                                                                         ACCEPTED
                                                                     01-13-00805-CR
                                                          FIRST COURT OF APPEALS
                                                                  HOUSTON, TEXAS
                                                                7/31/2015 2:16:01 PM
                                                               CHRISTOPHER PRINE
           No. 01-13-00805-CR                                                 CLERK


                    In the
              Court of Appeals
                   For the                         FILED IN
                                            1st COURT OF APPEALS
       First Judicial District of Texas         HOUSTON, TEXAS
                 At Houston                 7/31/2015 2:16:01 PM
                                            CHRISTOPHER A. PRINE
                                                    Clerk

                No. 1875634
In the County Criminal Court at Law No. 7 of
            Harris County, Texas

      RODNEY CARNELL MAYS
             Appellant
                V.
       THE STATE OF TEXAS
             Appellee

      STATE’S APPELLATE BRIEF

                                  DEVON ANDERSON
                                  District Attorney
                                  Harris County, Texas

                                  ALAN CURRY
                                  Assistant District Attorney
                                  State Bar # 05263700

                                  MARIEL DELAGARZA &
                                  BRADLEY MEANS
                                  Assistant District Attorneys
                                  Harris County, Texas
                                  1201 Franklin, Suite 600
                                  Houston, Texas 77002
                                  Tel.: 713/755-5826
                                  Fax No.: 713/755-5809
                                  curry_alan@dao.hctx.net

 ORAL ARGUMENT NOT REQUESTED
              STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State does

not request oral argument.

                     IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list

of the names of all interested parties is provided below.

      Counsel for the State:

             Devon Anderson – District Attorney of Harris County

             Alan Curry  Assistant District Attorney on appeal

             Mariel De la Garza — A Assistant District Attorney at trial

             Bradley Means — Assistant District Attorney at trial

      Appellant or Criminal Defendant:

             Rodney Carnell Mays

      Counsel for Appellant:

             Daucie Schindler — Counsel on appeal

             Myron Davis — Counsel at trial

      Trial Judge:

             Honorable Pam Derbyshire — Presiding judge of County Criminal

             Court at Law No. 7




                                          ii
                            TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT…………………………….. ii

IDENTIFICATION OF THE PARTIES………………………………………….. ii

INDEX OF AUTHORITIES……………………………………………………... iv

STATEMENT OF THE CASE………………………………………………….....1

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

SUMMARY OF THE ARGUMENTS……………………………………………. 3

REPLAY TO APPELLANT’S POINT OF ERROR……………………………… 4

I. The evidence in the appellate record is sufficient to show that appellant struck
   complainant with his hand as alleged in the information. …………………….. 4

CONCLUSION…………………………………………………………………… 7

CERTIFICATE OF COMPLIANCE……………………………………………… 8

CERTIFICATE OF SERIVICE………………………………………………….... 9




                                        iii
                       INDEX OF AUTHORITIES
CASES
Adames v. State
     353 S.W.3d 854 (Tex. Crim. App. 2011)…………………………………... 4

Allen v. State
      36 Tex.Crim. 436, 37 S.W. 738 (1896)…………………………………….. 5

Carroll v. State
     698 S.W.2d 278 (Tex.App.—Fort Worth 1985, pet. ref’d)………………... 6

Jackson v. Virginia
      443 U.S. 307 (1979)……………………………………………………... 4, 5

Johnson v. State
     2002 WL 370199, Tex.App.—Houston (14th Dist.), March 7, 2002, pet.
     ref'd) (not designated for publication)…………………………………….... 6

Laster v. State
      275 S.W.3d 512 (Tex.Crim.App. 2009)……………………………………. 5

Lee v. State
       No. 01-12-00719-CR, 2013 WL 4676358 (Tex. App. Aug. 27, 2013)…….. 5

Lewis v. State
      520 S.W.2d 117 (Tex.Crim.App. 1975)……………………………………. 5

Malik v. State
      953 S.W.2d 234 (Tex.Crim.App.1997)…………………………………….. 5

Sykes v. State
      2007 WL 2264601 Tex.App.—Houston (1st Dist.), August 9, 2007, pet.
      ref'd) (not designated for publication)……………………………………… 5

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




                                    iv
RULES
TEX. R. APP. P. 39.1………………………………….............................................. ii

TEX. R. APP. P. 38.2(a)(1)(A)…………………………………............................... ii

TEX. R. APP. P. 9.4(g)…………………………………........................................... ii

TEX. R. APP. P. 9.4(i)…………………………………............................................ 9




                                        v
TO THE HONORABLE COURT OF APPEALS:

                            STATEMENT OF THE CASE

      The State charged appellant by information with assault of a family member

(CR at 6; 1 RR Supp. at 4-5). Appellant entered a plea of not guilty, and requested

a bench trial (CR at 47; RR Supp. at 5). The trial court found appellant guilty and

sentenced appellant to 56 days confinement in the Harris County Jail, following the

agreed punishment recommendation by the State (CR at 49-50; 2 RR Supp. at 47).

