                                                                                  ACCEPTED
                                                                             07-15-00180-CR
                                                                SEVENTH COURT OF APPEALS
                                                                          AMARILLO, TEXAS
                                                                       11/9/2015 11:10:16 PM
                                                                            Vivian Long, Clerk

                    No. 07-15-00180-CR

                           In The
               Court of Appeals
                                                          FILED IN
                                                   7th COURT OF APPEALS
                                                       AMARILLO, TEXAS
            Seventh District of Texas              11/9/2015 11:10:16 PM
                      Amarillo, Texas                    VIVIAN LONG
                                                            CLERK

                    WILLIAM COLLINS,
                                  Appellant,

                        ---versus---

                  THE STATE OF TEXAS,
                                  Appellee.

           On Appeal from Cause No. 2013-400,381
In the 364th Judicial District Court of Lubbock County, Texas
        The Honorable William R. Eichman Presiding


 APPELLANT’S OPENING BRIEF ON THE MERITS



                                    Allison Clayton
                                    State Bar No. 24059587
                                    Law Office of Allison Clayton
                                    P.O. Box 64752
                                    Lubbock, Texas 79464
                                    (806) 773-6889
                                    Fax (888) 688-4515
                                    Allison@AllisonClaytonLaw.com

                                    Attorney for Appellant

                ORAL ARGUMENT REQUESTED
                    IDENTITY OF PARTIES AND COUNSEL

      Pursuant to TEX. R. APP. P. 38.1(a), the following is a complete list of the

names of the parties and their counsel.


               P ARTIES                                     C OUNSEL


          WILLIAM COLLINS                                 Trial Counsel
        Defendant / Appellant                           Matthew Hawkins
                                                Shackelford, Hawkins & Associates
                                                       1402 Texas Avenue
                                                     Lubbock, Texas 79401

                                                      Appellate Counsel
                                                        Allison Clayton
                                                       The Law Office of
                                                       B. Allison Clayton
                                                        P.O. Box 64752
                                                   Lubbock, Texas 79464-4752


         THE STATE OF TEXAS                               Trial Counsel
        Prosecution / Appellee                              Sean Long
                                                         Aaron Moncibaiz
                                                   Assistant District Attorneys
                                                         P.O. Box 10536
                                                   Lubbock, Texas 79408-3536

                                                       Appellate Counsel
                                                         Jeffrey S. Ford
                                                   Assistant District Attorney
                                                         P.O. Box 10536
                                                   Lubbock, Texas 79408-3536




                                          -i-
                                          TABLE OF CONTENTS

Identity of Parties and Counsel ........................................................................ i

Table of Contents ............................................................................................ ii

Index of Authorities....................................................................................... iii

Statement of the Case .................................................................................... vi

Issues Presented............................................................................................ vii

Statement of Facts .......................................................................................... 2

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

Argument ..................................................................................................... 10

      I.       THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY’S FINDING THAT
               BILL ACTED IN RETALIATION ............................................................ 10

                A. Determining the Sufficiency of the Evidence
                   Establishing Retaliatory Intent .............................................. 10

                B.    The Evidence is Insufficient to Establish Bill
                      Acted with Retaliatory Intent ............................................... 13
                      1. The Evidence Failed to Establish Bill Knew Olda
                         Reported Him to be the Robber ...................................... 13
                      2. The Evidence Failed to Establish Bill Robbed Juan.......... 15
                      3. The Evidence Otherwise Failed to
                         Prove Retaliatory Intent ................................................. 16

           II. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY’S FINDING THAT
               BILL USED A DEADLY WEAPON ....................................................... 17

Prayer .......................................................................................................... 22

Certificates.................................................................................................... 23


                                                       - ii -
                                INDEX OF AUTHORITIES
                                             CASES

Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010) ..................................................... 10

Brown v. State,
  No. AP-77,019, 2015 WL 5453765 (Tex. Crim. App. Sept. 16, 2015) ...... 11, 14

Cada v. State,
  334 S.W.3d 766 (Tex. Crim. App. 2011) ..................................................... 10

Carlson v. State,
  940 S.W.2d 776 (Tex. App.—Austin 1997, pet. ref’d) ................................. 19

Clark v. State,
  886 S.W.2d 844 (Tex. App.—Eastland 1994, no pet.)................................. 20

Denham v. State,
  574 S.W.2d 129 (Tex. Crim. App. 1978) ..................................................... 17

Garcia v. State,
  919 S.W.2d 370 (Tex. Crim. App. 1994) ..................................................... 10

Gibson v. State,
   Nos. 07-13-00412-CR, 07-13-00413-CR, 2014 WL 4197529
  (Tex. App.—Amarillo Aug. 25, 2014, pet. ref’d) ......................................... 18

Guevara v. State,
  152 S.W.3d 45 (Tex. Crim. App. 2004) ....................................................... 11

Helleson v. State,
  5 S.W.3d 393 (Tex. App.—Fort Worth 1999, pet. ref'd) ........................ 12, 14

