                                                                                       ACCEPTED
                                                                                  04-14-00644-CR
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                              2/6/2015 8:41:37 AM
                                                                                    KEITH HOTTLE
                                                                                           CLERK
                                   No. 04-14-00644-CR


                                                                  FILED IN
                                                           4th COURT OF APPEALS
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                                                            SAN ANTONIO, TEXAS
                                                           2/6/2015 8:41:37 AM
                         IN THE COURT OF APPEALS
                                                             KEITH E. HOTTLE
                                                                   Clerk
                                       FOR THE

                FOURTH SUPREME JUDICIAL DISTRICT OF TEXAS

                    AT SAN ANTONIO, BEXAR COUNTY, TEXAS

******************************************************************************

                                ELTON ANTHONY BRANCH
                                      APPELLANT

                                           v.

                                 THE STATE OF TEXAS

******************************************************************************

                                 APPEALED FROM
                              CAUSE NO. 2013-CR-7555
                           IN THE 399TH DISTRICT COURT
                              BEXAR COUNTY, TEXAS

******************************************************************************
                                 BRIEF OF APPELLANT
******************************************************************************
JAMES C. OLTERSDORF
410 South Main St., Suite 205
San Antonio, Texas 78204
(210) 270-8588
SBN: 15278630
Attorney for Appellant
                                STATEMENT OF PARTIES


         In accordance with Texas Rule of Appellate Procedure 72 (a), for the purpose of
disqualification and/or recusal of members of this Honorable Court, the following is a complete
list of those parties involved in the instant action.

Mr. James C. Oltersdorf
SBN: 15278630
410 South Main St., Suite 205
San Antonio, TX 78204
(210) 270-8588
Attorney for Appellant

Mr. Steven Spier
SBN: 24047533
Mr. Daniel Walker
SBN: 24070810
Bexar County District Attorney’s Office
101 W Nueva, Fourth Floor
San Antonio, TX 78205-2260
(210) 335-2311
Appearing for the State

Mr. Sean M. Henricksen
SBN: 24084820
111 Soledad Suite 116
San Antonio, TX 78205
(210) 900-2806
Attorney for Defendant




                                                    i
                                      No. 04-14-00644-CR

******************************************************************************
                         IN THE COURT OF APPEALS
                                   FOR THE
              FOURTH SUPREME JUDICIAL DISTRICT OF TEXAS
                  AT SAN ANTONIO, BEXAR COUNTY, TEXAS
******************************************************************************
                         ELTON ANTHONY BRANCH,
                                 APPELLANT

                                                v.

                                   THE STATE OF TEXAS

******************************************************************************

                                    APPEALED FROM
                                 CAUSE NO. 2013-CR-7555
                              IN THE 399TH DISTRICT COURT
                                 BEXAR COUNTY, TEXAS

******************************************************************************
                                   BRIEF OF APPELLANT
******************************************************************************


TO THE HONORABLE COURT OF APPEALS,


       COMES NOW ELTON ANTHONY BRANCH, Appellant, by and through his attorney of

record, and submits this Brief pursuant to the provisions of the Texas Rules of Appellate Procedure

in support of his appeal from a conviction for the offense of Assault with a Deadly Weapon in the

3996th District Court of Bexar County, Texas, in Cause No. 2013-CR-7555.
                         PRELIMINARY STATEMENT OF CASE

       This is an Appeal from a trial for the offense of Assault with a Deadly Weapon. The jury

found the Appellant guilty on August 22, 2014. Punishment was assessed at 25 years in the Texas

Department of Corrections by the jury on August 23, 2014.

       This case was called to trial on August 20, 2014

       Appellant timely filed Notice of Appeal.




                                                   ii
                                                    TABLE OF CONTENTS



STATEMENT OF THE FACTS .....................................................................................................1



POINT OF ERROR 1 ......................................................................................................................3

           Sufficiency of evidence

POINT OF ERROR 2 ......................................................................................................................5

           Prejudicial photographs were admitted at trial

POINT OF ERROR 3 ......................................................................................................................6

           Hearsay statements were admitted at trial



CONCLUSION ................................................................................................................................6



PRAYER ..........................................................................................................................................7



CERTIFICATE OF SERVICE ........................................................................................................7