Appellant filed timely notice of appeal (CR at 54). Appellant’s counsel on appeal

filed a motion to withdraw, but was denied by this Court (CR Supp. at 4). This

Court also abated the appeal to determine if appellant wanted to actually pursue

this appeal (CR Supp. at 3-5). The trial court determined that appellant did want to

pursue the appeal; also that appellant was indigent and appointed appellant counsel

(CR Supp. at 6-7).

                            STATEMENT OF THE FACTS

      Appellant and complainant first met in early 2009 at a shopping mall (1 RR

Supp. at 10). Appellant informed complainant that he was a counselor for troubled

teens, youth, and young adults (1 RR Supp. at 10). Complainant was led to believe

that appellant could help her get over what she had been going through (1 RR

Supp. at 10). The two exchanged phone numbers and began talking via phone (1

RR Supp. at 10).      After a month or two after first meeting, appellant and



                                         1
complainant arranged to meet again for what complainant thought would be a

counseling session (1 RR Supp. at 11).

      Appellant picked up complainant from her father’s home and drove the pair

to a studio house party (1 RR Supp. at 11). After leaving the party, appellant and

complainant returned to his car and engaged in sexual intercourse (1 RR Supp. at

12). Complainant became pregnant following the encounter (1 RR Supp. at 12).

At the time, Complainant believed the baby belonged to her then-fiancé and

therefore did not inform appellant of her pregnancy (1 RR Supp. at 13). It was only

during subsequent child custody collection proceedings between her and her ex-

fiancé that complainant found out appellant was the father of her child (1 RR Supp.

at 13). Complainant informed appellant about their child and allowed visitation on

a restricted basis due to the child’s severe asthma (1 RR Supp. at 14).

      On December 18, 2012, complainant contacted appellant when their son

needed to be taken to the hospital for an asthma treatment (1 RR Supp. at 15).

Appellant drove complainant and their son to the hospital, and also offered to drive

them home (1 RR Supp. at 16). However, appellant did not drive complainant

home, but drove them back to his condo instead (1 RR Supp. at 16). Complainant

did not want to go to appellant’s condo because she feared that she would be alone

with appellant sexually (1 RR Supp. at 16).




                                          2
          Upon arrival to appellant’s condo, complainant removed her son from the

car, along with his booster seat and diaper bag, and proceeded to the bus stop. (1

RR Supp. at 17-18). Appellant became mildly upset at complainant and pleaded

with her to stay (1 RR Supp. at 18). As complainant continued to walk away,

appellant attempted to grab their son and then his booster seat to make the

complainant stay (1 RR Supp. at 18). Appellant then walked around in front of

complainant and stood in front of her with his fist balled up in the air, ranting and

raving at complainant (1 RR Supp. at 18-19). Complainant told appellant that she

“wished he would” and walked around appellant, still holding her son (1 RR Supp.

at 19).

          As complainant walked away, appellant punched her in the back of the head

(1 RR Supp. at 19). Complainant immediately felt pain and struggled to maintain

her balance as she began to fall forward (1 RR Supp. at 19). Complainant lost her

balance and fell to the ground, landing on her bottom first and then hitting her head

on a door (1 RR Supp. at 20). Appellant had walked away after he punched

complainant (1 RR Supp. at 20). After collecting herself and assuring her son’s

safety, complainant called 911 to report the assault. (1 RR Supp. at 20).




                                          3
                      SUMMARY OF THE ARGUMENT

      The trial court properly denied Appellant’s Motion for an Instructed Verdict

because the State presented evidence that was sufficient to prove beyond a

reasonable doubt that appellant struck complainant with his hand.



                REPLY TO PPELLANT’S POINT OF ERROR

 I.   The evidence in the appellate record is sufficient to show that appellant
      struck complainant with his hand as alleged in the information.


      Appellant argues that a directed verdict was proper because the State failed

to satisfy the manner and means requirement for assault, specifically that the

complaint was struck by appellant’s hand as alleged in the information. Appellant

relies on the fact that the complainant did not actually see him strike her, with his

hand or otherwise as the basis of his appeal.