Hemphill v. State,
  No. 08-03-00054-CR, 2004 WL 722247
 (Tex. App.—El Paso Apr. 1, 2004, pet. ref'd) ......................................... 18, 20



                                              - iii -
                                 INDEX OF AUTHORITIES
                                             CASES

Herrera v. State,
  915 S.W.2d 94 (Tex. App.—San Antonio 1996, no pet.) ............................. 12

In re B.P.H.,
  83 S.W.3d 400 (Tex. App.—Fort Worth 2002, no pet.) .............................. 12

In re E.P.,
  257 S.W.3d 523 (Tex. App.—Dallas 2008, no pet.) ................................ 16, 17

In re K.H.,
  169 S.W.3d 459 (Tex. App.—Texarkana 2005, no pet.) .............................. 15

Jackson v. Virginia,
  443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) .................................... 10

Lane v. State,
  151 S.W.3d 188 (Tex. Crim. App. 2004) ..................................................... 19

Moore v. State,
  No. 10-08-00211-CR, 2009 WL 1886450
 (Tex. App.—Waco July 1, 2009, pet. ref’d) ................................................ 18

Ortiz v. State,
  93 S.W.3d 79 (Tex. Crim. App. 2002) ......................................................... 14

Powell v. State,
  939 S.W.2d 713 (Tex. App.—El Paso 1997, no pet.)................................... 19

Raybon v. State,
  No. 02-12-00071-CR, 2013 WL 4129126
 (Tex. App.—Fort Worth Aug. 15, 2013, pet. dsms’d).................................. 12

Riley v. State,
  965 S.W.2d 1 (Tex. App.—Houston [1st Dist.], pet. ref’d) ...................passim

Thomas v. State,
  821 S.W.2d 616 (Tex. Crim. App. 1991) ..................................................... 18


                                              - iv -
                                     INDEX OF AUTHORITIES
                                                   CASES

Tucker v. State,
  274 S.W.3d 688 (Tex. Crim. App. 2008) ..................................................... 17

Turner v. State,
  664 S.W.2d 86 (Tex. Crim. App. 1983) .................................................. 18, 21

Villarreal v. State,
  255 S.W.3d 205 (Tex. App.—Waco 2008, no pet.) ................................. 18, 21

Winfrey v. State,
 393 S.W.3d 763 (Tex. Crim. App. 2013) ..................................................... 16


                                                STATUTES

TEX. GOV’T CODE ANN. § 311.023 .................................................................. 11

TEX. PEN. CODE ANN. § 1.07(17)(B) ............................................................... 17

TEX. PEN. CODE ANN. § 12.42(d)..................................................................... vi

TEX. PEN. CODE ANN. § 22.02(b)(2)(C) .......................................................vi, 11

TEX. R. APP. P. 38.1(a) .................................................................................... i




                                                    -v-
                              STATEMENT OF THE CASE

    Nature             This is an appeal from a conviction for aggravated assault-
    of the
    Case               retaliation and the resultant ninety-nine-year sentence.

    Trial Court        The Honorable William Eichman, presiding judge of the

                       364th Judicial District Court of Lubbock County, Texas.

    Course of the     On April 1, 2015, a jury convicted Appellant William
    Proceedings
    and               Collins of the first-degree felony of aggravated assault, done
    The Trial Court’s
    Disposition       with a deadly weapon (Appellant’s foot) and done in
    of the Case
                      retaliation. TEX. PEN. CODE ANN. § 22.02(b)(2)(C); (6 RR

                       147; CR 67). 1 Mr. Collins pled true to two prior felony

                       convictions, and the jury assessed his punishment at

                       confinement for a term of ninety-nine years. TEX. PEN.

                       CODE ANN. § 12.42(d); (7 RR 42,78). Appellant filed a

                       Motion for New Trial on April 6, 2015, followed by a Notice

                       of Appeal on April 22, 2015.




1 The record in this case consists of one volume of the Clerk’s Record and ten volumes of the
Reporter’s Record. Throughout this brief, the Clerk’s Record is cited as “CR” followed by the
pertinent page number. The Reporter’s Record is cited as “RR,” with the volume of the record
preceding “RR” and the pertinent page number of the record following “RR.” For example,
“6 RR 149” references the sixth volume of the Reporter’s Record at page 149.


                                            - vi -
                            ISSUES PRESENTED

                                      I.
   Is the evidence establishing Appellant acted in retaliation insufficient?


                                      II.
Is the evidence establishing Appellant used a deadly weapon during the course
                           of an assault insufficient?




                                     - vii -
                              No. 07-15-00180-CR

                                     In The
                           Court of Appeals
                        Seventh District of Texas
                                Amarillo, Texas


                              WILLIAM COLLINS,
                                            Appellant,

                                  ---versus---

                            THE STATE OF TEXAS,
                                            Appellee.


