                                                                                                  ACCEPTED
                                                                                              06-15-00151-CR
                                                                                   SIXTH COURT OF APPEALS
                                                                                         TEXARKANA, TEXAS
                                                                                         12/1/2015 4:45:30 PM
                                                                                             DEBBIE AUTREY
                                                                                                       CLERK

                              CASE NO. 6-15-00151-CR

                                         In The                            FILED IN
                                                                    6th COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                           COURT OF APPEALS
                                                                    12/2/2015 8:52:00 AM
                       SIXTH DISTRICT OF TEXAS
                                                                        DEBBIE AUTREY
                            AT TEXARKANA                                    Clerk
________________________________________________________________________

                     EVENDER GENE JACKSON, JR., Appellant

                                          VS.

                          THE STATE OF TEXAS, Appellee

                     On Appeal from 196th Judicial District Court
                               of Hunt County, Texas
                           Trial Court Cause No. 30,536
                     Honorable J. Andrew Bench, Judge Presiding

                          APPELLANT'S BRIEF
________________________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Comes now the Appellant and submits this brief pursuant to the provisions of the

Texas Rules of Appellate Procedure in support of his request for the judgment of

conviction to be overturned in Cause No. 30,536.

                               Oral Arguments Requested
                      IDENTITY OF PARTIES AND COUNSEL


Appellant's Attorney:
Jessica Edwards
P.O. Box 9318
Greenville, TX 75404

Appellant's Attorney at Trial:
Jeffrey Jason Jackson
1101 Main Street
Commerce, TX 75428

Appellee:
The State of Texas by and through
Calvin Grogan
Assistant Hunt County District Attorney
4th Floor Hunt County Courthouse
2507 Lee Street
Greenville, TX 75401




                                                        2
                                  TABLE OF CONTENTS

Identity of Parties and Counsel                       2

Table of Contents                                     3

Index of Authorities                                  4

Statement of the Case                                 6

Issues Presented                                      6

Statement of Facts                                    6

Point of Error Number One                             9

Point of Error Number Two                             13

Point of Error Number Three                           15

Prayer for Relief                                     21

Certificate of Service                                21

Certificate of Compliance                             22




                                                           3
                             INDEX OF AUTHORITIES

Case Authority                                                                  Page(s)

Federal Cases

Jackson v. Virginia, 443 U.S. 307 (1979)                                            16

Michel v. Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83 (1955)                 14

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)    13,14


State Cases

Armstead v. State, 977 S.W.2d 791(Tex.App.-Fort Worth 1998, pet. ref’d)             17

Brooks v. State, 580 S.W.2d 825 (Tex.Crim.App. [Panel Op.] 1979)                    17

Cathey v. State, 992 S.W.2d 460 (Tex.Crim.App.1999)                                 19

Cocke v. State, 201 S.W.3d 744 (Tex.Crim.App. 2006)                                 10

Cordova v. State, 698 S.W.2d 107 (Tex.Crim.App.1985)                                17

Druery v. State, 225 S.W.3d 491 (Tex. Crim. App. 2007)                           10, 19

Gamez v. State, 737 S.W.2d 315 (Tex.Crim.App. 1987)                              10, 15

Garcia v. State, 57 S.W.3d 436 (Tex. Crim.App.2001), cert. denied, 537 U.S. 1195, 123
S.Ct. 1351, 154 L.Ed.2d 1030 (2003)                                                 14

Laster v. State, 275 S.W. 3D 512 (Tex. Crim. App. 2009)                             16

Martinez v. State, 763 S.W.2d 413 (Tex. Crim. App. 1988)                            18

Maynard v. State, 166 S.W.3d 403 (Tex.App.-Austin 2005, pet. ref’d)                 19

Paredes v. State, 129 S.W.3d 530 (Tex. Crim. App. 2004)                             10

Ransom v. State, 920 S.W.2d 288 (Tex.Crim.App.1994)                                 17


                                                                                      4
Rylander v. State, 101 S.W.3d 107 (Tex.Crim.App.2003)                              14

Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991)                     10,11

Smith v. State, 332 S.W.3d 425 (Tex. Crim. App. 2011)                            9,10

Solomon v. State, 49 S.W.3d 356 (Tex.Crim.App.2001)                                19

