                                                                    ACCEPTED
                                                                12-15-00224-CR
                                                   TWELFTH COURT OF APPEALS
                                                                 TYLER, TEXAS
                                                          11/13/2015 1:54:50 PM
                                                                      Pam Estes
                                                                         CLERK



      CASE NO. 12-15-00224-CR 

                                              FILED IN
                IN THE 
               12th COURT OF APPEALS
                                            TYLER, TEXAS
   TWELFTH COURT OF APPEALS 
          11/13/2015 1:54:50 PM
                                              PAM ESTES
            TYLER,TEXAS 
                       Clerk




FEDRICK HARRIS STRALOW, Appellant 

              vs. 

  THE STATE OF TEXAS, Appellee 



         On Appeal from the 

   County Court of Law Number Two 

      Henderson County, Texas 


(Trial Court Case Number 2014-0626CL2) 



        BRIEF OF APPELLEE 





                Barry L. Spencer, Jr.
                Henderson County Attorney's Office
                100 E. Tyler Street, Room 100
                Athens, Texas 75751
                Telephone: (903) 675-6112
                Facsimile:    (903) 675-6192
                EMAIL:
                       barry.spencer@co.henderson.tx.us
                State Bar No.:       24013548
                ATIORNEY FOR APPELLEE
                THE STATE OF TEXAS
                                                TABLE OF CONTENTS 


Identity pf Parties and CounseL ....................................................................................... ii 


Index of Authorities ........................................................................................................ iv 


Statement of the Case .................................................................................................... 1 


Issue P~esented ...............................................................................................................2 

            !

            I

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


Summa,:), of Argument ..................................................................................................... 4 

            I



Argumert and Authority ..................................................................................................5 


Conclusion .......................................................................................................................8 


Prayer .,............................................................................................................................9 

           !

Statem~nt Regarding              Oral Argument. .............................................................................. 9 

           I

Certifica.te of Service ...................................................................................................... 10 

           I





Certific~te      of Compliance with Rule 9.4 ......................................................................... 10 





                                                                 ...
                                                                 111 

                                          INDEX OF AUTHORITIES 


CASES 

      i
Bro9ks v. State, 323 S.W.3d 893 (Tex,Crim.App. 2010) ................................................. 5 


Caslanello v. State, 810 S.W.2d 800 (Tex. App.-Austin 1991, no pe1.) ........................ 5 


JacKson v. Virginia, 443 U.S. 307 SUD. Ct. 2781 (1979) .................................................. 5 


Johnson v. State, 23 S.W.3d 1.11 (Tex. Crim. App. 2000) ........................................... 5 

      !

ROdtiguez v. State. 212 S.W.3d 819 (Tex. ADD-Austin. 2006, no pet.) ......................... 6 


Saxtbn v. State. 804 S.W.2d 910 (Tex. Crim App. 1991) ............................................... 6 


S

Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. ApD. 2003) ................................................. 5 




STAn-UTES AND RULES:
     I

Tex*s Penal Code Ann. Section 9.31 (a) ......................................................................... 6 


Texas Penal Code Ann. Section 9.31 (b)(5) ....................................................................6 


Tex. Code. Crim. Proc. 38.04 .......................................................................................... 7 





                                                           IV 

                               CASE NO. 12·15·00224-CR 


                                         INTHE 


                            "TWELFTH COURT OF APPEALS 


                                     TYLER,TEXAS 




                         FEDRICK HARRIS STRALOW, Appellant 

                                       vs. 

                           THE STATE OF TEXAS, Appellee 



                                  On Appeal from the 

                            County Court of Law Number Two 

                               Henderson County, Texas 


                        (Trial Court Case Number 2014-0626CL2) 



                          APPELLEE'S BRIEF ON THE MERITS 



TO       E HONORABLE COURT OF APPEALS:

         Comes now Appellee, THE STATE OF TEXAS, by and through her attorney,

Barry. L. Spencer, Jr., and respectfully submits her brief on the merits urging that

Appellant's conviction for the offense of Assault-Family Violence be affirmed and that
     !
he b~ punished in accordance with the trial courts judgment in this case.