                   On Appeal from Cause No. 2013-400,381
        In the 364th Judicial District Court of Lubbock County, Texas
                The Honorable William R. Eichman Presiding



          APPELLANT’S OPENING BRIEF ON THE MERITS



TO THE HONORABLE COURT OF APPEALS:

      WILLIAM COLLINS, Appellant in docket number 07-15-00180-CR, submits

this Opening Brief on the Merits in support of his request to reverse the Judgment

entered in cause number 2013-400,381 out of the 364th Judicial District Court

and remand the case for further proceedings in the court below.



                                       -1-
                                 STATEMENT OF FACTS

       Juan Bazaldua was putting up groceries in his apartment when, out of

nowhere, an unknown assailant attacked him. (5 RR 10). The assailant, using

Juan’s own cane, hit Juan in the back and waist before taking Juan’s money and

running away. (Id.). Juan did not know his attacker; he had never seen him

before that day. (Id. 13, 17). All Juan knew was the attacker was wearing a red

shirt with matching red pants. 2 (Id. 18).

       Even though Juan could have recognized the attacker (id. 13), police never

provided Juan with a photo lineup (id. 22). In fact, the police never contacted

Juan in an effort to take his statement or otherwise investigate Juan’s

recollection of the incident. (Id. 22-23).

       After the attacker left, Juan went outside for help. (Id. 19). Juan’s

neighbor, Olda Dean Lewis, was just coming out of the shower. (Id. 211). Even

though he had not seen anything relating to the robbery, when Olda Dean saw

Juan he knew something was wrong. (Id. 211; 216-17). Olda Dean went outside

to see if he could help Juan. (Id.).



       2 Video surveillance at Juan’s apartment complex recorded a person dressed in all red
running away from the area of Juan’s apartment at about the time of the robbery. (State’s
Ex. 4). Unfortunately, the recording is very pixilated. It is impossible to glean much about
the assailant from the video, other than the person was wearing all red. (State’s Ex. 4 at 0:20-
0:31, 1:22-1:28).


                                             -2-
      Because he speaks broken English, Juan had difficulty communicating

with Olda Dean about what had just happened. (Id. 19). Olda Dean managed

to figure out the gist of what Juan was trying to convey, even though Juan

himself “didn’t know what to say or how to say it.” (Id. 19). When Olda Dean

asked who the attacker was, Juan got out a notepad and pointed to a red mark

on the pad. (Id. 211). Juan told Olda Dean, “this color, clothes.” (Id.).

      Earlier that day, Olda Dean had visited with William “Bill” Collins. (Id.

210). When Juan indicated red was “this color, clothes,” Olda Dean recalled

“that morning [Bill] had on some red.” (Id. 211). At that point, Olda Dean

“knew” it was Bill. (Id.). Olda Dean’s moment of revelation actually came

during his 911 call. After Juan communicated the attacker was wearing red, Olda

Dean said, “ok, he said the dude had red. I know who he is . . . He had all red on.

Red top, red bottom.” (State’s Ex. 1 4:00-4:15). The operator then asked

whether the attacker was Black, White, or Hispanic. (Id. at 4:15). Without

hesitation or pausing to check with Juan, Olda Dean replies, “He’s Black.” (Id.

4:18). Olda Dean went on to explain, “I know who he is. They call him Honey.”

(Id. 4:33). Olda Dean did not personally see any part of the incident. (5 RR 216-

17). He concluded because he had not seen anyone else wearing red that day, it

must have been “Honey.” (Id. 217).



                                       -3-
      Olda Dean told police “everything [he] knew.” (Id. 217). Police took the

alias “Honey” and put it into the police department’s name database, which is a

compilation of known aliases and other contact information of included persons.

(Id. 68-69). The database only contained one file with the moniker “Honey” –

the file for Bill Collins, who goes by “Honey Nut.” (Id. 69, 133; State’s Ex. 7

7:30). Consequently, the police turned their investigation to Bill.

      When he knew the police were wanting to speak with him, Bill called the

investigating officer, Thomas Prumer. During that phone call, Bill admitted he

was in the area at the time of the robbery and had run when he saw the assailant

running. (State’s Ex. 7 1:44-1:47). Bill said on the day of the robbery, he was

wearing a blue and red shirt with turquoise and yellow shorts (clearly not one for

fashion). (Id. 3:42; 5:21-:26). Bill explained Juan has known Bill since Bill was

a child. (Id. 2:27). Bill told Prumer to contact Juan, and Juan would verify Bill

was not his attacker. (Id. 2:36, 8:05).

      Prumer did not reach out to Juan. (5 RR 22-23). Instead, Prumer asked

Bill to come to the police station and submit himself to interrogation. Bill did as

the officer requested, setting up a time for the interview, showing up, and

answering Prumer’s questions for almost a full hour. (State’s Ex. 8).




