                                                                          ACCEPTED
                                                                      12-15-00224-CR
                                                         TWELFTH COURT OF APPEALS
                                                                       TYLER, TEXAS
                                                                11/2/2015 12:00:00 AM
                                                                            Pam Estes
                                                                               CLERK

                                       No oral argument requested
        CASE NO. 12-15-00224-CR
                                                     RECEIVED IN
                 IN THE                        12th COURT OF APPEALS
                                                    TYLER, TEXAS
                                               10/31/2015 3:33:19 PM
     TWELFTH COURT OF APPEALS
                                                      PAM ESTES
                                                        Clerk
            TYLER, TEXAS

    _______________________________

FREDRICK HARRIS STRALOW, Appellant
                 vs.
     THE STATE OF TEXAS, Appellee
   _______________________________

           On Appeal from the
        County Court at Law No. 2
         Henderson County, Texas

    (Trial Court Case Number: 2014-0626CL2)

Honorable Nancy Adams Perryman, Judge Presiding


    AMENDED BRIEF OF APPELLANT


                Linda A. Altier
               Altier Law Offices
               1527 E. Fifth St.
               Tyler, Texas 75701
               Tel: 903-595-4232
               Fax: 903-595-0031
          e-mail: altierlaw@gmail.com
        State Bar of Texas No.: 00783541

    Attorney for Appellant, Fredrick Harris Stralow
                   IDENTITIES OF PARTIES AND COUNSEL

State of Texas, Appellee
Prosecutor in Trial Court

Mr. Fredrick Harris Stralow, Appellant
Defendant in Trial Court

TRIAL COURT COUNSEL

Mr. Bill C. Stephens, Attorney for Defendant
433 North Gun Barrel Lane
Gun Barrel, Texas 75156-3731

Mr. Barry Lee Spencer, Jr., Attorney for State
100 E. Tyler St., Room 100
Athens, Texas 75751

Mr. Daniel Barnes, Attorney for State
100 E. Tyler St., Room 100
Athens, Texas 75751


APPELLATE COUNSEL

Ms. Linda Altier, Attorney for Appellant
1527 E. Fifth St.
Tyler, Texas 75701

Mr. Barry Lee Spencer, Attorney for State
100 E. Tyler St., Room 100
Athens, Texas 75751




                                        i
                                       TABLE OF CONTENTS

Identity of Parties and Counsel ……………………………………………………i

Index of Authorities ………………………………………………………………iii

Statement of the Case ……………………………………………………………..2

Statement of the Jurisdiction . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 2

Issues Presented ……………………………………………………………………3

        POINT OF ERROR:

THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO
REJECT APPELLANT’S SELF-DEFENSE PLEA AND SUPPORT THE JURY’S
FINDING OF GUILT.

Statement of Facts ………..……………………………………………………….3

Point of Error Restated….. …………………………………..……………………3

Summary of the Argument .………………………………………………………..3

Argument and Authority ..………………………………………………………….4

Certificate of Service.………………………………………………………………6

Certificate of Compliance…..………………………………………………………7




                                                     ii
                          INDEX OF AUTHORITIES

CASES:                                                                         Page

Jackson v. Virginia, 443 U.S. 307; 99 S.Ct. 2781. . .…………….……………….5

Smith v. State, 355 S.W.3d 138(Tex.App-Houston [1st Dist.] 2011, pet.ref’d) . . . .5

Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App.2003)…………………………. .4



STATUTES AND RULES:

Texas Penal Code Ann. §9.31 (a). . . . . . . . . . . . . . . .….…………………… . . . 4




                                       iii
                      CASE NO. 12-15-00224-CR

                                IN THE

                   TWELFTH COURT OF APPEALS

                          TYLER, TEXAS

                  _______________________________

              FREDRICK HARRIS STRALOW, Appellant
                               vs.
                   THE STATE OF TEXAS, Appellee
                 _______________________________

                        On Appeal from the
                     County Court at Law No. 2
                      Henderson County, Texas

                  (Trial Court Case Number: 2014-0626CL2)

             Honorable Nancy Adams Perryman, Judge Presiding


                  AMENDED BRIEF OF APPELLANT


TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW FREDRICK HARRIS STRALOW, hereinafter

sometimes referred to as Appellant, and submits this his Amended Brief on Appeal

in the above entitled and numbered Cause, pursuant to the provisions of the Texas

Rules of Appellate Procedure. Appellant hereby waives oral argument.



                                     1
                         STATEMENT OF THE CASE

      On October 1, 2014, Mr. Fredrick Harris Stralow, hereinafter sometimes

referred to as Appellant, was charged by Complaint and Information with Assault

Causing Bodily Injury to a Family Member (CR 1:1-2). On May 11, 2015, a jury

found Appellant guilty as charged in the Information (CR 1:38). On July 22, 2015

the Court sentenced Appellant to three hundred sixty five (365) days confinement

in the Henderson County Justice Center probated for twenty four (24) months

community supervision, with special conditions of twenty (20) days in jail to be

completed on weekends (CR 1:44-48). Appellant filed his Notice of Appeal on

August 27, 2015 (CR 1:68).

                         STATEMENT OF JURISDICTION

      Therefore, the Twelfth Court of Appeals holds jurisdiction.




Note:        For purposes of this Appeal Brief, all references to the Clerk’s Record
will be noted as “CR,” followed by the volume number and page number.
References to the Reporter’s Record will be noted as “RR,” followed by the
volume number, page number and line as necessary. Any emphasis added by this
writer will be noted as same immediately following the word or phrase emphasized
by italics. Where two or more points of error involve the same facts, they will be
combined and argued together as permitted by the Texas Rules of Appellate
Procedure.

