                                                                                         ACCEPTED
                                                                                    07-15-00253-CR
                                                                       SEVENTH COURT OF APPEALS
                                                                                 AMARILLO, TEXAS
                                                                              10/29/2015 6:55:43 AM
                                                                                   Vivian Long, Clerk


                         CASE NO. 07-15-00253-CR

                    IN THE COURT OF APPEALS          FILED IN
                                              7th COURT OF APPEALS
               FOR THE SEVENTH DISTRICT OF TEXAS AMARILLO, TEXAS
                        AMARILLO, TEXAS       10/29/2015 6:55:43 AM
                                                                 VIVIAN LONG
                                                                    CLERK

                       DEREK KYLE AUVENSHINE

                                APPELLANT

                                      V.

                          THE STATE OF TEXAS

                                 APPELLEE


    Appealed from the 415TH Judicial District Court in Parker County, Texas
                          CAUSE NO. CR14-0088


                           APPELLANT’S BRIEF


                         No oral argument requested.


Companion Cases: 07-15-00251-CR; 07-15-00254-CR; 07-15-00255-CR


                                           Brandy Oliphint
                                           SBN: 24034608
                                           1712 Santa Fe Dr.
                                           Weatherford, Texas 76086
                                           Telephone: 817-341-7471
                                           Facsimile: 817-599-5909
                                           e-mail: brandy@oliphintlaw.com
                                           Attorney for Derek Kyle Auvenshine
                IDENTITY OF THE PARTIES AND COUNSEL

      I hereby certify that the following listed persons or entities have rights which

may be adversely affected by the outcome of this appeal in this Court so that the

Justices of this Court may review the same to determine the need for recusal or

disqualification, if necessary herein.


Appellant                        Mr. Derek Kyle Auvenshine
                                 TDCJ # 02003998
                                 Joe F. Gurney Unit
                                 1385 FM 3328
                                 Tennessee Colony, TX 75803
                                 Telephone: (903) 928-3118 (**094)

Appellate Counsel for            Ms. Brandy Oliphint
Appellant                        Attorney At Law
                                 Texas Bar No. 24034608
                                 1712 Santa Fe Dr.
                                 Weatherford, Texas 76086
                                 Telephone: (817) 341-7471
                                 Facsimile: (817) 599-5909
                                 Electronic Mail: brandy@oliphintlaw.com

Trial Counsel for                Mr. T. Richard Alley
Appellant                        Texas Bar No. 01078010
                                 108 Main Street
                                 Fort Worth, TX 76102
                                 Telephone: (817) 888-2980
                                 Facsimile: (817) 341-1536
                                 Electronic Mail: agmmlaw@aol.com




Appellant’s Brief                                                             Page ii
Appellate Counsel for   Mr. Don Schnebly
The State of Texas      Parker County District Attorney
                        Texas Bar No. 17782700
                        Mr. Edward Lewallen
                        Texas Bar No. 00791105
                        Parker County District Court Bldg., Second Floor
                        117 Fort Worth Hwy.
                        Weatherford, Texas 76086
                        Telephone: (817) 598-6124
                        Facsimile: (817) 599-7628
                        Electronic Mail:
                        edward.lewallen@parkercountytx.com

Trial Counsel for       Mr. Don Schnebly
The State of Texas      Parker County District Attorney
                        Texas Bar No. 17782700
                        Ms. Abigail Placke
                        Assistant District Attorney
                        Texas Bar No. 24032882
                        Electronic Mail:
                        abigail.placke@parkercountytx.com
                        Mr. Robert S. DuBoise
                        Assistant District Attorney
                        Texas Bar No. 00783990
                        Electronic Mail:
                        robert.duboise@parkercountytx.com
                        117 Fort Worth Hwy.
                        Weatherford, Texas 76086
                        Telephone: (817) 598-6124
                        Facsimile: (817) 599-7628

Trial Court Judge       The Honorable Judge David Cleveland, Presiding
                        415th Judicial District Court
                        117 Fort Worth Hwy.
                        Weatherford, Texas 76086
                        Telephone: (817) 598-6162
                        Facsimile: (817) 598-6161
                        Electronic Mail:
                        sheila.scruggs@parkercountytx.com


Appellant’s Brief                                                 Page iii
                            TABLE OF CONTENTS


Identity of the Parties and Counsel                                             ii

Table of Contents                                                              iv

Index of Authorities                                                            v

Statement of the Case                                                           1

Issue Presented                                                                 1

Statement of Facts                                                              2

Summary of the Argument                                                        14

Argument                                                                       14


Prayer                                                                         21

Certificate of Service                                                         22

Certificate of Compliance                                                      22


Appendix A: Judgment of Conviction by Jury                                Tab A

Appendix B: Court’s Charge                                                Tab B

Appendix C: Indictment                                                    Tab C

Appendix D: State’s Motion for Leave to Amend Indictment and Order        Tab D
            granting

* Appendices were created by exporting from the original clerk’s record
and converted to searchable .pdf documents which may have resulted in a
change in formatting from the original.