                                          -4-
       During the interview, Bill said he had seen “Honey Pie” running from

Juan’s apartment at the time of the robbery. 3 (Id. 6:47). Honey Pie had on a

red Dickey suit. (Id. 4:15). Bill again urged Prumer to bring Juan in, as he was

confident Juan could clear his name. (Id. 19:23, 22:00, 26:16, 32:10). Bill even

offered to stand in a lineup. (Id. 4:04).

       In response to Bill’s pleas that Prumer actually speak with the victim,

Prumer said he had contacted Juan, and Juan said Bill was the robber. (Id.

32:00). Prumer had not contacted Juan. (5 RR 129). Even in the face of Prumer

repeatedly saying Juan had implicated Bill, Bill steadfastly maintained Juan

knew Bill, and he would verify Bill was not the attacker. (State’s Ex. 8, 32:48,

34:13, 34:18, 38:14, 38:18, 38:22, 38:26, 52:01).

       Prumer also told Bill “numerous people” and “everyone” was saying Bill

had attacked Juan. This, again, was not true. (5 RR 130). In the face of

Prumer’s repeated attacks, based on blatantly incorrect statements, Bill held his

ground, whimpering repeatedly that it was not him. (State’s Ex. 8 27:57, 28:34,

38:38, 39:14, 40:58, 42:00, 43:48). Prumer’s case against Bill was built solely on

the statements of a man who did not even witness the attack. (5 RR 131).



3 Another resident at the apartment complex, Lee Hall, described for Prumer a “Honey Pie”
who was wearing a red outfit. (5 RR 120). Prumer never asked Mr. Hall about “Honey Nut.”
(Id. 122). He did not show Mr. Hall a picture of Bill to see if Mr. Hall recognized Bill. (Id.).


                                             -5-
      It was not until trial that Juan was asked who robbed him. Juan testified

he would recognize his attacker. (5 RR 13). The following then occurred:

      Q.    Can you see all of the different people in the courtroom today?
      A.    Oh, yeah.
      Q.    Do you see the man who was in your apartment in the
            courtroom today?
      A.    I don’t see him.

(Id. 13-14). The prosecution, testing Juan’s vision then asked,

      Q.    Can you see all the people? Can you see me?
      A.    Yeah.
      Q.    Can you see my face clearly?
      A.    Yes.

(Id. 14). The court then excused the jury and allowed Juan “to walk around the

courtroom . . . [and] look at everybody.” (Id. 15 (emphasis added)). Juan did as

the court asked. (Id. 16). The following then occurred:

      THE COURT:        Did you get a chance to see everybody clearly?
      THE WITNESS: Yeah.
      THE COURT:        Okay. And did you see the guy who was in your
                        apartment that night?
      THE WITNESS: Huh-uh.

(Id. 16).



                                      -6-
      Ten days after Juan was robbed, Bill and Olda Dean got into a fight. Olda

Dean was intoxicated, however, and the fight was short and very one-sided.

Video surveillance, which again is so pixilated it is impossible to make out the

identities of the people involved, showed one person going up to another person.

(State’s Ex. 6 15:54). Observers said it was “Honey Nut” (which is Bill’s

nickname) who went up to Olda Dean and instigated the fight. (5 RR 149, 155).

      The video shows Bill somehow struck Olda Dean, though there is no

evidence he used a closed fist (in a punch) rather than an open hand (in a slap).

(Id.; 6 RR 91). In any event, something happened and Olda Dean went down to

the ground. (State’s Ex. 6 16:07). As Olda Dean was on the ground, Bill struck

him two to three times with one of his feet. (Id. 16:17, 16:33; 6 RR 83-84).

Evidence established Olda Dean suffered a 2 centimeter cut on the back of the

his head, which required three staples, and a busted lip as a result of the incident.

(5 RR 153; State’s Ex. 23 at 18).

      Bill went to the police station and admitted he had assaulted Olda Dean.

(State’s Ex. 24). Bill explained the two did not get along because they “mess

with the same girl.” (Id. 1:27, 2:02). He confessed to hitting Olda Dean once

with his open hand (id. 5:42, 5:43, 5:58) and then kicking him in the face. ( Id.

5:42-:45, 5:58, 6:02-:06).



                                        -7-
      The State charged Bill with aggravated assault for causing bodily injury

to Olda Dean by using a deadly weapon, i.e. his foot. The State also asserted Bill

assaulted Olda Dean because Olda Dean had reported the robbery.

      Police suspected Bill’s retaliatory intent because the assault occurred the

same day police interrogated Bill about the robbery. During the interrogation,

the officer asked Bill who he routinely saw at the apartment complex. (State’s

Ex. 8 11:54, 12:32). Bill began detailing some of the people he saw at the

complex. (Id. 11:54-12:38). In this context, the officer asked, “do you know

Olda?” (Id. 12:39). Bill responded he did not. (Id. 12:40). The officer then said,

“Olda Lewis?” (Id. 12:43). Bill again indicated he did not know Olda. (Id.

