                                                                                        ACCEPTED
                                                                                   06-14-00088-CR
                                                                         SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                            12/22/2014 11:47:48 PM
                                                                                   DEBBIE AUTREY
                                                                                            CLERK

                 NOS. 06-14-00088-CR, 06-14-00089-CR,

                    06-14-00091-CR, 06-14-00092-CR  FILED IN
                                             6th COURT OF APPEALS
                                               TEXARKANA, TEXAS
___________________________________________________________
                                             12/30/2014 1:59:00 PM
                                                  DEBBIE AUTREY
          IN THE COURT OF APPEALS SIXTH DISTRICT Clerk

                    AT TEXARKANA, TEXAS
____________________________________________________________
             SAMUEL DELEON GARZA, APPELLANT

                                    V.

                   THE STATE OF TEXAS, APPELLEE

____________________________________________________________

         APPEAL IN CAUSE NUMBERs 28,996, 28,997, 28,999,

                               AND 29,016

               IN THE 196TH JUDICIAL DISTRICT COURT

                       OF HUNT COUNTY, TEXAS

____________________________________________________________

                    BRIEF FOR APPELLANT
____________________________________________________________
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 convictions to be overturned.

     Appellant Requests Oral Argument
                 IDENTITY OF PARTIES AND COUNSEL

Appellant’s Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403-0011

Appellant’s Trial Attorney:
Chris Castanon
P.O. Box 851266
Mesquite, Texas 75149

Appellee:
The State of Texas by and through
Noble Walker
Hunt County District Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401

Appellee’s Trial Counsel:
G. Calvin Grogen, V
Hunt County District Attorney’s Office
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401




                                                   2
                                    TABLE OF CONTENTS



Identity of the Parties and Counsel ............................................................. 2

Table of Contents ....................................................................................... 3

Index of Authorities ..................................................................................... 4

Statement of the Case ................................................................................ 6

Issues Presented ........................................................................................ 7

Statement of the Facts ................................................................................ 8

Summary of the Argument .......................................................................... 9

Argument and Authorities ......................................................................... 10

        Issue Number One ......................................................................... 10
        The evidence is legally insufficient to prove beyond reasonable
        doubt, that Appellant and the victim were in a ‘dating
        relationship” in these cases.



Prayer for relief ........................................................................................ 16

Certificate of compliance of typeface and Word Count ............................. 17

Certificate of Service ................................................................................. 18




                                                                                                           3
                                     INDEX OF AUTHORITIES

FEDERAL CASES:

Jackson v. Virginia, 443 U.S. 307. ............................................................ 10

STATE CASES:

Ates v. State, 644 S.W.2d 843 (Tex.App.1982)......................................... 14

Gross v. State, 380 S.W.3d 181 (Tex.Crim.App.2012).. ............................ 14

Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App.2007) .......................... 14

Laster v. State, 275 S.W. 3d 512 (Tex. Crim. App. 2009) ......................... 10

Johnson v. State 673 SW. 2d 190 (Tex. Crim. App. 1984) ........................ 14

Louis v. State, 159S.W.3d 236(Tex. App.—Beaumont 2005, pet.ref'd) ..... 13

Navarro v.State, 810 S.W.2d 432                           (Tex. App.—San Antonio 1991, pet.

refd) .......................................................................................................... 13

Reedy v. State, 214 S.W. 3d 567 (Tex. App.—Austin 2006) ..................... 13

Shelton v. State, 795 S.W.2d 162, 167 (Tex.Crim.App.1989). .................. 13

Urbano v. State, 837 S.W.2d 114, 116 (Tex.Crim.App. 1992). .................. 13

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

pet. dism’d). .............................................................................................. 10




                                                                                                                 4
STATE STATUTES:

Tex. Penal Code Ann. § 22.01(a)(1) (Casemaker 2014) ........................... 10

Tex. Fam. Code Ann. § 71.0021(b)&(c) (Casemaker 2014) ...................... 11




                                                                                5
                       STATEMENT OF THE CASE



     This is an appeal of the judgments and sentences in a criminal case

for the 196th Judicial District, in Hunt County, Texas. Appellant was

convicted of Assault Family/Household Member W/ Prev Conv 28,996,

Assault Family/Household Member W/ Prev Conv 28,997, Assault

Family/Household Member W/ Prev Conv in 28,999, Assault

Family/Household Member W/ Prev Conv in 29,016.