Stephens v. State, 717 S.W.2d 338 (Tex.Crim.App.1986)                              16

Thompson v. State, 9 S.W.3d 808 (Tex. Crim.App.1999)                               14

Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005)                        16

Walker v. State, 615 S.W.2d 728 (Tex.Crim.App.1981)                                19

Washington v. State, 127 S.W.3d 197 (Tex. App. Houston [1st Dist. ] 2003,
pet. Dism'd)                                                                       16

Wincott v. State, 59 S.W.3d 691 (Tex.App.-Austin 2001, pet. ref’d)                 19

Wooden v. State, 101 S.W.3d 542 (Tex.App.-Fort Worth 2003, pet. ref’d)       16,18



Statute and Rules

Tex. Code Crim. Pro. Article 38.14                                          9,19

Tex. Penal Code. Sec. 7.02                                                  16,17

Tex. Penal Code. Sec. 15.02                                                 17




                                                                                    5
                                     STATEMENT OF THE CASE

       This is an appeal of judgment and sentence in a criminal case from the 196th

Judicial District Court in Hunt County, Texas. Appellant was convicted by a jury of

Aggravated Robbery with a Deadly Weapon on August 11, 2015. On August 12, 2015,

the jury assessed Appellant's punishment at 50 years in the Texas Department of Criminal

Justice, Institutional Division.

                                    ISSUES PRESENTED

        Point of Error No. 1:

       The Trial Court erred in failing to submit an accomplice witness charge in the jury
       instructions under Texas Code of Criminal Procedure Article 38.14.


       Point of Error No. 2:

       Appellant received ineffective assistance of trial counsel due to trial counsel’s
       failure to request an accomplice witness instruction in the jury charge.


       Point of Error No. 3:

       The evidence is legally insufficient to prove Appellant guilty of Aggravated
       Robbery with a Deadly Weapon.


                                   STATEMENT OF FACTS

       On June 15, 2015, Spencer Sweeden was playing video games and drinking beer

with a friend until the wee hours of the morning. (R.R. 3, p. 29). Mr. Sweeden was

carrying a CO2 pistol with him as he began to walk home. (R.R. 3, 29, 31). As Mr.

Sweeden walked down the street, he noticed a man on a bicycle pass him and go into a


                                                                                           6
white house. (R.R. 3, p. 32). Mr. Sweeden was able to identify the race of the man on the

bicycle as African-American. (R.R. 3, p. 32). As Mr. Sweeden continued to walk, the

man on the bicycle and another African-American man wearing basketball shorts came

out of the white house. (R.R. 3, p. 32). The two men began talking to Mr. Sweeden.

(R.R. 3, p. 33). Mr. Sweeden testified he became nervous and told the two men that he

was “strapping.” (R.R. 3, p. 33). According to Mr. Sweeden, the two men rushed up to

him, one going in front of him and one behind. (R.R. 3, p. 34). Mr. Sweeden testified the

man who had been on the bicycle was behind him, grabbed him by the head, forced him

to the ground and began to beat him. (R.R. 3, p. 34). Mr. Sweeden further testified the

other man stood in front of him brandishing a weapon that appeared to be a sawed-off

shotgun. (R.R. 3, p. 34-35). Mr. Sweeden testified the man who had been on the bicycle

asked him what he had on him and took his wallet, his keys, his hat and his CO2 pistol.

(R.R. 3, p. 35).

       Later that morning, Mr. Sweeden described the individuals to the Commerce

Police Department. (R.R. 3, p. 38). Mr. Sweeden described the man on the bicycle as a

black male wearing a vest with many pockets. (R.R. 3, p. 38). Mr. Sweeden described

the other individual as wearing basketball shorts, a t-shirt, and having his hair done in

cornrows. (R.R. 3, p. 39).

       A few days after the incident, Mr. Sweeden participated in a photo lineup at the

Commerce Police Department. (R.R. 3, p. 40). Mr. Sweeden testified he was able to

identify the two individuals involved in the incident in the photo lineup. (R.R. 3, p. 41).

In open court, Mr. Sweeden identified Appellant as one of the men involved in the

                                                                                              7
incident. (R.R. 3, p. 41). However, Appellant did not specify whether Appellant was the

man on the bicycle or the man with the gun.

       The State called Eddie James Dean, Jr. to testify as an accomplice witness. (R.R.