12:44).   Olda Dean later testified he goes by Olda or by Dean. (6 RR 23). No

one ever asked Bill if he knew Dean. (5 RR 123). In fact, when Bill was later

discussing the assault he said he assaulted Dean. (State’s Ex. 24 2:10). Several

minutes later in the interview, Prumer shifted gears from finding out what Bill

saw that day to directly accusing Bill of being the robber. (State’s Ex. 8 compare

12:43 and 19:16). Police never told Bill that Olda Dean had implicated Bill in

robbing Juan. Even if they had, they used a name Bill did not recognize.

      The jury found Bill guilty of aggravated assault-retaliation. They then

sentenced him to serve ninety-nine years in prison. The instant appeal follows.



                                       -8-
                        SUMMARY OF THE ARGUMENT

      A jury sentenced Bill Collins to ninety-nine years’ incarceration over a

busted lip and a cut two centimeters (approximately ¾ of an inch) long.

      The jury found Bill robbed Juan Bazaldua and then assaulted Olda Dean

Lewis when he found out Olda reported the robbery and Bill to the authorities.

The evidence, however, is insufficient to establish the assault was in retaliation

for Olda’s report. First, the evidence did not show Bill even knew Olda had

reported him to the police as the robber. Moreover, Juan’s testimony at trial

established Bill was not the person who robbed him.

      The jury also found Bill used his foot as a deadly weapon when he assaulted

Olda. The evidence is not sufficient to support the jury’s determination. The

evidence only showed Bill used his foot to kick Olda. A foot is not a deadly

weapon, per se. Without some additional evidence establishing how the foot

could have constituted a deadly weapon, the jury’s determination is

insupportable. The State failed to offer any evidence about the size difference

between Bill and Olda or Bill’s strength. There was no expert testimony about

how Bill’s particular use of his foot on Olda elevated the assault to one involving

a deadly weapon. Viewing all the record evidence, the jury’s deadly weapon

determination is not supported by sufficient evidence.



                                       -9-
                                   ARGUMENT

      I. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY’S FINDING THAT
                           BILL ACTED IN RETALIATION

               A. Determining the Sufficiency of the Evidence
                       Establishing Retaliatory Intent

      Due process demands the State prove, beyond a reasonable doubt, every

element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct.

2781, 2788, 61 L.Ed.2d 560 (1979); Cada v. State, 334 S.W.3d 766, 773-74 (Tex.

Crim. App. 2011). If the evidence was insufficient to support the jury’s verdict,

it cannot stand. Jackson, 443 U.S. at 317-18, 99 S.Ct. at 2788.

      In determining whether the evidence is sufficient to support a finding of

guilt, the reviewing court should evaluate all of the record evidence in the light

most favorable to the verdict and determine whether the factfinder was

“rationally justified in finding guilt beyond a reasonable doubt.” Brooks v. State,

323 S.W.3d 893, 902 (Tex. Crim. App. 2010); see Jackson, 443 U.S. at 318, 99 S.Ct.

at 2788. This standard applies to a review of a jury’s findings on punishment

issues. Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994). This

standard “gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct.



                                       - 10 -
at 2789. “If, given all of the evidence, a rational jury would necessarily entertain

a reasonable doubt as to the defendant's guilt, the due process guarantee requires

that we reverse and order a judgment of acquittal.” Guevara v. State, 152 S.W.3d

45, 49 (Tex. Crim. App. 2004) (emphasis in original).

      Section 22.02(b)(2)(C) of the Texas Penal Code establishes the following are

the pertinent elements of aggravated assault-retaliation: The person

      (1) intentionally, knowingly, or recklessly causes bodily injury to another

      (2) using a deadly weapon

      (3) in retaliation against a prospective witness to or who has reported the
          occurrence of a crime.

TEX. PEN. CODE ANN. § 22.02(b)(2)(C). Retaliation is not defined in Section

22.02. See id. It is, however, discussed as an independent offense in Section 36.06

of the Penal Code. See id. § 36.06; see Brown v. State, No. AP-77,019, 2015 WL

5453765 (Tex. Crim. App. Sept. 16, 2015) (looking to Section 36.06 in the case of

an offense under Section 19.03(a)(2), murder in the course of retaliation). That

provision establishes a person commits the offense of retaliation if he

intentionally or knowingly harms or threatens to harm another by an unlawful

act in retaliation for the person reporting a crime. Id.; see TEX. GOV’T CODE ANN.

§ 311.023 (stating in construing a statute a court may consider laws on the same

or similar subjects).


                                       - 11 -
      It is not sufficient for the State to merely prove the assault temporally

followed report of the crime. See Raybon v. State, No. 02-12-00071-CR, 2013 WL

4129126 at *4 (Tex. App.—Fort Worth Aug. 15, 2013, pet. dsms’d). Rather, the

law requires the State to prove “the unlawful act was committed in retaliation

for, or on account of, another person’s service . . .” Riley v. State, 965 S.W.2d 1,

2 (Tex. App.—Houston [1st Dist.], pet. ref’d); see Helleson v. State, 5 S.W.3d 393,

395 (Tex. App.—Fort Worth 1999, pet. ref’d) (establishing “[t]o support a

conviction for the offense of retaliation, the evidence must establish the

retributory element found in section 36.06(a)(1), i.e., that the unlawful act was

committed in retaliation for or on account of another person’s service as a public

servant”).