     Appellant was assessed a sentence of 40 years 28,996, 52 years in

28,997, 45 years in 29,016, 80 in 29,017.




                                                                           6
                        ISSUES PRESENTED


Issue One:      The evidence is legally insufficient to prove beyond
     reasonable doubt, that Appellant and the Victim have a dating
     relationship.




                                                                       7
                       STATEMENT OF THE FACTS


      Maria Ulloa stated that she first met appellant in December of 2012.

(RR Vol. 4 p. 94). Appellant got to know Ulloa because he had requested

to see a truck she was selling. Ulloa testified that she was married to a

man, other than the Appellant named Felipe Arreola, who was the father of

her son. (RR Vol. 4. P. 95). Another man, Juan Arzola was the father of

her other two children. (RR Vol. 4 p.95-96). Ulloa stated that Appellant

would use her vehicle because he did not have his own, but would also use

other people’s as well. (RR Vol. 4 p.107). Ulloa, testified that Appellant

assaulted her on February 2nd and 4th of 2013. (RR Vol. 4 p. 102), (RR Vol.

4 p. 108- 114).




                                                                             8
                      SUMMARY OF THE ARGUMENT

Issue One:     The evidence is legally insufficient to prove beyond
reasonable doubt, that Appellant committed Injury.

      The evidence presented at trial could not have led a rational jury to

find that Appellant and the victim were in a dating relationship a defined by

the Texas Family Code. Concluding so, based on the evidence presented

at trial, would have been speculation or suspicion by the factfinder. Thus,

the evidence is legally insufficient to convict Appellant in this case.




                                                                                9
                                 ARGUMENT


       Issue One: The evidence is legally insufficient to support

                        the conviction of Appellant

      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; 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 safeguard against the rare

occurrence when a factfinder does not act rationally. Laster v. State, 275

S.W. 3d 512 (Tex. Crim. App. 2009).

      In this case Appellant was charged Assault, Family Violence in each

cause. (CR Vol. 1 p. 11). Under the Texas Penal Code, " [a] person

commits an offense [of assault] if the person ... intentionally, knowingly, or

recklessly, causes bodily injury to another...." Tex. Penal Code Ann. §

22.01(a)(1) (Casemaker 2014).




                                                                              10
     An assault becomes a felony in the third degree if at trial it is shown

that the offence is committed against a person whose relationship to or

association with the defendant is described in Section 71.0021(b). Tex.

Penal Code Ann. § 22.01(b) (Casemaker 2014).

     A dating relationship means a relationship between individuals who

have or have had a continuing relationship of romantic or intimate nature.

The existence of such a relationship; shall be determined based on

consideration of:

      (1) The length of the relationship;
      (2) The nature of the relationship; and
      (3) The frequency and type of interaction between the persons
          involved in the relationship.
      (4)
Tex. Fam. Code Ann. § 71.0021(b) (Casemaker 2014).

     A casual acquaintanceship or ordinary fraternization in a business or

social context does not constitute a “dating relationship” under Subsection

(b). Tex. Fam. Code Ann. § 71.0021(c) (Casemaker 2014).

     Based on the evidence at trial the Appellant and Ulloa had no more

than ordinary fraternization or acquaintanceship.



     The length of the relationship

     Here Ulloa testified that she first got to know the Appellant in

December and after the incident on February 5, 2013 she did not see him

                                                                               11
again until April 7, 2013. The length of their acquaintance lasted no more

than a mere month and a half to two months.



      The nature of the relationship

      Ulloa described her interactions with appellant to be not much more

visits at her house. Appellant’s interactions amounted to little more than

that he would visit her home and eat dinner that she had cooked. (RR Vol.

4 p. 152). It is true that she testified he stayed the evening, but it was

never more than a few days and Appellant never had a key to her home.

(RR Vol. 4 p. 98). In fact ,at the time Appellant and Ulloa knew each other,

Appellant did not have a job. (RR Vol. 4 p. 97). There is never a clear

indication that Appellant had his own place to stay and he relied on others

for transportation. (RR Vol. 4 p. 107)

      Ulloa does not testify clearly that she had an intimate relationship with

Appellant. At best the evidence showed that Appellant stayed with Ulloa

because he was homeless, and did not have means to support himself.




                                                                             12
      The frequency and type of interaction between the persons

involved in the relationship

      Again, Ulloa testified that Appellant stayed at her home no more than

three times a week and even kept belongings at her house. (RR Vol. 4 p.