                                      2
                         ISSUES PRESENTED

      POINT OF ERROR:

THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO
REJECT APPELLANT’S SELF-DEFENSE PLEA AND SUPPORT THE JURY’S
FINDING OF GUILT.
                   STATEMENT OF FACTS

            Fredrick Harris Stralow was convicted of Assault Causing Bodily

Injury to a Family Member in a trial by jury involving an altercation with his 24

year old sister, Stephanie Nicole Duggan. Appellant, Mr. Stralow, plead

self-defense against Ms. Duggan’s aggression against him. Ms. Duggan testified

she yelled and cursed at Mr. Stralow for bringing to her attention the mess her

eleven month old child had caused. She further testified that her actions escalated

the situation when she pushed Mr. Stralow with her hands around his neck. Mr.

Stralow testified the choke was hard enough to make him stop breathing and at this

point he struck her in self-defense. The State did not provide the jury with any

evidence to disprove Appellant’s self-defense plea.

      POINT OF ERROR (Restated):

THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO
REJECT APPELLANT’S SELF-DEFENSE PLEA AND SUPPORT THE JURY’S
FINDING OF GUILT.

                   SUMMARY OF THE ARGUMENT

      The evidence presented at trial was factually and legally insufficient for a

                                       3
jury to find beyond a reasonable doubt that Appellant was guilty. Appellant

contends that the evidence the State presented at trial was insufficient to support

the jury’s rejection of his self-defense claim.

                           ARGUMENT AND AUTHORITY

       Appellant argues that the evidence at trial showed that he was justified in

defending himself when Ms. Stephanie Duggan choked him on October 1, 2014.

Tex. Penal Code Ann. § 9.31 (a) states in part, “A person is justified in using force

against another when and to the degree the actor reasonable believes the force is

immediately necessary to protect the actor against the other’s use or attempted use

of unlawful force.” Appellant met his burden to produce evidence in support of

his claim of self-defense by the following testimony: Ms. Stephanie Duggan

testified that she escalated the argument when she yelled and cursed at Appellant

(RR 2:66) and put her hands on his throat and pushed him (RR 2:83). Appellant

testified that Ms. Duggan choked him so hard that it hurt and it was hard enough to

make him stop breathing (RR 2:125). Appellant admitted that when Ms. Duggan

grabbed him by the throat with both hands, he at that time reached over and hit her

one time (RR 2:116). The State failed to provide the jury with controverting

evidence to dispute Appellant’s self-defense. In Zuliani v. State, 97 S.W.3d 589

(Tex.Crim.App.2003), Defendant Zuliani was convicted of a misdemeanor assault

                                        4
      causing bodily injury and Zuliani plead self-defense. The facts are identical

to Appellant’s, i.e. an argument escalated into a physical confrontation. The Court

of Appeals affirmed the Trial Court’s finding of guilt. However, the Court of

Criminal Appeals reversed and remanded the case for review based on the lack of

the State’s evidence to support the jury’s rejection of Appellant’s self-defense plea.

Smith v. State, 355 S.W.3d 138 (Tex.App-Houston [1st Dist.] 2011, pet.ref’d) holds

that the State carries the burden of persuasion to disprove self-defense beyond a

reasonable doubt and the review of challenge to the sufficiency of the evidence

supporting a jury’s rejection of a claim of self-defense should only be under the

Jackson standard.

      Jackson v. Virginia, 443 U.S. 307; 99 S.Ct. 2781, is the holding case and the

final test for establishing the legal sufficiency of the evidence and the burden is on

the State to prove each element of the criminal offense. Appellant argues that the

evidence is legally insufficient to disprove his plea of self-defense. The only

evidence that the State presented to the jury for consideration in Appellant’s

self-defense plea was in the State’s final argument: “Y’all saw the injuries. Y’all

saw Stephanie. No red marks on him. Oh, she choked me so hard I couldn’t

breathe. Bull.” (RR 2:151;L 16-18)

      Accordingly, this case should be remanded.

                                       5
                                PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

this Honorable Court hold that the evidence was insufficient for the jury to find

Appellant guilty and reject his self-defense plea. Appellant prays that this case be

remanded to the Henderson County Court at Law #2.

                                             Respectfully Submitted,

                                             ALTIER LAW OFFICES
                                             1527 E. Fifth St.
                                             Tyler, Texas 75701
                                             Tel: 903-595-4232
                                             Fax: 903-595-0031
                                             altierlaw@gmail.com


                                             By: /s/ Linda A. Altier
                                             TSBN: 00783541
                                             Attorney for Appellant
                                             Fredrick Harris Stralow




                         CERTIFICATE OF SERVICE

             The undersigned hereby certifies that a true and correct copy of the
foregoing Amended Appellant’s Brief has been served on Barry L. Spencer,
Attorney for the State, Henderson County Assistant County Attorney, 100 E. Tyler
St., Room 100, Athens, Texas, by e-mail to barryspencer@co.henderson.tx.us , on
October 31, 2015.

                                             /s/ Linda A. Altier


                                      6
                         CERTIFICATE OF COMPLIANCE

              In compliance with TRAP 9.4(i), the undersigned hereby certifies that
the number of words contained in the above Amended Brief of Appellant are 694;
excluding caption, identity of parties and counsel, statement regarding oral
argument, table of contents, index of authorities, statement of the case, statement
of issues presented, statement of jurisdiction, signature, proof of service,
certification, and certificate of compliance.


                                            /s/ Linda A. Altier




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