      Stated differently, “[r]etaliation is a result oriented offense and the focus

is on whether the conduct is done with an intent to effect the result specified in

the statute.” In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth 2002,

no pet.). That is, did the defendant engage in the action with the intent to harm

another because that person reported a crime or might later become a witness

against him. See id.; Herrera v. State, 915 S.W.2d 94, 98 (Tex. App.—San

Antonio 1996, no pet.).




                                       - 12 -
B. The Evidence is Insufficient to Establish Bill Acted with Retaliatory Intent

      Bill assaulted Olda. He has never denied the assault. The question for the

Court, however, is whether the assault was because of Olda reporting the robbery

or because of a different, non-retaliatory reason. The answer to that question

involves determining Bill’s state of mind at the time he assaulted Olda.

              1. The Evidence Failed to Establish Bill Knew Olda
                       Reported Him to be the Robber

      As an initial matter, the State failed to establish Bill knew Olda had

reported Bill to be the robber. Evidence at trial showed Bill knew Juan came out

of his apartment after the assault and went to his neighbor’s (Olda’s) apartment.

(State’s Ex. 8 2:08). Bill assumed, “I guess the guy next door called the police or

whatever.”    (Id. 2:13).   Bill never indicated, however, that he knew Olda

implicated him in the robbery during that call.

      Detective Prumer did ask if Bill knew Olda Lewis. He did so, however, in

the context of Bill detailing everyone he knew at the complex, not in the context

of Olda inculpating Bill as the robber. Moreover, there was no evidence to

establish Bill knew Olda as “Olda” and not “Dean,” a name Olda also went by.

So if Prumer’s statement could have somehow tipped off Bill that Olda said Bill

was the robber, there is no evidence establishing Bill understood “Olda” to be the

man he knew as “Dean.”


                                       - 13 -
      Bill would otherwise have no reason to conclude Olda implicated him in

the robbery. Olda did not see the robbery. Bill steadfastly contended Juan (the

robbery victim) would say Bill was not the robber. Therefore, Bill would have

no grounds upon which to conclude Olda would implicate him in the phone call

to the police.

      There is simply insufficient evidence indicating Bill knew Olda inculpated

him. Without that requisite knowledge, there can be no retaliation. See Helleson,

5 S.W.3d at 395; Riley, 965 S.W.2d at 2. Unless he knew Olda said “Bill was the

robber,” Bill would have no reason to retaliate against him. See Ortiz v. State, 93

S.W.3d 79, 87 (Tex. Crim. App. 2002)(holding evidence supporting retaliation

finding sufficient where the defendant and witness had committed crime together

and therefore, without a doubt, the defendant knew the witness had knowledge

of defendant’s participation in a crime); Brown v. State, 2015 WL 5453765 at *7

(holding evidence sufficient to support retaliation where defendant stated several

times he knew the declarant had called the police). Because there is no evidence

indicating Bill knew or should have known Olda made any such statement, the

evidence is insufficient to support the retaliation element.




                                       - 14 -
              2. The Evidence Failed to Establish Bill Robbed Juan

       If Bill did not rob Juan, then there would likewise be no cause for him to

retaliate against Olda. Olda was not a witness to the robbery. (5 RR 216-17).

Juan was. (Id. 13). Bill was confident Juan would say Bill was not the robber.

(State’s Ex. 8 19:23, 26:16, 32:10, 32:48, 34:13, 34:18, 35:18, 38:22, 38:26, 52:01).

Juan was never asked to look at Bill before trial and verify Bill was the robber.

(5 RR 22-23).      At trial, when he finally got the opportunity to voice his

recollection, Juan essentially said Bill was not the robber – just as Bill had

foretold. (Id. 13-16).

       If Bill did not rob Juan, then Bill would not have any reason to retaliate

against Olda for calling 911. The only evidence indicating Bill was the one who

robbed Juan was Olda’s testimony that Bill was wearing red the day of the

robbery, which was the same color worn by the robber. Such a broad description,

however, is a far cry from establishing with any degree of certainty that Bill and

the robber were one and the same. This tenuous link breaks altogether when the

robbery victim himself indicated Bill was not the robber.4


4  The retaliation statute admittedly does not expressly require the defendant to have
committed the underlying crime. See In re K.H., 169 S.W.3d 459, 464 (Tex. App.—Texarkana
2005, no pet.)(holding Section 36.06 requires the State to prove the defendant had actually
committed a crime in a case where the underlying action was not technically illegal). The
statute makes no sense, however, if it can apply to an innocent person, for why would an
innocent person care if someone reports a crime.