                                                                       iii
                                            TABLE OF AUTHORITIES

Cases
                                                                                                                  Page
Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001) ...................................................... 4
Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) ......................................................4
Ates v. State, 21 S.W.3d 384, 390 (Tex.App.- Tyler 2000; no pet.) ................................................4
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) ................................................................4
Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). .......................................................4
Carrizales v. State, 414 S.W.3d 737, 742 (Tex.Crim.App. 2013) .................................................5
Powell v. State, 194, S.W.3d 503, 507 (Tex.Crim.App. 2006) ........................................................5
Wise v. State, 364 S.W.3d 900, 903 (Tex.Crim.App. 2012) ............................................................5
Mayberry v. State, 351 S.W.3d 507, 509 (Tex.App. – San Antonio 2011; pet. ref’d) ....................5
Moreno v. State, 755 S.W.2nd 866 (Tex.Crim.App. 1988) ..............................................................5
Long v. State, 823 S.W.2nd 259 (Tex.Crim.App. 1991 p. 272) ........................................................6




                                                           iv
                                    No. 04-14-00644-CR



******************************************************************************

                              IN THE COURT OF APPEALS

                                          FOR THE

                 FOURTH SUPREME JUDICIAL DISTRICT OF TEXAS

                     AT SAN ANTONIO, BEXAR COUNTY, TEXAS

******************************************************************************

                              ELTON ANTHONY BRANCH,
                                    APPELLANT

                                              v.

                                  THE STATE OF TEXAS

******************************************************************************

                                   APPEALED FROM
                                CAUSE NO. 2013-CR-7555
                             IN THE 399TH DISTRICT COURT
                                BEXAR COUNTY, TEXAS

******************************************************************************
                                  BRIEF OF APPELLANT
******************************************************************************


                              STATEMENT OF THE FACTS


       On June 6, 2013, at the Kiolbassa Provision Company on South Brazos Street in San

Antonio, Texas, Clifton Wallace, a security guard, was making his rounds at 11:00 p.m. In the

parking lot he observed a man inside a vehicle. Mr. Wallace had shortly before observed the
same man enter into a maintenance area at the company. The car Mr. Wallace observed the man

in had most probably not been broken into because keys belonging to the car were found later on

the ground outside the car.

       Mr. Wallace approached the man inside the vehicle and asked him what he was doing. The

man said the car was his, and Mr. Wallace asked for identification. Mr. Wallace did not notice

what was in the man’s hands when he exited the car, but they began wrestling as the man tried to

leave. Two other employees heard Mr. Wallace yell for help, and the employees, Saul Monsivais

and Steve Moreno, observed part of the confrontation as they exited the company building. Both

employees gave chase, but lost sight of the man they had seen with Mr. Wallace.

       The police and EMS were called, and a quadrant was set up by the police around the area.

Appellant was arrested a few blocks away and returned to the scene, where a one-on-one

identification procedure was done by Mr. Monsivais and Mr. Moreno. Appellant’s finger prints

were found on the vehicle.

       Mr. Wallace had it pointed out to him by Mr. Moreno that he was bleeding on his lower

side. Mr. Wallace had not noticed a weapon or felt being stabbed.




                                              −2−
                          APPELLANT’S POINT OF ERROR NO. 1

                                      Law and Argument

       The evidence is not legally sufficient to support Appellant’s Aggravated Assault with a

Deadly Weapon conviction. When Appellant was arrested, there was no blood on him from the

complainant. There were only minor scrapes on his back as shown by the pictures admitted into

evidence and the arresting officer’s testimony. (RR Vol. 3, p. 39-41)

       Mr. Monsivais saw part of the scuffle from 10 to 15 feet away, and his description was “a

tall, dark man.” He could not give the man’s age, and could only say he was taller than 5’6”, Mr.

Monsivais’ own height. (RR Vol. 3, p. 180) Mr. Monsivais said the man wore short hair, a white

shirt with straps and white basketball shorts. He remembered tattoos. (RR Vol. 3, p. 181-182)

When Mr. Monsivais approached the scuffle, the man ran away. Mr. Monsivais gave chase in his

truck, but lost the man. (RR Vol. 3, p 182, 186)

       A knife was found in the parking lot; however, it belonged to another employee of the

company. (RR Vol. 4, p. 42-43) There was no blood on the knife, which was admitted as State’s

#7.0 (RR Vol. 4, p. 42)   There was testimony from the owner of the knife that you would need

two hands to open it, use it. (RR Vol. 4, p. 93)

       Appellant was arrested as the intersection of Saltillo and South Brazos, several blocks

away. He immediately surrendered without incident. Appellant is an African American, and he

was wearing white short when arrested. (RR Vol. 4, p. 62) He was carrying sunglasses and a car

stereo remote. (RR Vol. 4, p. 63)

       Steve Moreno, the other employee who observed the scuffle, was 25 to 30 feet away. (RR

Vol. 3, p. 146) He ran toward Mr. Wallace and saw no actual cut or stab wound, but saw blood.