3, p. 49). Mr. Dean testified that he committed the aggravated robbery of Spencer

Sweeden with Evender Jackson on June 15, 2015. (R.R. 3 p. 50-51). Mr. Dean testified

that he held the gun during the robbery and that Appellant is the one who struck Mr.

Sweeden and took his things. (R.R. 3, p. 51). According to Mr. Dean, he and Appellant

had not made any plan to commit the aggravated robbery of Mr. Sweeden, or of anyone

else. (R. R. 3, p. 52-53). Mr. Dean never informed Appellant that he had a gun nor did

Mr. Dean tell Appellant he was going to get and use a gun. (R.R. 3, p. 62). Mr. Dean

testified that he did not get his shotgun until Mr. Sweeden said he was armed. (R.R. 3, p.

54). Mr. Dean testified that when Appellant first arrived at the garage where Mr. Dean

was, Mr. Dean did not have his shotgun. (R.R. 3, p. 54). Mr. Dean testified that

Appellant approached Mr. Sweeden first and was talking to him and that Mr. Dean

retrieved his shotgun from his garage after Mr. Sweeden announced he had a was armed.

(R.R. 3, p. 55). There is no evidence in the record that Appellant every aided, solicited,

or in any way encouraged Mr. Dean to use or exhibit his gun.

       Eddie James Dean, Jr. was a convicted felon at the time he testified against

Appellant. (R.R. 3, p. 58).

       Officer Tyler Oakley with the Commerce Police Department testified he received

a description of two suspects from Spencer Sweeden. (R.R. 3, p. 74). Tyler Oakley,

David Wallace and Marcus Cantera all testified that they came upon Appellant outside

                                                                                             8
the house on Washington Street, standing beside a vehicle. (R.R. 3, p. 76, 93, 110). The

officers testified that they saw items on the hood of the vehicle, including the California

ID of Spencer Sweeden. (R.R. 3, p. 76, 93, 110). None of the witnesses testified they saw

Appellant in possession of the items, nor was any evidence presented that Appellant

placed the items on the hood of the vehicle. None of the State’s three law enforcement

officers saw Appellant wearing the vest with many pockets described by Mr. Sweeden.

None of the State’s law enforcement witnesses saw Appellant on the bicycle described by

Mr. Sweeden. Marcus Cantera testified that as he approached the scene of the crime, saw

the “silhouette of an individual, which appeared to be on a bicycle. (R.R. 3, p. 109). Sgt.

Cantera further testified that he turned a corner and then saw a black male standing

beside a vehicle with a bicycle on the ground next to him. (R.R. 3, 110). Sgt. Cantera said

it was his belief this was the same person he had seen on the bicycle. (R.R. 3, p. 10).



                          POINT OF ERROR NUMBER ONE

The Trial Court erred in failing to submit a jury instruction under Texas Code of Criminal
                                  Procedure Article 38.14.

                                         The Law

       Under Texas Code of Criminal Procedure Article 38.14, a conviction cannot stand

on an accomplice witness’s testimony unless the testimony is corroborated by other, non-

accomplice evidence that tends to connect the accused to the offense.

       The Legislature has held that the factfinder in any criminal case should exercise

caution when considering the testimony of an accomplice. Smith v. State, 332 S.W.3d 425,


                                                                                              9
439 (Tex. Crim. App. 2011) Accomplice testimony is particularly suspect as “accomplices

often have incentives to lie, such as to avoid punishment or shift blame to another person.”

Id. An accomplice is a person who participates in the offense before, during, or after its

commission with the requisite mental state. Druery v. State, 225 S.W.3d 491, 498 (Tex.

Crim. App. 2007) citing Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).


       A State’s witness may be an accomplice as a matter of law or as a matter of fact.

Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App. 2006). A witness who is indicted

for the same offense or a lesser-included offense as the accused is an accomplice as a

matter of law. Id at 748. When the evidence clearly shows that a witness is an

accomplice as a matter of law, the trial judge must instruct the jury accordingly. Gamez v.

State, 737 S.W.2d 315, 322 (Tex.Crim.App. 1987). Failure to provide such a charge is

error. Id. When the jury is not informed of this requirement it makes it possible for

rational jurors to convict even absent corroboration which they find convincing. Id.


