations to which

Appellant entered pleas of true. The case was tried with decorum by both sides and

there were no significant objections to jury selection or during trial. The jury found

Appellant guilty and assessed a sentence of 20 years for the enhanced evading charge

and 40 years for the robbery.


II. The Robbery Charge.

       On May 30, 2015, Quinton Taylor was working the night shift a Walgreens

store in Austin, Texas. (RR5 18). Appellant entered and requested to purchase a food

item less than a dollar. (RR5 26 - 27). Taylor directed him to some candy and

contributed some coins from a spare change container kept by the cash register. (RR5

22, 31).

      When the cash drawer opened, Appellant reached over the counter, shoving


                                          vi
Taylor in the process, and took cash approximately $530 from the drawer. (RR5 32,

43, 45). Taylor tried to close the drawer during this event and “tussled” with

Appellant. (RR5 38). Appellant fled the store. (RR5 33, 58). This was captured on a

video surveillance tape admitted without objection as State’s Exhibit 1. (RR5 23 -

24).

       Taylor pursued Appellant to the parking lot and observed him enter a Jeep

Cherokee driven by another person. (RR5 34). The Jeep sped away. (RR5 34). Taylor

then called police. (RR5 35). A recording of the 911 call was also admitted without

objection. (SX 2); (RR5 35).

       Taylor testified he received a scratch on his arm during the altercation over the

cash drawer. (RR5 38). Taylor could not state how he received the scratch. (RR5 54).

He told the 911 operator no one had been injured and no medical assistance was

required. (RR5 35). Appellant did not use a weapon or make any threats. (RR5 54).

       Taylor also testified that sometime later he felt like he had sprained his wrist

and suffered back pain. (RR5 38). He went to an emergency center and received a

split to support his wrist and a prescription for “norco.” (RR5 46 - 47). Taylor stated

the pain persisted for a week causing problems with his second job preparing and

cutting pizza. (RR5 48).

       An Austin Police Officer, Chris Megliorino, testified he observed the scratch

                                          vii
on Taylor’s arm. (RR5 66). He further testified that both Taylor and himself

“surmised” that Taylor must have struck the edge of the counter during the incident.

(RR5 72). Megliorino testified that this was the most logical way in which this could

have occurred. (RR5 72).

       Medical records admitted at trial contain a narrative that Taylor complained of

back and wrist pain as a result of robbery where the person “. . . pushed him and he

hit his back against the cash register.” (SX 36; RR7 82). When Appellant was arrested

after fleeing the scene he was found with $532.00 dollars. (RR5 117 - 118). The issue

in this appeal is whether Appellant had the proper mental state to anticipate that a

bodily injury would occur when he reached forward to take the money from the cash

register.


III. Evading.

       Appellant entered a plea of guilty to the charge of evading arrest. (RR5 8). As

a result, this Statement of Facts will give only a brief outline of those events.

Testimony and video evidence shows police located the Jeep shortly after the

Walgreens incident and pursued it with lights and sirens. (RR5 79 - 80; SX 19). After

a chase with speeds as high as 80 miles per hour, the Jeep overturned. (RR5 101; SX

19). Appellant climbed out of the rear passenger side and fled on foot. (RR5 85). The


                                         viii
driver and other passenger were injured in the wreck and did not leave the scene.

(RR5 89 - 90). Officers apprehended Appellant nearby after a foot chase. (RR5 86).

      There were no objections to the jury charge but trial counsel obtained a lesser

included offense charge on the offense of theft. In a motion for directed verdict, trial

counsel raised the issue of reckless mental state concerning whether the risk of

bodily injury from Appellant’s act of grabbing the money from the cash drawer and

fleeing was foreseeable. (RR5 126 -127). That is the only issue in this appeal.

IV. Punishment Evidence.

      Appellant entered pleas of true to a number of prior felony convictions. These

included the following:

      C      four thefts
      C      robbery
      C      three burglaries of a building; and
      C      evading arrest


(RR6 46 - 50). Appellant called two family members who testified he had a long term

drug problem that was never addressed during his numerous incarcerations. (RR6 52 -

79). The jury assessed punishment at 20 years for felony evading arrest and 40 years

for robbery. (RR6 80). Appellant requested an appeal and new counsel was appointed.