         Appellant hereby waives oral argument.

                              STATEMENT OF THE CASE

         FEDRICK HARRIS STRALOW, Appellant, was charged by complaint and
     I

information for the offense of Assault Causing Bodily Injury to a Family Member alleged
     !

to h~we occurred on October 1, 2014. (Clerk's Record, Volume 1, Pages 1-2). On May

11, 2015, a jury heard evidence and found Appellant guilty of the offense charged. (CR

1:3S).    On July 22, 2015, a sentencing hearing was held and the Court sentenced

ApPl3l1ant to three hundred sixty five (365) days confinement in the Henderson County
     .                                      I
                i

Jail       ~nd         assed a $750.00 fine, but probated the sentence for twenty-four (24) months.
            I
                I
(CR ~ :44-48).

                     Appellant filed a timely Motion for New Trial on July 28,2015. (CR 1:49-51).

                     Appellant filed his Notice of Appeal on August 27,2015. (CR 1:68).

                                                 ISSUES PRESENTED

                           Appellant raises one issue on appeal:

                           Appellant claims the evidence is legally and factually
                           insufficient to reject Appellant's self-defense plea and to
                           support the jury's finding of Defendant guilty.

                                             STATEMENT OF FACTS

                     FEDRICK HARRIS STRALOW, Appellant. was charged by complaint and

information for the offense of Assault Causing Bodily Injury to a Family Member alleged
           iI
to hqve occurred on October 1, 2014. (CR 1: 1-2).

                     On May 11, 2015, a jury heard evidence and found Appellant guilty of the offense

charged. (CR 1:38). On July 22, 2015, a sentenCing hearing was held and the Court
           I
sentenced Appellant to three hundred sixty five (365) days confinement in the
           i
Henperson County Jail and assed a $750.00 fine, but probated the sentence for twenty­

fourl(24) months. (CR 1:44-48).

                    Appellant has appealed to the Twelfth Court of Appeals.

       i            The testimony at trial consisted of the testimony of four witnesses:   Stephanie

Dug~an (the complainant), Melody Ellerbe (Duggan's other brother's girlfriend), Thomas
       i

Goddell (Henderson County Sheriff's deputy), and Appellant
       i

                    Duggan testified that she is Appellant's biological niece and adopted sister. (RR

2:6d). That on October 1, 2014 at about 3:30 or 3:45 in the afternoon that she went to

the ihome of her mother (where Appellant was staying with their mother) to drop her

Chil~               off with Ellerbe to watch.    (RR 2:61,63,68).   Duggan testified that once she

                                                         2

drop*ed her child off in the basement with Ellerbe, that she went back upstairs into the
            I
kitch$n to get her keys to leave and Appellant comes out of his room and gets onto

Duggan about her child putting dog food into the water bowl the previous day.              (RR

2:64,p5). Duggan testified that Appellant was upset and angry when he came into the
        i

kitchen.           (RR 2:65).   Duggan testified that an argument began.    (RR 2:66).   When

Dugdan began arguing with Appellant, Appellant raved and approached her quickly.

(RR ?:66). Duggan stayed where she was when Appellant approached. (RR 2:67).

                Appellant got between 6-8 inches from Duggan's face and was yelling at her and

spittirg in her face. (RR 2:67). Duggan was scared of Appellant and pushed him to try
        i
to g~t him back from her. (R R 2:68-69).         Duggan had no plans to get into an altercation

with i Appellant and felt as though she was defending herself when she pushed

App~lIant. (RR 2:75). At that point, Appellant began punching her in the face. Id.

                When Appellant hit Duggan in the face, she fell and Appellant got over her and

cont~nued          striking her in the face and the arms. (RR 2:69-71). Appellant was so afraid
    I
    i

that she wet herself. (RR 2:73). The assault only stopped when Ellerbe came into the
    i



roo~.           (RR 2:72).