                                     Harm Analysis

       Omission of an unrequested jury instruction applicable to the case calls for a new

trial only when the defendant was greatly disadvantaged thereby. Saunders v. State, 817

S.W.2d 688, 692 (Tex. Crim. App. 1991). This degree of harm, sufficiently serious to be

called “egregious,” is present whenever a reviewing court finds that the case for conviction

or punishment was actually made clearly and significantly more persuasive by the error .

Id.

Appellate Courts have found the error was egregiously harmful because “rational jurors

                                                                                           10
would have found the State’s case for conviction clearly and significantly less persuasive

had they been properly instructed Id. at 693.

                                         Argument


       Eddie James Dean, Jr. was one of the State’s principal witness against Appellant at

his trial. At the time Mr. Dean testified against Appellant, he himself had been indicted for

the same offense for which Appellant was standing trial. (R.R. 3, p. 11-12).              The

indictment filed in Appellant’s case alleged that Appellant, “individually and acting

together with Eddie James Dean, Jr.” committed the offense for which Appellant was tried.

Mr. Dean was unquestionably therefore an accomplice as a matter of law, and it was error

for the trial court to fail to submit an accomplice-witness instruction to the jury.

       Although Appellant did not object at trial, Appellant is nonetheless entitled to a

reversal as the record demonstrates that the error resulted in egregious harm. The State’s

most incriminating evidence against Appellant was the testimony of the accomplice, Eddie

Dean. Our law requires that such testimony be corroborated by evidence connecting

Appellant with the offense before conviction is warranted. Failure to inform the jury of this

requirement makes it possible for rational jurors to convict even absent corroboration

which they find convincing.

       In the instant cause, the State's only evidence defining Appellant’s role in the

charged offense came from the accomplice, Eddie Dean. While Spencer Sweeden, the

victim named in the State’s indictment, was able to identify Appellant’s face as someone

he recognized, he was never able to identify which of the two person’s Appellant was; i.e.


                                                                                           11
the man on the bicycle or the man in the basketball shorts. Mr. Sweeden’s identification

was so weak that, without the accomplice testimony, the jury would have no idea whether

Appellant was alleged to be the man who held the gun or the man who hit Mr. Sweeden.

Therefore, Mr. Dean’s testimony as to Appellant being the individual who struck Mr.

Sweeden during the encounter is totally uncorroborated.

       None of the State’s other witnesses were able to testify that Appellant had any

involvement in the offense. The only evidence provided by the State’s law enformcment

witnesses merely places Appellant in the vicinity of the crime. The State put forward

three law enforcement officers who testified seeing Appellant near the scene of the

robbery. None of the witnesses identified Appellant as being either the man in the

basketball shorts nor the man who was riding the bicycle and wearing the vest with many

pockets. Rather, Appellant, an African-American man, was found in a predominately

black neighborhood (R.R. 3, p. 33), near the items that were deemed to be evidence in the

crime being investigated. None of the State’s witnesses saw Appellant to be wearing the

much talked of vest nor to be in possession of any of the items taken from Mr. Sweeden.

None of the law enforcement officers were able to identify Appellant as riding the bicycle

described by Mr. Sweeden. Sgt. Cantera did say he saw a “silhouette” of an individual,

and after he turned a corner he saw a man, later identified as Appellant, standing beside a

bicycle and a vehicle. Sgt. Cantera then testified he believed the silhouette he saw to be

the same man standing beside the vehicle, however he does not articulate any reasonable

facts for his assumption.

        Our law requires that accomplice testimony must be corroborated before

                                                                                             12
conviction is warranted. Failure to inform the jury of this requirement makes it possible

for rational jurors to convict even absent corroboration which they find convincing. The

court failed to provide sufficient guidance to allow the jury to reliably ascertain the

witnesses’ status and to properly weigh the evidence. Other than the accomplice

testimony, there is no evidence in the record to prove that Appellant had any involvement

in the charged robbery other than being in the vicinity where a crime occurred.

       It is clear that the trial court had a duty to charge the jury regarding accomplice

testimony and it is equally clear the courted failed to do so. The trial court’s error

effectively denied Appellant a fair trial as all evidence connecting defendant to the

offense, other than accomplice testimony, was exceedingly weak.