(CR 90, 100).




                                           ix
                         IN THE COURT OF APPEALS

             FOR THE THIRD SUPREME JUDICIAL DISTRICT

                                     OF TEXAS



                     RODERICK WAYNE PRICE, Appellant

                                         VS.

                        THE STATE OF TEXAS, Appellee


                              APPELLANT’S BRIEF


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW Roderick Wayne Price, Appellant, through counsel, Ken

Mahaffey, and respectfully submits this Brief.

     STATEMENT OF THE CASE AND SUMMARY OF ARGUMENT

      Appellant submits the record supports finding that he committed a simple theft

rather than robbery. Robbery requires the actor consciously disregard a substantial

risk that bodily injury will result from his actions. The record does not support a

finding that he foresaw that his actions of grabbing cash from the register and fleeing

could result in such injury. Appellant now respectfully tenders this brief on appeal.




                                          1
                                POINT OF ERROR

      Did the evidence show Appellant actually foresaw the risk that bodily
      injury would occur when he grabbed cash from a drawer and consciously
      ignored that risk?


                       ARGUMENT AND AUTHORITIES

I. Introduction.

      The record shows Appellant grabbed money from a cash register and fled. The

store clerk testified he received a scratch on his arm from the incident but was unable

to identify how it happened. An investigating officer stated the most likely cause of

the scratch was the clerk’s contact with the counter during the incident. As argued at

trial, the issue here is whether this record shows Appellant had the culpable mental

state of recklessness concerning the risk of bodily injury when he took the money.


II. Standard of Review.

      A conviction may be reversed for legally insufficient evidence. Jackson v.

Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Sufficiency

review consists of two steps. Clinton v. State, 354 S.W.3d 795, 799 (Tex. Cr. App.

2011). First, the reviewing court determines “the essential elements of the crime”

which must be proved for conviction. Id. Second, the court examines in the record in

the light most favorable to verdict to determine whether any rational trier of fact

                                          2
could have found the essential elements of the offense beyond a reasonable doubt. Id.;

see also Jackson, 99 S.Ct. at 2789.

          The “essential elements of the crime” are determined in relation to a

“hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997). A hypothetically correct jury charge is “one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily increase the

State’s burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.” Id.

The necessary proof is defined by “the statutory elements of the offense . . . as

modified by the charging instrument.” Id.


III. Elements of the Offense.

      Appellant was convicted of robbery under Sec. 29.02 (A) (1), Tex. Penal Code

Ann. (2015). This statute, in relevant part, defines the offense as follows:

      (a) A person commits an offense if, in the course of committing theft as
      defined in Chapter 31 and with intent to obtain or maintain control of the
      property, he:

             (1) intentionally, knowingly, or recklessly causes bodily injury to
             another . . .

Id. As a result, theft becomes robbery when the person causes bodily injury with the

requisite mental state. Id. Here, the indictment and jury charge authorized the jury

                                           3
to find Appellant guilty if he acted recklessly. (CR 15, 72).


IV. Reckless Requires Proof the Actor Disregarded a “Substantial and
Unjustifiable Risk.”

      Section 6.03 (c), Tex. Penal Code Ann. (2015), defines “reckless” as follows:

      (c) A person acts recklessly, or is reckless, with respect to circumstances
      surrounding his conduct or the result of his conduct when he is aware of but
      consciously disregards a substantial and unjustifiable risk that the
      circumstances exist or the result will occur. The risk must be of such a nature
      and degree that its disregard constitutes a gross deviation from the standard of
      care that an ordinary person would exercise under all the circumstances as
      viewed from the actor's standpoint.


Id. As argued at trial, (RR5 126 -127), Appellant submits that there is insufficient

evidence that, when viewed from his standpoint, he consciously disregarded a risk of

bodily injury when he took the money from the cash register and ran.