                                           - 15 -
         3. The Evidence Otherwise Failed to Prove Retaliatory Intent

      Immediately before the assault, Olda heard Bill say “you won’t say

nothing else, you won’t do that again.” (6 RR 15). The factfinder is permitted

to make rational inferences about whether a comment indicates a retaliatory

intent. It may not, however, impermissibly speculate about one’s intent by

“theorizing or guessing about the possible meaning of [the] facts and evidence

presented.” Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013).

      This statement is too vague to establish Bill was referencing Olda speaking

with the police about the robbery. See In re E.P., 257 S.W.3d 523, 526 (Tex.

App.—Dallas 2008, no pet.)(finding retaliatory intent in the phrase “I’m gonna

kick your ass for turning me in”). There is no evidence the “that” to which Bill

was referring was Olda speaking with the police about the robbery.              The

statement could have referenced anything. Without something more to establish

intent, this statement is insufficient to show Bill acted with retaliatory intent.

      Considering the entire record, the evidence is insufficient to establish Bill

had any motive for retaliating against Olda. The evidence fell far short of

proving Bill had even robbed Juan in the first place, much less that Bill knew

Olda implicated him in the robbery. The evidence was insufficient to establish

Bill had any retaliatory intent in assaulting Olda.



                                       - 16 -
     II. THE EVIDENCE IS INSUFFICIENT TO SUPPORT THE JURY’S FINDING THAT
                          BILL USED A DEADLY WEAPON

      A “deadly weapon” is “anything that in the manner of its use or intended

use is capable of causing death or serious bodily injury.” TEX. PEN. CODE ANN.

§ 1.07(17)(B). “Serious bodily injury” is “bodily injury that creates a substantial

risk of death or that causes death, serious permanent disfigurement, or protracted

loss or impairment of the function of any bodily member or organ.” Id. (46).

      In order to establish an object constituted a deadly weapon, the State is

not required to make any one, specific showing. It need not show the victim

actually suffered serious bodily injury. See Tucker v. State, 274 S.W.3d 688, 691

(Tex. Crim. App. 2008). There is no prerequisite for expert testimony explaining

how the object could be a deadly weapon. Denham v. State, 574 S.W.2d 129, 131

(Tex. Crim. App. 1978) (en banc).

      While no one showing is necessary, the State must nevertheless provide for

the jury sufficient evidence upon which it could conclude a particular object

constitutes a deadly weapon. Even in cases where the weapon is a knife, the State

must introduce evidence in the form of either the actual knife, a victim’s

description of the knife or how it was used, evidence of the victim’s injuries, or

testimony about the knife’s life-threatening capabilities before the jury can

conclude the knife constituted a deadly weapon. See Gibson v. State, Nos. 07-13-


                                       - 17 -
00412-CR, 07-13-00413-CR, 2014 WL 4197529, at *4 (Tex. App.—Amarillo Aug.

25, 2014, pet. ref’d) citing Thomas v. State, 821 S.W.2d 616, 619 (Tex. Crim. App.

1991) (en banc); Villarreal v. State, 255 S.W.3d 205, 209 (Tex. App.—Waco 2008,

no pet.). No one factor is necessary, but there must be some combination of these

or other relevant factors in order to establish an object was used as a deadly

weapon.

      Applying this analysis to the instant case, there are several different factors

that may aid in the determination of whether the evidence was sufficient to

support the jury’s determination that a foot was used as a deadly weapon: the

manner of its use or intended use; the nature or existence of inflicted wounds; and

any testimony of the object’s life-threatening capabilities. See Villarreal, 255

S.W.3d at 209; Moore v. State, No. 10-08-00211-CR, 2009 WL 1886450 (Tex.

App.—Waco July 1, 2009, pet. ref’d)(applying Villarreal in a case where the

deadly weapon was alleged to be a foot). Evidence about the relative size of the

parties and the size and condition of the foot may also support the jury’s

determination. See Turner v. State, 664 S.W.2d 86, 90 n. 5 (Tex. Crim. App. 1983);

Hemphill, 2004 WL 722247 at *4.




                                       - 18 -
       For example, in one case the defendant first knocked his wife to the floor

and then kicked her in the lower back and chest. Lane v. State, 151 S.W.3d 188,

192 (Tex. Crim. App. 2004). As a result of the attack the wife lost consciousness

and suffered a concussion. Id. Additional evidence from a paramedic, a nurse,

and two police officers established the defendant’s use of his hands and feet could

cause seriously bodily injury. Id. Based on this combination of facts, the Court

of Criminal Appeals found the evidence was sufficient to support the jury’s

deadly weapon finding.

       In a similar case, the evidence was sufficient where a witness testified as to

defendant’s actions during the attack; a doctor testified such actions could cause

serious bodily injury; and the victim suffered a concussion. Powell v. State, 939

S.W.2d 713, 718 (Tex. App.—El Paso 1997, no pet.). Again, the deadly weapon

evidence was sufficient in a case where the victim suffered several broken bones

in his face, an eyewitness testified about the specific manner in which the victim

was attacked, and there was evidence the attack was so violent the attacker

injured himself. Carlson v. State, 940 S.W.2d 776, 780 (Tex. App.—Austin 1997,

pet. ref’d).