       For those reasons, the trial court’s error in failing to charge the jury regarding

accomplice testimony caused Appellant egregious harm and Appellant’s conviction

should be reversed.



                             POINT OF ERROR NUMBER TWO

         Appellant received ineffective assistance of trial counsel due to trial counsel’s
         failure to request an accomplice witness instruction in the jury charge.

                                             The Law

       Ineffective assistance of counsel claims are evaluated under the two-part test

formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984) requiring a showing of both deficient performance and

prejudice. To show that trial counsel was ineffective, appellant must demonstrate that: 1)


                                                                                             13
trial counsel’s performance was deficient because it fell below an objective standard of

reasonableness; and 2) a probability sufficient to undermine confidence in the outcome

existed that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. Id. Judicial scrutiny of counsel’s performance must be highly

deferential and that a reviewing court "must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance. Id. Thus "the

defendant must overcome the presumption that, under the circumstances, the challenged

action `might be considered sound trial strategy.'" Id., quoting Michel v. Louisiana, 350

U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). Failure of appellant to make either of

the required showings of deficient performance and sufficient prejudice defeats the claim

of ineffective assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.App.1999)

.A Strickland claim must be "firmly founded in the record" and "the record must

affirmatively demonstrate" the meritorious nature of the claim. Id. at 812. Trial counsel’s

conduct is reviewed with great deference, without the distorting effects of hindsight,

where counsel’s reasons for failing to do something do not appear in the record. Id. at

813. We have said that "trial counsel should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d

107, 111 (Tex.Crim.App.2003). Absent such an opportunity, an appellate court should

not find deficient performance unless the challenged conduct was "so outrageous that no

competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex.

Crim.App.2001), cert. denied, 537 U.S. 1195, 123 S.Ct. 1351, 154 L.Ed.2d 1030 (2003).

                                            Argument

                                                                                            14
       It is clear that Appellant was entitled to a jury charge regarding accomplice

testimony, as Eddie James Dean, Jr. was an accomplice as a matter of law. (see Point of

Error Number One). The record is equally clear that trial counsel failed to request such a

charge. The accomplice witness charge is of such importance to the fair trial of an

accused that it is error not to provide such a charge where one is warranted. Gamez at

322.

       While great deference should be given to the trial strategy by trial counsel, there is

no sound trial strategy that can explain counsel’s failure to request this important

instruction to the jury. The instruction would have properly advised the jury of their

responsibility to find Appellant not guilty, unless the accomplice testimony was

corroborated by other evidence. As outlined in point of error number one, the

corroborating evidence in this case was either wholly lacking, or so weak as to provide no

credible corroboration.

       Had the jury been properly charged, there is a significant probability that the

outcome would have been different in this case. Trial counsel’s unprofessional error is of

such significance as to undermine the confidence in the verdict. But for counsel’s failure

to request the accomplice witness charge, the result of the proceedings would have been

different.

                          POINT OF ERROR NUMBER THREE


     The evidence is legally insufficient to find Appellant guilty of Aggravated
Robbery with a Deadly Weapon.

                                         The Law

                                                                                           15
       In a criminal case, an appellant may raise legal sufficiency for the first time on

appeal. Washington v. State, 127 S.W.3d 197 (Tex. App. Houston [1st Dist. ] 2003, pet.

Dism'd). When reviewing legal sufficiency of the evidence, a court must look at all of

the evidence in the light most favorable to the verdict to determine whether any rational

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

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State,

158 S.W.3d 502 (Tex. Crim. App. 2005). While giving the proper deference to the

factfinder's role, this court must safe guard against the rare occurrence when a factfinder

does not act rationally. Laster v. State, 275 S.W. 3D 512 (Tex. Crim. App. 2009).

                                       Law of Parties

       Under the law of parties, a person may be convicted as a party to an offense if the

offense is committed by his own conduct or by the conduct of another for which he is

criminally responsible. TEX. PEN. CODE § 7.02. The penal code provides two ways by

which a person may be criminally responsible for another’s conduct: (1) by being a “party”

to the offense under section 7.02(a); or (2) by being part of a conspiracy to commit a felony

under section 7.02(b). See id. § 7.02(a), (b).