                                               −3−
(RR Vol. 3, p. 158)

       The finger prints found on the car do not prove that the Appellant was with the victim

during the stabbing. (RR Vol. 4, p. 159) They are not evidence that Appellant stabbed the victim

except by an inference that the Appellant was the perpetrator of the car burglary and then working

backwards. The evidence does not prove that the Appellant had an opportunity to stab the victim.

Instead, the finger prints only prove that Appellant was present at the scene, but mere presence is

not enough to prove guilt. Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App. 2001); Medina

v. State, 7 S.W.3d 641 (Tex.Crim.App. 1996)

       For example, courts have upheld murder convictions based solely on circumstantial

evidence, such as in this case, for cases that have involved proof of motive in addition to other

incriminating circumstances. Ates v. State, 21 S.W.3d 384, 390 (Tex.App.- Tyler 2000; no pet.)



                                       Law and Argument

       The State must prove at trial Elton Branch used and exhibited a deadly weapon, a knife,

that was capable of causing death or serious bodily injury and that he intentionally caused bodily

injury to Clifton Wallace, complainant, by cutting and stabbing the complainant with such deadly

weapon.

       When reviewing the sufficiency of the evidence in a criminal case, we apply the Supreme

Court’s legal sufficiency standard as set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781

(1979). See Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). Applying the Jackson

standard, we view the evidence in the light most favorable to the verdict and determine whether

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

reasonable doubt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex.Crim.App. 2013). We are

                                                −4−
permitted to consider all of the evidence in the record, whether admissible or inadmissible, when

making our determination. Powell v. State, 194, S.W.3d 503, 507 (Tex.Crim.App. 2006).

Appellate Courts must consider all of the evidence presented, and presume the factfinder resolved

any conflicts in favor of the verdict and defer to that determination. Wise v. State, 364 S.W.3d

900, 903 (Tex.Crim.App. 2012). This presumption includes conflicting inferences from

circumstantial evidence. Mayberry v. State, 351 S.W.3d 507, 509 (Tex.App. – San Antonio 2011;

pet. ref’d)

        The role of the Appellate Court is that of a due process safeguard ensuring the rationality of

the trier of fact’s findings of the essential elements of the offense beyond a reasonable doubt.

Moreno v. State, 755 S.W.2nd 866 (Tex.Crim.App. 1988)



                          APPELLANT’S POINT OF ERROR NO. 2

                                        Law and Argument

        Appellant was denied a fair trial by the admission of gruesome photographs which were

also cumulative and whose probative value was greatly outweighed by their prejudicial effect.

Appellant’s attorney properly objected to the photographs. (RR Vol. 3, p. 79-80)

        The State responded to the objection by stating that the photographs depicted different

angles as well as different stages of treatment that the victim received. (RR Vol. 3, p. 80)

        In order for photographs to be relevant under a Rule 403 analysis, they must relate to

identification and cause of injury. Factors cited are the number offered, gruesomeness, detail,

size, black and white or color. Long v. State, 823 S.W.2nd 259 (Tex.Crim.App. 1991 p. 272)



                          APPELLANT’S POINT OF ERROR NO. 3

                                                −5−
                                      Law and Argument

       The State offered hearsay statement from the complainant that were properly objected to

by Appellant. (RR Vol. 3, p. 71-73)

       Mr. Wallace was allowed to recount, over objection, statements made outside the

courtroom to Steve Moreno. (RR Vol. 3, p. 72) Appellant’s attorney objected that such

statement was offered for its truth and was a prior out-of-court statement. (RR Vol. 3, p. 72)



                                         CONCLUSION

       The evidence is not sufficient to support the verdict of guilty because there is no evidence

of a weapon used by Appellant to harm complainant. No weapon was found with blood or prints

on it, and complainant and witnesses never saw or felt any injuries until later. Appellant’s arrest

was based on circumstantial evidence and an almost non-existent description of assailant,

including no race given. Photographs of a prejudicial nature were admitted, along with hearsay

statements.




                                               −6−
                                            PRAYER

       WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Honorable Court

will remand his case to the Court below for a new trial.



                                             _______________________________________
                                             /S/JAMES C. OLTERSDORF
                                             Heritage Plaza Building
                                             410 South Main, Suite 205
                                             San Antonio, Texas 78204
                                             (210) 270-8588
                                             Bar No. 15278630
                                             ATTORNEY FOR APPELLANT




                                      Certificate of Service

       I HEREBY CERTIFY that a true and correct copy of the above and foregoing Brief for
Appellant has been hand-delivered to the Bexar County District Attorney’s Office, Appellate
Section, 300 Dolorosa St., 4th Floor, San Antonio, Texas 78205, on this 5th day of February, 2015.


                                             __________________________________________
                                             /S/JAMES C. OLTERSDORF
                                             Attorney for Appellant




                                               −7−