                                Standard of Review

      In a sufficiency review, an appellate court reviews all the evidence in the

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

could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d 854,

859 (Tex. Crim. App. 2011). Viewed in the light most favorable to the verdict, the

evidence is insufficient under this standard in two circumstances: (1) the record



                                          4
contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense; or (2) the evidence conclusively establishes a reasonable doubt. Lee

v. State, No. 01-12-00719-CR, 2013 WL 4676358 (Tex. App. Aug. 27, 2013),

citing Jackson, 443 U.S. at 314, 318 n. 11, 320; Laster v. State, 275 S.W.3d 512,

518 (Tex.Crim.App. 2009); Williams v. State, 235 S.W.3d 742, 750

(Tex.Crim.App. 2007).      When reviewing the sufficiency of the evidence, the

essential elements of the offense are those of a hypothetically correct jury charge.

Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). This standard can

uniformly be applied to all trials, whether to the bench or to the jury. Id.

                                       Analysis

      Appellant first argues that because complainant had her back turned to the

appellant prior to the assault, complainant did not actually see how he hit her in the

back of the head (Appellant’s Brief at 10). Appellant attempts to distinguish the

present case from Carroll v. State, 698 S.W.2d 278 (Tex.App.—Fort Worth 1985,

pet. ref’d). In Carroll, the court held that there was no material variance between

the indictment, which alleged that the defendant hit the victim with his fist, and the

proof which defendant contented did not show he used a fist to hit the victim. The

Carroll court looked to Allen v. State, 36 Tex. Crim. 436, 37 S.W. 738 (1896)

which held that it was hypercritical to distinguish between a hand and a clenched

fist when the proof established that appellant struck the victim with his hand.



                                           5
      In the present case, there is sufficient evidence that appellant struck the head

with his hand. Complainant’s testimony specifically established how appellant

assaulted her: by punching her in the back of her head. Complainant testified that

appellant “got angry and punched me in the back of the head” (1 RR Supp. at 19).

The fact finder, in this case the trial court, was free to define the term “punched” to

its ordinary usage and meaning, to strike with a hand. Johnson v. State, 2002 WL

370199, Tex.App.—Houston (14th Dist.), March 7, 2002, pet. ref'd) (not

designated for publication). Appellant correctly notes that, in Johnson, there was a

witness that saw the defendant punch the victim. In the present case, there was no

witness to the assault. However, during the State’s case in chief, complainant

stated that prior to the assault, appellant “… walked around in front of me with his

fists balled up in the air…” and then she walked around appellant to continue to

leave. (1 RR Supp. at 18). It was within the discretion of the trial court to interpret

“punch” has a strike with the hand, even without a witness to the assault.

      Furthermore, the trial court held that the evidence was sufficient to prove the

manner and means of the assault (1 RR Supp. at 24-25). The State proved the

offense alleged in the indictment though complainant’s testimony. The record

contains sufficient evidence that is probative of an element of assault. Thus, this

Court should overrule appellant’s first point of error and uphold his conviction.




                                          6
                                  CONCLUSION

      The State of Texas respectfully urges the Court to overrule appellant’s point

of error and affirm his conviction.

                                                  DEVON ANDERSON
                                                  District Attorney
                                                  Harris County, Texas

                                                  /s/ Alan Curry

                                                  ALAN CURRY
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin, Suite 600
                                                  Houston, Texas 77002
                                                  (713) 755-5826
                                                  TBC No. 05263700
                                                  curry_alan@dao.hctx.net




                                        7
                        CERTIFICATE OF COMPLIANCE

          The undersigned attorney certifies that this computer-generated document

has a word count of 1,254 words, based upon the representation provided by the

word processing program that was used to create the document. TEX. R. APP. P.

9.4(i).


                                                    /s/ Alan Curry

                                                    ALAN CURRY
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    (713) 755-5826
                                                    TBC No. 05263700
                                                    curry_alan@dao.hctx.net




                                          8
                         CERTIFICATE OF SERVICE

      The State will mail a copy of the foregoing instrument to appellant’s

attorney at the following address:

      Daucie Schindler
      Attorney at Law
      1201 Franklin, 13th Floor
      Houston, Texas 77002

                                              /s/ Alan Curry

                                              ALAN CURRY
                                              Assistant District Attorney
                                              Harris County, Texas
                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              (713) 755-5826
                                              TBC No. 05263700
                                              curry_alan@dao.hctx.net

Date: July 31, 2015




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