                                                                                                        ACCEPTED
                                                                                                    02-16-00094-CR
                                                                         FILED          SECOND COURT OF APPEALS
                                                                                              FORT WORTH, TEXAS
                                                                   COURT OF APPEALS           2/24/2017 11:40:18 AM
                                                                SECOND DISTRICT OF TEXAS             DEBRA SPISAK
                                                                                                             CLERK

                                                                     February 28, 2017
                                                                     DEBRA SPISAK, CLERK
                                                                                         RECEIVED IN
                                                                                   2nd COURT OF APPEALS
                                                                                     FORT WORTH, TEXAS
                                                                                   2/24/2017 11:40:18 AM
                                                                                        DEBRA SPISAK
                                      SHAREN WILSON                                         Clerk
                                     .Criminal District Attorney
                                          Tarrant County

                                      February 24, 2017


Debra Spisak, Clerk
Second Court of Appeals District of Texas
Tim Curry Criminal Justice Center
401 W. Belknap, Suite 9000
Fort Worth, TX 76196
`
Re: Kenneth Wayne Lovett v. State of Texas
      Cause Numbers 02–16–0094–CR, 02–16–0095–CR
      State’s Post-submission Letter Brief

Dear Ms. Spisak:

      The parties presented oral argument in this case last week. The

State files this letter brief for purposes of clarification and elaboration while

contemporaneously filing an unopposed motion for leave to file as well.

•     The State sufficiently proved Appellant intentionally/knowingly
      displayed a deadly weapon in a manner calculated to alarm
      because he remained armed and declined law enforcement
      entreaties to disarm after being verbally notified that he could
      continue with his actions as long as he was unarmed; two of
      three people followed these directions. (3RR at 27–29, 35–37;
      5RR at SX3, SX4).1

1
 “Once I [Officer Kemp] told them to put their firearms away—I immediately said to put
them in the vehicle. Kory Watkins says maybe a couple of sentences and then upon


                  401 West Belknap     •   Fort Worth, Texas 76196    •   817.884.1400
State’s Post-Submission Letter Brief
Page 2

•      With respect to the interference offense, former Presiding
       Judge Onion’s decision in Carney provides the framework for
       discounting any additional constitutional repercussions based
       on the manner-and-means allegations proved in this case. See
       Carney v. State, 31 S.W.3d 392, 396–98 (Tex. App.—Austin
       2000, no pet.) (noting that the indictment’s manner and means
       allegation avoided any constitutional question). Although the
       manner and means were not proved in Carney, in this case the
       State proved all three manner and means alleged, including (1)
       refusing to obey a command to remove himself from being in
       close proximity to a traffic stop while carrying a deadly weapon,
       (2) refusing to disarm, and/or (3) refusing to obey orders
       regarding officer/civilian safety. See id. (1CR at 5, 37 [cause
       no. 1445032]).

•     During argument, counsel pointed out that this case does not
      squarely present constitutional questions. Appellant waived
      any as-applied claim. Curry v. State, 910 S.W.2d 490, 496 &
      n.2 (Tex. Crim. App. 1995) (recognizing that constitutional-as-
      applied argument must be properly preserved and presented).
      Likewise, Appellant waived any facial challenge. Karenev v.
      State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) (upholding
      waiver of facial constitutional challenge); Smith v. State, 463
      S.W.3d 890, 897–98 (Tex. Crim. App. 2015) (modifying Smith’s
      holding where a prior opinion has already held statute
      unconstitutional); see also TEX. CODE CRIM. PROC. art. 1.14(a)
      [Waiver of Rights].

•      The Court pointed out that the officers appeared calm on the
       video, not alarmed. Video evidence does not always provide a
       precise understanding of the scene it depicts and officers’
       viewpoints; courts should view such evidence through the prism
       of the appropriate standard of review. Cf. Jaganathan v. State,

me restating, he turns around, moves to that passenger side and puts—puts his inside.”
(3RR at 29). “Q. At some point whenever you’re making these statements to the
defendant, does he—does he acknowledge you? Does he do anything? A. He—at one
point he says, no, I’m not going to do it.” (3RR at 36). Appellant’s failure to disarm at
this juncture constituted strong evidence of his culpability to cause alarm. In addition to
the arguments set out in the State’s brief (pgs. 8–22), the record proves Appellant
culpably displayed his weapon in a manner calculated to alarm.
State’s Post-Submission Letter Brief
Page 3

      479 S.W.3d 244, 248–49 (Tex. Crim. App. 2016) (upholding
      officers reasonable-suspicion determination where lower court
      failed to view video evidence in light most favorable to the trial
      court’s ruling).

      Please pass this information on to the Court. As always, thanks so

much.

                                       Respectfully submitted,

                                       SHAREN WILSON
                                       Criminal District Attorney
                                       Tarrant County, Texas

                                       DEBRA WINDSOR, Assistant
                                       Criminal District Attorney
                                       Chief, Post-Conviction

                                       /s/ Tanya S. Dohoney
                                       TANYA S. DOHONEY, Assistant
                                       Criminal District Attorney
                                       State Bar No. 02760900
                                       Tim Curry Criminal Justice Center
                                       401 W. Belknap
                                       Fort Worth, Texas 76196-0201
                                       (817) 884-1687 FAX (817) 884-1672
                                       COAAppellateAlerts@TarrantCountytx.gov
State’s Post-Submission Letter Brief
Page 4

                       CERTIFICATE OF CONFERENCE

        After an exchange of emails, opposing counsel, Millie Thompson,

filed a motion for leave to file a post-submission letter brief on February 17,

2017.     Ms. Thompson’s motion states she does not oppose the State

seeking leave to file any post-submission briefing.

                                       /s/ Tanya S. Dohoney
                                       TANYA S. DOHONEY

                        CERTIFICATE OF COMPLIANCE

        This document complies with the typeface requirements and word-

count limitations set out in TEX. R. APP. P. 9.4.         Undersigned counsel

certifies that this document contains 968 non-exempted words or less as

computed by Microsoft Word software used for generation.

                                       /s/ Tanya S. Dohoney
                                       TANYA S. DOHONEY

                          CERTIFICATE OF SERVICE

        In addition to emailing copies of this letter, a true copy of the State’s

letter brief has been e-served on February 24, 2017, as follows: Hon. Millie

L. Thompson, 401 Congress Ave., Ste. 1540, Austin, Texas 78701 at

millieaustinlaw@gmail.com and Hon. J. Deniz Kadirhan, 2312 Western

Trails Blvd., Ste. 102–A, Austin Texas 78745 at deniz@kadirhanlaw.com.

                                        /s/ Tanya S. Dohoney
                                        TANYA S. DOHONEY