V. Definition of Bodily Injury.

      “Bodily injury” is defined in Sec. 1.07 (8), Tex. Penal Code Ann. (2015), as

follows: “‘Bodily injury’ means physical pain, illness, or any impairment of physical

condition.” Id. To prove “. . . recklessness requires the defendant to actually foresee

the risk involved and to consciously decide to ignore it.” Williams v. State, 235

S.W.3d 742, 750 - 751 (Tex. Crim. App. 2007). Appellant submits that the evidence

does not support a finding that his act of grabbing money and running away involved

                                          4
an awareness that bodily injury could occur from his actions.1

      Section 6.03 (c), Tex. Penal Code Ann. (2015), defining “reckless” requires

that the results of one actions must be consciously disregarded at or before the time

the event occurred. Williams v. State, 235 S.W.3d 742, 750 - 751 (Tex. Crim. App.

2007). The record shows that even the clerk himself did not know exactly how any

injury occurred supporting a finding that it was not a foreseeable risk from appellant’s

actions. (RR5 35)(told 911 no one injured); (RR5 54)(did not know how he got the

scratch). Moreover, the record shows any injury most likely occurred when the clerk

struck the counter while trying to stop Appellant from taking the money. (RR5 72)

(investigating officer testified he and complainant surmised any injury occurred by

contact with the counter). As argued at trial, the injuries were not foreseeable from

that act of grabbing the money and running away. (RR5 126 - 127).



VI. Disclosure of Contrary Authority.

      It is important to candidly disclose contrary authority to the court. See Rule

3.03, Texas Rules of Prof. Conduct, Vol 3A, Tex. Gov’t Code Ann. (2015)(duty of

      1
        Counsel does not want to mis-represent the record. The record clearly
supports a finding of bodily injury. (RR5 38)(clerk received scratch and described
wrist and back pain after tussle). The only issue raised here is whether, from
Appellant’s standpoint, that an unjustifiable risk of such injury was apparent to him
from his actions of grabbing the cash and running away.

                                           5
counsel to inform court of contrary authority). While the facts are different, the Court

should be made aware of Lane v. State, 763 S.W.2d 785 (Tex. Crim. App. 1989). In

this case, the Court considered a case where the actor struggled with a victim who did

not let go of a wallet and sustained a bruise to her wrist. Id. at 786. The Court of

Appeals found there was insufficient evidence because the record did not show any

actual contact with the victim. Id. The Court of Criminal Appeals reversed because

the record showed the actor actually grasped the fingers of the victim and twisted her

wrists during the struggle showing an awareness that bodily injury could occur. Id.

      Appellant submits that the record here shows only a grab for the cash and

incidental contact with the clerk. Unlike Lane, supra, such actions do not demonstrate

an awareness that a substantial and unjustifiable risk existed that the clerk could be

injured.


VII. Conclusion.

      The evidence does not show that bodily injury was a recognizable risk from

Appellant’s standpoint where he simply snatched cash from a drawer and ran away.

See Sec. 6.03 (c), Tex. Penal Code Ann. (2015). This was a simple theft not a

robbery. Since the requisite mental state of recklessness has not been shown, the

judgment should be reformed to show a conviction for the lesser included offense of


                                           6
theft. Rule 43 (2), Tex. R. App. Proc. (2015)( appellate courts authorized to modify

trial court judgments); Bowen v. State, 374 S.W.3d 427, 428 (Tex. Crim. App. (2012)

(may reform judgment to reflect a lesser-included offense supported by the record).

Appellant does not claim he committed no offense, only that he was convicted of a

more serious offense than the record reflects. This Court should reform the judgment.



                             PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays that

the judgment of conviction for robbery be reversed, the judgment reformed to reflect

a conviction for theft and the matter be remanded to the trial court for a new hearing

on punishment.


                                                    Respectfully Submitted,



                                                    Ken Mahaffey
                                                    Counsel for Appellant
                                                    P.O. Box 684585
                                                    Austin, Texas 78768
                                                    Phone & Fax (512) 444-6557
                                                    St. Bar. No. 12830050
                                                    Ken Mahaffey@yahoo.com




                                          7
   CERTIFICATE OF SERVICE AND WORD COUNT COMPLIANCE

      The above signature certifies that on June 17, 2016, this document was sent by

electronic service to the Travis County D.A.’s Office, P.O. Box 1748, Austin TX

78767-1748 and to Roderick Wayne Price, 02049822, 4250 Highway 202, Beeville,

TX 78102-8982. The above signature also certifies that this document contains 2796

words in compliance with Rule 9.4, Tex. R. App. Proc. (2016)(not to exceed 15,000

words).




                                         8