Appellant’s Brief                                                         Page iv
                               INDEX OF AUTHORITIES

Cases
Bates v. State, 155 S.W.3d 212, 216-17 (Tex. App.—Dallas 2004, no pet.). citing           16
        Young v. State, 752 S.W.2d 137, 140 (Tex.App.-Dallas 1988, pet. ref'd).

Brooks v. State of Texas, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010) (Cochran, J.,        20
        concurring).

Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995).                                  16
Davis v. State, 93 S.W.3d 664, 667 (Tex.App.-Texarkana 2002, pet. ref'd).                 16
Dixon v. State, 918 S.W.2d 678, 681 (Tex.App.-Beaumont 1996, no pet.);                    17
Evans v. State, 202 S.W.3d 402, 405-406 (Tex. Crim. App. 2005).                           15
Jackson v. Virginia, 443 U.S. 307, 313 (1979)                                             14
Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)                                 14
Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd).                  17
Watson v. State, 861 S.W.2d 410, 414-15 (Tex.App.-Beaumont 1993, pet. ref'd).             17




Statutes

Tex. Penal Code §46.04(a)(1)                                                              14
Tex. Penal Code §6.01(a)                                                                  15
Tex. Penal Code §1.07(a)(39)                                                              15
Tex. Penal Code §6.01(b)                                                                  15




Appellant’s Brief                                                                    Page v
                             STATEMENT OF THE CASE

       Derek Kyle Auvenshine (hereinafter referred to as “Appellant”) was indicted

of intentionally or knowingly possessing a firearm after the fifth anniversary of

Appellant’s release from incarceration other than the premises at which the

Appellant lived by a grand jury on or about February 20, 2014.1 This case was

consolidated for trial with cases numbered CR14-0087, CR14-0089 and CR15-

02362 which are on appeal as companion cases numbered 07-15-00251-CR, 07-15-

00254-CR and 07-15-00255 respectively. Following a jury trial, Appellant was

convicted in each case on May 29, 2015.3 At the punishment phase of Appellant’s

trial, Appellant entered a plea of true to the enhancements contained in each case.4

The jury sentenced Appellant to 27 years in the Institutional Division, Texas

Department of Criminal Justice.5


                                 ISSUE PRESENTED

       The trial court erred in denying Appellant’s motion for directed verdict.

Appellant challenges the sufficiency of the evidence to establish that Appellant

possessed a firearm.



1
  1 CR 7
2
  1 CR 27
3
  1 CR 101, 105
4
  6 RR 11, ll. 13-25; 1 CR 111
5
  6 RR 83, ll. 2-25; 1CR 111
Appellant’s Brief                                                             Page 1
                                   STATEMENT OF FACTS

        On or about January 14, 2014, members of the White Settlement Police

Department received information that a parole violator, Adam Crooks, would be at

a house on Perry Drive in the City of White Settlement, Tarrant County, Texas

with a green Jeep Cherokee.6 Officers of the White Settlement Police Department

then gathered for the purpose of apprehending Adam Crooks.7 A photograph and

description of Adam Crooks was made available to the officers.8 The officers were

additionally made aware that Adam Crooks was known to flee from officers

whether on foot or in a vehicle.9


        When the green Jeep Cherokee vehicle left the house on Perry, the vehicle

travelled past Officer Ross.10 Officer Ross indicated there were two occupants of

the vehicle11 and positively identified the driver of the vehicle as Adam Crooks

over the radio.12 Officer Ross testified he activated his patrol unit’s lights to