                Ellerbe testified that she was home on October 1, 2014. (RR 2:91). That after

Dug~an dropped her child off for Ellerbe to watch, that she heard Stephanie scream and

a loyd crash like someone falling on the floor.          (RR 2:92). That when she heard the

sOU~dS, Ellerbe ran upstairs to see what had happened. (RR 2:92). When she got up

the Stairs, Ellerbe saw Appellant pounding on Duggan. (RR 2:93). Duggan was curled

up on the floor and Ellerbe saw Appellant hitting her four or five times in the face. (RR

2:9~). Ellerbe yelled at Appellant to get off her and Appellant quit striking Duggan. (RR

2:94-95). From what Ellerbe saw, Duggan had no hopes of defending herself.                 (RR
    !
2:95). Appellant then went after Ellerbe. (RR 2:96).

                                                   3
                  Ellerbe testified that from what she saw, Appellant was not defending himself or

using only the amount of force necessary to defend himself. (RR 2:97).

                  Deputy Goodell testified that he was dispatched to the residence on an assault

call ~>n October 1, 2014.               (RR 2:102-103).     That after arriving at the residence that

Goo~ell spoke to a couple of females who told him that Duggan had been assaulted.
              I




(RR2: 104-105).               Goodell then went into the residence to speak to Appellant.        (RR

2:105).

              I Goodell testified that he looked at Appellant for injuries and found no blood, no
              !

scra1ches, no red marks, or any other sign that Appellant had been assaulted.                    (RR

2:10p-106).

                  Appellant testified that he observed Duggan from his open bedroom door and got

up to ask why she hadn't cleaned the food out of the water bowl.                (RR 2: 115). That he

wasm't angry or aggressive. Id.
          I
          I


                  Appellant testified that they approached each other and Duggan pushed him

twice, then grabbed him by the throat with both hands. (RR 2: 116), He then reached

oven and hit her one time. Id. Duggan then fell on the ground. (RR 2: 117). He "just hit

her and she was lying on the ground crying like a little baby." (RR 2: 127). Appellant

testified that he only hit Duggan one time and that Ellerbe was being dishonest. (RR

2: 11:7-119,130).

                  The jury rejected Appellant's claim of self-defense and found Appellant guilty of

the   ~ffense charged.           It is that verdict that Appellant appeals.
      !
                                         SUMMARY OF ARGUMENT

                  The evidence was sufficient to prove Appellant gUilty of the offense of Assault

Causing Bodily Injury to a Family Member beyond a reasonable doubt. Appellant does
      I
not claim the State did not meet the statutory elements of the offense, but rather that the

                                                        4
                   i
                   i
Stat~ failed to disprove Appellant acted in self-defense when the offense was

comfitted. The evidence presented at trial was sufficient to prove Appellant did not act
               I

in s9lf-defense when the offense was committed. Appellant provoked the difficulty, the

forc~                  used by Appellant was not immediately necessary to protect Appellant, and the
               1




use 10f force by Appellant was excessive in response to the justified use of force by

Duggan.
               I



           I                                           ARGUMENT
           I
                                                  1. Standard of Review

                       The standard of review to determine sufficiency of the evidence is whether, in

viewiing all the evidence in light most favorable to the State, any rational trier of fact

coul~ have found the essential elements of the crime. Jackson v. Virginia, 443 U.S.
           I
           I




307'1443 U.S. 307, 61 L. Ed. 560, 99 S. Gt. 2781 (1979); Brooks v. State, 323 S.W.3d

8931(Tex.Grim.App. 2010). This is true both for direct evidence and for circumstantial

evidence. The jury is the exclusive judge of the credibility of the witnesses and the

weiQht to be given to their testimony. Castanello v. State, 810 S.W.2d 800, 807 (Tex.

Appl-Austin 1991, no pet.). They may accept all of the testimony of a witness, reject

all   at the testimony of a witness, or accept any part of the evidence.                Id.   Any disparity

of conflicts within the evidence is solely up to the jury to resolve. Id.                When a

def~ndant                  challenges the factual sufficiency of the rejection of a defense, the reviewing

courlt reviews all the evidence in a neutral light and asks whether the State's evidence

taken alone is too weak to support the finding and whether the proof of gUilt, although
       I

ade~uate if taken alone, is against the great weight and preponderance of the evidence.