       Texas Penal Code Section 7.02(a)(2) provides that a person is criminally responsible

for an offense committed by the conduct of another if, acting with intent to promote or

assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to

aid the other person to commit the offense. Id. § 7.02(a)(2). To convict a defendant as a

party to an aggravated offense, the State must prove that the defendant was criminally

responsible for the aggravating element. Wooden v. State, 101 S.W.3d 542, 547–48

                                                                                            16
(Tex.App.-Fort Worth 2003, pet. ref’d) (citing Stephens v. State, 717 S.W.2d 338, 340

(Tex.Crim.App.1986)). The defendant must have, with intent to promote or assist the

aggravated assault, solicited, encouraged, directed, aided, or attempted to aid the other

person in committing the aggravated assault. Id.

       When a legal sufficiency complaint is raised, as an offender convicted as a party,

the evidence will be held sufficient to convict under the law of parties where the defendant

is physically present at the commission of the offense and encourages its commission by

words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994);

Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985). For a conviction to be

upheld, the evidence must show that at the time of the offense, the parties were acting

together, each contributing some part towards the execution of their common purpose.

Brooks v. State, 580 S.W.2d 825, 831 (Tex.Crim.App. [Panel Op.] 1979); Armstead v.

State, 977 S.W.2d 791, 797 (Tex.App.-Fort Worth 1998, pet. ref’d).

       The second way that a person can be criminally responsible for another’s conduct

is found in section 7.02(b), which provides that if, in the attempt to carry out a conspiracy

to commit one felony, another felony is committed by one of the conspirators, all

conspirators are guilty of the felony actually committed, though having no intent to commit

it, if the offense was committed in furtherance of the unlawful purpose and was one that

should have been anticipated as a result of the carrying out of the conspiracy. TEX

PEN.CODE ANN § 7.02(b). The term “conspiracy” is defined as an agreement between

two or more persons, with intent that a felony be committed, that they, or one or more of

them, engage in conduct that would constitute the offense. Id. § 15.02(a).

                                                                                           17
A person’s criminal responsibility for another’s conduct does not extend further than that

which he specifically intended to promote in aiding. Martinez v. State, 763 S.W.2d 413,

425 (Tex. Crim. App. 1988) (evidence of appellant’s plan and aid to commit robbery was

legally insufficient to show his encouragement and intent to commit capital murder); see

also Wooden, 101 S.W.3d at 547–49 (evidence of appellant’s intent to promote or assist

attempted theft as lookout was not legally sufficient to support conviction for subsequent

aggravated assault.)

                                           Argument

      The evidence is insufficient to sustain Appellant’s Aggravated Robbery with a

Deadly Weapon conviction as Appellant did not use or exhibit a deadly weapon, nor did

he encourage, promote or assist in the use of a deadly weapon. The record is devoid of

any evidence to show Appellant had any knowledge that a deadly weapon was present

during the encounter. In fact, the only evidence presented is that Appellant did not have

any prior knowledge that Eddie Dean had a gun or that Mr. Dean would use said gun

during Appellant’s encounter with Mr. Sweeden.

      The State presented Eddie Dean as an accomplice witness against Appellant and

Spencer Sweeden as the victim of the charged offense. Neither witness provided any

evidence that Appellant solicited, encouraged, directed, aided or attempted to aid Eddie

Dean in the use of a deadly weapon during the encounter with Spencer Sweeden. The

State’s own accomplice witness denied there was any plan to commit a robbery.

Appellant never asked Mr. Dean to use a gun, nor did he have any knowledge Mr. Dean

would retrieve a gun from his garage. Therefore, Appellant is not criminally responsible

                                                                                           18
for the actions of Mr. Dean and the evidence is insufficient to find that Appellant used or

exhibited a deadly weapon.

       Viewing the evidence in the light most favorable to the verdict fails to establish

there was a plan or agreement to commit robbery with Eddie Dean, nor to use or exhibit

a deadly weapon. There is no evidence on which the jury could inferred that Appellant

intended to promote or assist in the use of a deadly weapon.