97). The evidence does not support more than Ulloa and Appellant staying

and eating occasionally for a few months.

      Proof that amounts to only a strong suspicion of guilt or a mere

probability of guilt is insufficient to sustain a conviction. Urbano v. State,

837 S.W.2d 114, 116 (Tex.Crim.App. 1992); Navarro v.State, 810 S.W.2d

432, 435 (Tex. App.—San Antonio 1991, pet. refd).

      If circumstantial evidence provides no more than a suspicion, the jury

is not permitted to reach a speculative conclusion. Louis v. State,

159S.W.3d 236, 246 (Tex. App.—Beaumont 2005, pet.ref'd). It is the

function of appellate courts to ensure that no one is convicted of a crime

except upon proof beyond a reasonable doubt. Shelton v. State, 795

S.W.2d 162, 167 (Tex.Crim.App.1989). Due process requires no less.

Reedy v. State, 214 S.W. 3d 567 (Tex. App.—Austin 2006).

      In this case the State did not prove beyond a reasonable doubt that

Defendant and the victim were in a “dating relationship.” At most the




                                                                                 13
evidence shows that Appellant and the victim had a casual

acquaintanceship, either in social context or even charity.

      "It is a well-recognized principle of law in this State that, to sustain a

conviction, it should appear not only that an offense as charged has been

committed but there should also be proof to a degree of certainty greater

than a mere probability of strong suspicion tending to establish that the

party charged was the person who committed or was a participant in its

commission. There must be legal and competent evidence pertinently

identifying the defendant with the transaction constituting the offense

charged against him." Ates v. State, 644 S.W.2d 843 (Tex.App.1982);

Johnson v. State 673 SW. 2d 190 Tex. Crim. App. 1984).

      Again, even if the fact finder accepts that the Appellant saw each

other on a regular basis for a short time, based on the testimony of Ulloa

there is simply no evidence that she and the Appellant were in a “dating

relationship” defined under the code.

      Juries are permitted to draw reasonable inferences from the

evidence, but they are not permitted to draw conclusions based on

speculation. Gross v. State, 380 S.W.3d 181 (Tex.Crim.App.2012); Hooper

v. State, 214 S.W.3d 9, 15 (Tex.Crim.App.2007). Speculation is the mere




                                                                                   14
theorizing or guessing about the possible meaning of the facts and

evidence presented Id. at 16.

      Other witnesses, witnesses do not add evidence that Appellant was a

party beyond a reasonable doubt. It would only be theorizing or guessing

about the possible meaning of the facts and evidence presented to

conclude that Appellant and Ulloa were in a dating relationship.

      In this case, there was no testimony or evidence brought at trial that a

rational jury could have found beyond a reasonable doubt that Appellant

and Ulloa were in a dating relationship. Concluding so, based on the

evidence presented at trial, would have been speculation or suspicion by

the factfinder. Thus, the evidence is legally insufficient as indicted and with

the evidence presented at trial. At most, Appellant should have been

charged with Class A misdemeanors in these causes.




                                                                             15
                           PRAYER FOR RELIEF

      Wherefore, premises considered, Appellant respectfully prays that his

conviction in the above entitled and numbered cause be reversed and

acquit him. Appellant further prays for all other lawful relief to which he

may be entitled, at law or in equity.

                                                 Respectfully submitted,




                                                 _____/s/ Jason A. Duff____
                                                 Jason A. Duff
                                                 State Bar No. 24059696
                                                 2615 Lee Street
                                                 P.O. Box 11
                                                 Greenville, TX 75403-0011
                                                 Attorney for the Appellant




                                                                              16
 CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

      In accordance with Texas Rules of Appellate Procedure 9.4 (e) and

(i), the undersigned attorney or record certifies that Appellants Brief

contains 14-point typeface of the body of the brief, 12-point typeface for

footnotes in the brief and contains 1,362 words, excluding those words

identified as not being counted in appellate rule of procedure 9.4(i)(1), and

was prepared on Microsoft Word 2010.



_____/s/ Jason A. Duff____
Jason A. Duff
Attorney for the Appellant




                                                                             17
                      CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the above and

foregoing instrument was forwarded to Hunt County District Attorney Noble

Walker, P.O. Box, 1097, Greenville, Texas 75403, and the Court of

Appeals on this the 22nd day of December 2014, by Electronic Filing

Service.




                                              _____/s/ Jason A. Duff____
                                                             Jason A. Duff
                                                 Attorney for the Appellant




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