                                        - 19 -
      The jury may also consider the relative sizes of the attacker and victim. In

yet another case where the evidence supported the deadly weapon finding, the

victim was 5’2” and 105 pounds, and her attacker was 5’8” and 200 pounds.

Hemphill v. State, No. 08-03-00054-CR, 2004 WL 722247, at *4 (Tex. App.—El

Paso Apr. 1, 2004, pet. ref’d). The victim detailed the assault, wherein she

sustained “severe” injuries and bruising. Id. A doctor and a police officer both

testified the attacker’s use of his hands and knees in the manner used against the

victim, could be deadly. Id.; See Clark v. State, 886 S.W.2d 844, 845 (Tex. App.—

Eastland 1994, no pet.)(evidence supported finding feet constituted deadly

weapons where the defendant struck and kicked a two-year-old child in a manner

capable of causing death).

      Even with the wide latitude allowed to the State in establishing the deadly

weapon enhancement, the State in the case at bar failed to provide evidence

proving Bill used his foot as a deadly weapon. The evidence against Bill is a very

pixilated recording showing one figure (Bill) striking another (Olda) with his foot.

While such an action is undoubtly an assault (for which Bill took responsibility),

there is nothing more indicating Bill’s foot was a deadly weapon.




                                       - 20 -
      There was no evidence about any size difference between Bill and Olda. See

Villarreal, 255 S.W.3d at 209. There was likewise nothing establishing whether

Bill was barefoot or wearing boots. See Turner, 664 S.W.2d at 90 n. 5. While Bill

admitted he kicked Olda in the face, there was no evidence indicating he did so

with any great measure of force. There was no evidence establishing Bill was

particularly strong or heavy and that he was otherwise capable of utilizing his

foot as a deadly weapon.

      There was also no evidence of severe injuries. Olda only suffered a busted

lip and a two centimeter cut. There was no evidence of a concussion. (State’s

Ex. 23, pg. 12). There were no fractures. (Id. 6). Olda did stay in the hospital

for approximately five days, but there was absolutely no evidence indicting he

had to stay for treatment of the busted lip and cut caused by Bill. To the

contrary, the medical records indicated Olda had several underlying problems

(independent of Bill’s assault) requiring medical treatment. None of those

conditions, however, were linked to Bill. Finally, there was no testimony from

either a police officer or a medical expert that evaluated Bill’s attack and

concluded Bill’s foot constituted a deadly weapon.




                                      - 21 -
      The State does not have to show Olda actually suffered a severe injury or

provide expert testimony or show what kind of footwear Bill had on at the time

of the attack or any one of the factors detailed above. No one factor is required,

but there is not even a combination of factors upon which the jury’s finding can

stand. The State has to provide some form of evidence establishing something

beyond mere assault with a foot. A foot is not per se a deadly weapon. The State

cannot simply allege Bill used his foot to kick Olda and present no additional

evidence establishing how his foot (in addition to being an instrument of assault)

was utilized as a deadly weapon.

      The State only proved Bill used his foot to kick Olda. Bill admitted as

much himself. It did not, however, present any additional evidence establishing

how that use entered the deadly weapon realm. The record evidence is insufficient

to establish Bill used his foot as a deadly weapon.



                                   III. PRAYER

      Appellant Bill Collins, prays this Court would find the evidence supporting

the jury’s verdict as to the retaliation and deadly weapon issues was insufficient.

Accordingly, Mr. Collins asks the Court reverse the Judgment and remand the

case for additional proceedings.



                                       - 22 -
         Respectfully submitted,
         Law Office of Allison Clayton
         P.O. Box 64752
         Lubbock, Texas 79464-4752
         Phone No.: (806) 773-6889
         Fax No.: (888) 688-4515

         By: /s/ Allison Clayton
         Allison Clayton
         State Bar No. 24059587
         Allison@AllisonClaytonLaw.com




- 23 -
                               CERTIFICATE OF SERVICE

      I certify that on November 9, 2015, a copy of this brief was served on

opposing counsel, Jeffrey S. Ford of the Lubbock County District Attorney’s

Office, via electronic mail.

                                               /s/ Allison Clayton
                                               Allison Clayton


                           CERTIFICATE OF COMPLIANCE

      I certify the foregoing Brief on the Merits complies with Rule 9.4(i)(2)(A)

of the Texas Rules of Appellate Procedure. The brief, excluding those portions

detailed in Rule 9.4(i) of the Texas Rules of Appellate Procedure, is 4,867 words

long. I have relied upon the word count function of Microsoft Word, which is the

computer program used to prepare this document, in making this representation.

                                               /s/ Allison Clayton
                                               Allison Clayton




                                      - 24 -