                        Uncorroborated Accomplice Witness Witness

       In Texas, a conviction cannot be had upon the testimony of an accomplice unless

that testimony is corroborated by other evidence tending to connect the defendant with the

offense. Tex.Code Crim. Proc. Ann. art. 38.14 (West 2005). The testimony of an

accomplice witness is inherently untrustworthy and should be received and acted on with

caution because it is “evidence from a corrupt source.”3 Walker v. State, 615 S.W.2d 728,

731 (Tex.Crim.App.1981); Wincott v. State, 59 S.W.3d 691, 698 (Tex.App.-Austin 2001,

pet. ref’d). This accomplice-witness rule creates a statutorily imposed review and is not

derived from federal or state constitutional principles that define the factual and legal

sufficiency standards. Druery at 498 . Thus, to weigh the sufficiency of the corroborative

evidence, a court must disregard the accomplice’s testimony and examine the remaining

portions of the record to ascertain whether there is evidence tending to connect the accused

with the commission of the crime. Solomon v. State, 49 S.W.3d 356, 361

(Tex.Crim.App.2001); Maynard v. State, 166 S.W.3d 403, 410 (Tex.App.-Austin 2005,

pet. ref’d). If the combined weight of the non-accomplice evidence tends to connect the

defendant to the offense, then the requirement of article 38.14 has been fulfilled. Cathey v.

                                                                                           19
State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999). However, evidence that merely proves

that the offense was committed does not suffice. Id.

                                           Argument

       The key witness in the State’s case defining Appellant’s role in the charged

offense was accomplice witness, Eddie Dean. As argued above, while Spencer Sweeden,

the victim named in the State’s indictment, was able to identify Appellant’s face as

someone he recognized, he was never able to identify which one, of the two persons he

described as being involved in the offence, was Appellant. Mr. Sweeden’s identification

was so weak that, without the accomplice testimony, the jury would have no idea whether

Appellant was alleged to be the man who held the gun or the man who hit Mr. Sweeden.

Mr. Sweeden never testified that Appellant hit him. Mr. Dean’s accomplice testimony as

to Appellant being the individual who struck Mr. Sweeden during the encounter is totally

uncorroborated.

       The only other evidence provided by witnesses other than the accomplice and Mr.

Sweeden merely places Appellant in the vicinity of the crime, near items that were

determined to be evidence. None of the State’s law enforcement witnesses observed

Appellant take part in any elements of the offense, neither did said witnesses observe

Appellant in possession of the items taken from Mr. Sweeden. Mr. Sweeden did not

testify that Appellant was the person who took the items from him. Appellant was not

tied to the items taken from Mr. Sweeden by fingerprints or any other type of forensic

analysis. Again, the sole link at trial to Appellant being the individual who took items

from Mr. Sweeden was the uncorroborated testimony of accomplice Dean.

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       The suspect and unreliable testimony of a convicted felon, himself under

indictment for Aggravated Robbery with a Deadly weapon, is an insufficient basis upon

which to predicate a felony conviction. Therefore, Appellant’s conviction is not

supported by the facts presented at trial and should therefore be reserved.



                                PRAYER FOR RELIEF

       For the reasons stated hereinabove, it is respectfully submitted that, upon appellate

review, the Court of Appeals should reverse the judgment of conviction and sentence of

the Trial Court.



                                          Respectfully submitted,



                                           /s/ Jessica Edwards
                                          JESSICA EDWARDS
                                          Attorney for Appellant
                                          Evender Gene Jackson, Jr.
                                          State Bar Number - 24000994
                                          P.O. Box 9318
                                          Greenville, Texas 75404
                                          Telephone Number - (903) 458-9108
                                          Facsimile Number - (903) 200-1359
                                          jessicaedwardslaw@gmail.com



                             CERTIFICATE OF SERVICE

      I certify that a true and correct copy of Appellant's Brief was served on the Hunt
County District Attorney's Office through the efiletexas website on December 1, 2015.



                                                                                           21
                                                 /s/ Jessica Edwards
                                                 Jessica Edwards



                             CERTIFICATE OF SERVICE

      I certify that a true and correct copy of Appellant's Brief was delivered to
Appellant via certified mail to the Telford Unit; TDCJ-ID on December 2, 2015



                                                 /s/ Jessica Edwards
                                                 Jessica Edwards


                         CERTIFICATE OF COMPLIANCE

       I certify that Appellant's Brief is written in Times New Roman font in 13 point
text. Appellant's brief has 4929 words according to the word count feature on the
undersigned attorneys word processing program.



                                                 /s/ Jessica Edwards
                                                 Jessica Edwards




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