Zuli8ni v. State, 97 S.W.3d 589 (Tex. Grim. App. 2003); Johnson v. State, 23 S.W.3d

1,111 (Tex. Grim. App. 2000).

                                              2. The Law of Self-Defense

                                                            5
                    Texas Penal Code Ann. Section 9.31 (a) provides in part. "A person is justified in

uSins force against another when and to the degree the actor reasonably believes the
                I

forcel is immediately necessary to protect the actor against the other's use or attempted
            I


use Qf unlawful force."

                    The defendant has the initial burden of producing some evidence to justify
            I


subnjlitting a self-defense instruction, the State must then prove beyond a reasonable

dou~t that the defendant did not act in self-defense.              Saxton v. State, 804 S.W.2d 910
        i
(Tex, Crim App. 1991). Although the State has the burden of persuasion, it does not
        I



have the burden of producing evidence to refute self-defense affirmatively. Saxton at

913.: Jurors must unanimously agree that the defendant's conduct was not justified by
        I



self-(Jefense. It is not necessary; however, that the unanimously agree as to why.

ROd~iguez v. State, 212 S.W.3d 819 (Tex. App-Austin, 2006, no pet.).

                    Texas Penal Code Ann. Section 9.31 (b)(5) provides, 'The use of force against

anot~er              is not justified: if the actor provoked the other's use or attempted use of

unlawful force, unless: (A) the actor abandons the encounter, or clearly communicates

to the other his intent to do so or reasonably believing he cannot safely abandon the

encQunter; and (8) the other nevertheless continues or attempts to use unlawful force

against the actor."
    I




                    The trial court must give a charge on provocation when there is sufficient
    I


eVid~nce (1) that the defendant did some act or used some words which provoked the
attafk on him, (2) that such act or words were reasonably calculated to provoke the

attack, and (3) that the act was done or the words were used for the purpose and with

the intent that the defendant would have a pretext for inflicting harm on the other. Smith

v. Slate, 965 S.W.2d 509. 513 (Tex. 1998).
                    Each of the three elements may be proved circumstantially. Id. at 515,517-18.

                                                         6

A prpvocation instruction should be submitted to the jury only when there is evidence

from which a rational jury could find every element of provocation beyond a reasonable
        I

douqt. Id. at 514.

The inquiry is whether "a rational jury could have found provocation beyond a

reasbnable doubt, viewing the evidence in the light most favorable to giving the

instr~ction.     Id.
        I
            The jury is the exclusive judge of all the facts presented in court and what weight

to bEt given to the testimony. Tex. Code. Crim. Proc. 38.04.

                       3. The Evidence is Sufficient to Support a Finding of Guilt 


        . Appellant does not claim the State did not meet the statutory elements of the 


offel)se, but rather that the State failed to disprove Appellant acted in self-defense when 


the Offense was committed. The State will therefore address why the jury did not err in

denying Appellant's claim of self-defense.

            Appellant did not act in self-defense.

            Appellant was the one who initiated the difficulty. Appellant was upset and angry

wheh he came into the kitchen. (RR 2:65). Appellant comes out of his room and gets

onto, Duggan about her child putting dog food into the water bowl the previous day. (RR

2:641,65).

            Appellant approached Duggan quickly. (RR 2:66). Duggan stayed where she

was [when Appellant approached. (RR 2:67). Appellant got between 6-8 inches from
    i
Duggan's face and was yelling at her and spitting in her face. (RR 2:67). Duggan was

scared of Appellant and pushed him to try to get him back from her. (RR 2:68-69). The

jury was free to not believe Appellant's claim that Duggan choked him.

    i       Goodell testified that he looked at Appellant for injuries and found no blood, no

scr~ches, no red marks, or any other sign that Appellant had been assaulted. (RR

                                                     7

2:105·106). Appellant never attempted to abandon the encounter, but decided to
            !

cont~nue the assault on Duggan. The jury was free to not believe Appellant's claim that

his u!se of force against Duggan was immediately necessary to protect himself. Duggan

lawf~lIy used a minimal amount of force against Appellant to defend herself.
           I
                Appellant then used an unreasonable amount of force against Duggan.
           I
App$lIant then hit Duggan in the face, she fell, and Appellant got over her and continued

striki'ng her in the face and the arms. (RR 2:69-71). Ellerbe saw Appellant pounding on

Dug~an. (RR 2:93). Duggan was curled up on the floor and Ellerbe saw Appellant
        I
hitting her four or five times in the face. (RR 2:94). According to Appellant, "she was

lying on the grourld crying like a little baby." (RR 2:127).
        I



                Appellant was not defending himself nor using only the amount of force

nec~ssary           to defend himself from Duggar. (RR 2:97). Duggan had no hopes of
       I




deferding herself from Appellant's attack. (RR 2:95). The jury was free to not believe

Appel/ant's claim that the amount of force that he used was reasonable or that it was
    I
    I
    I

immj9diately necessary to protect himself from Duggan's use of unlawful force, if any.

                The jury, as the exclusive judge of all the facts presented in court and what

weight to be given to the testimony, rejected Appellant's claim of self-defense.
    I


                                               CONCLUSION

                In conclusion, the evidence is sufficient to support a verdict of guilty for the

offense of Assault Causing Bodily Injury to a Family Member. The victim testified as to

eacth and every essential element of the Information and much of her testimony was
    I

    i

corroborated by other witnesses. Additionally, the testimony of the victim and other

witnesses showed that Appellant provoked the difficulty, the force used by Appellant

was; not immediately necessary to protect Appellant, and the use of force by Appellant

was; excessive in response to the justified use of force by Duggan. Appellant's
   I
   !

                                                       8

     ,
contdntion that the verdict is irrational due to the jury disbelieving his claim of self-

defe~se is without merit and Appellant's issue on appeal should be overruled.

                                          PRAYER

     : WHEREFORE, Appellee prays that this Court affirm the judgment of the
     I

conviction of the County Court at Law Number Two of Henderson County, Texas and

ente~ a judgment of guilty.

                                                   Respectfully submitted,

                                                   lsi Barry L. Spencer, Jr.
                                                   Barry L. Spencer, Jr.
                                                   Attorney for the State
                                                   100 E. Tyler St., Room 100
                                                   Athens, Texas 75751
                                                   State Bar No. 24013548
                                                   903675-6112 Telephone
                                                   903 675-6192 Facsimile
                                                   ATTORNEY FOR APPELLEE




                      STATEMENT REGARDING ORAL ARGUMENT

         Appellee respectfully requests that oral arguments in this case be waived that all

arguments
    ,     that would be asserted in oral arguments have been advanced in the brief.

                                                   lsi Barry L. Spencer, Jr.
                                                   Barry L. Spencer, Jr.
                                                   Attorney for the State




                                              9

                                   CERTIFICATE OF SERVICE

       I do hereby certify that on this, the 13th day of November, 2015, a true copy of

the tPpellee's brief will be served on the following parties bye-mail or bye-service, if

availpble.

       ATTORNEY FOR THE APPELLANT" 

       LINDA ALTIER 

       Altier Law Offices 

       1527 E. Fifth St. 

       Tyler, Texas 75701 

       Tel: 903 595-4232 

       Fax 903 595-0031 

       e-mail: altierlaw@gmaiLcom 

       SBN: 00783541 


                                                    lsi Barry L. Spencer, Jr.
                                                    Barry L. Spencer, Jr.
                                                    Attorney for the State




                        CERTIFICATE OF COMPLIANCE WITH RULE 9.4

       Using Microsoft Word word count utility, I have determined that this document

con~ains 2130 words, not including the "caption, identity of parties and counsel,
stat~ment    regarding oral argument, table of contents. index of authorities, statement of

issues presented, statement of jurisdiction, statement of procedural history, signature,

proOf of service, certification, certificate of compliance and appendix".



                                                    Lsi Barry L. Spencer, Jr.
                                                    Barry L. Spencer, Jr.
                                                    Attorney for the State




                                             10 