initiate a traffic stop for the purpose of arresting Adam Crooks.13 The vehicle



6
  3 RR 27, ll. 4-12; 80, ll. 12-24; 108, l. 19-109, l. 3; 109, ll. 18-21; 175, ll. 20-23; 176, ll. 5-7;
208, l. 21-209, l. 1
7
  3 RR 32, ll. 11-15, 40, ll. 9-10, 209, l. 21 – 210, l. 7; 4 RR 13, ll. 11-16
8
  3 RR 37, 6-9, 80, l. 25 – 81, l. 4, 113, ll. 20-22, 175, ll. 3-8
9
  3 RR 37, ll. 17-22, 117, ll. 6-8, 176, ll. 8-16, 22-25, 201, ll. 3-7; 4 RR 31, ll. 1-10
10
   3 RR 112 ll. 23-25
11
   3 RR 113, 12-15
12
   3 RR 175, ll. 9-15; 194, l. 12; 4 RR 30, ll. 17-25, 51, ll. 10-15; see State’s Exhibit No. 6 at
:050.
13
   3 RR 114, ll. 4-8, ll. 13-9, 115, ll. 5-6
Appellant’s Brief                                                                                  Page 2
failed to yield14 and a pursuit of the vehicle ensued.15 Officer Ross was joined by

three additional marked City of White Settlement Police Department patrol units

and an unmarked vehicle.16

        During the pursuit, the Jeep Cherokee came to a stop. Officer Ross exited

his vehicle and shot at the Jeep Cherokee with his Department issued AR-15, also

known as an M4 rifle, nine times striking the Jeep Cherokee.17 The vehicle was

then able to continue moving.18 The pursuit ended when the vehicle flipped and

landed on its side on FM 3325 in Parker County, Texas.19

        One person, identified as Adam Crooks, was located inside the Jeep

Cherokee, removed from the vehicle and arrested.20


        A second person later identified as the Appellant21, exited the vehicle

through the upturned driver’s door window.22 Appellant ran away from officers

through a barbed wire fence and was continuing to run away from officers up a hill




14
    3 RR 115, ll. 7-12
15
    3 RR 118, ll. 17-22
16
    3 RR 58, ll. 7-12; 4 RR 26, ll. 6-15
17
    3 RR 72, ll. 12-14, 73, l. 22 – 74, l. 3, 126, l. 23-127, l. 3, 143, l. 19 – 147, l. 14, 154, ll. 3-13,
18
    3 RR 127, ll. 10-18, 153, ll. 7-15; 4 RR 8-10
19
    3 RR 27, l. 25 – 28, l. 4,45, ll. 11-13, 128, ll. 21-24, 129, ll. 2-6, 139, ll. 15-18, 261, ll. 13-15;
4 RR 100, ll. 7-11, 162, ll. 22-25; see State’s Exhibit No. 4
20
    3 RR 48, l. 24 – 49, l. 8, 132, l. 24 – 133, l. 3
21
   3 RR 265, ll. 15-24, 4 RR 135, ll. 2-14, see State’s Exhibit No. 98
22
    3 RR 46, ll. 21-24, 129, ll. 20-23, 130, ll. 9-13, 261, l. 23-262, l. 7, 4 RR 35, ll. 2-6
Appellant’s Brief                                                                                    Page 3
when he was shot by Officer Ross and fell to the ground.23                               Appellant was

transported to John Peter Smith Hospital where White Settlement Police Officer

Joseph Anthony retrieved Appellant’s property from a nurse.24

        No firearm was recovered from Appellant’s person or from the area where

Appellant fell.25 A gun was located inside the Jeep Cherokee in which Appellant

was one of the two occupants.26


        Appellant was indicted in this case of intentionally or knowingly possessing

a firearm after the fifth anniversary of Appellant’s release from incarceration other

than the premises at which the Appellant lived by a grand jury on or about

February 20, 2014.27 This case was consolidated for trial28 with cases numbered

CR14-0087 alleging aggravated assault against a public servant, CR14-0089

alleging aggravated assault against a public servant, and CR15-0236 alleging

evading arrest or detention with a vehicle which are on appeal as companion cases

numbered 07-15-00251-CR, 07-15-00254-CR and 07-15-00255 respectively. On

May 8, 2015, the State’s Motion to Amend the indictment was granted and the




23
   3 RR 47, ll. 2-5, 48, ll. 11-14, 69, ll. 4-7, 12-18, 73, l. 24- 74, l. 3, 74, ll. 17-24, 131, ll. 1-10,
223, ll. 17-18; 4 RR 40, ll. 15-20
24
   4 RR 129, l. 1 – 130, l. 3.
25
   3 RR 6-9, 250, ll. 19-25; 4 RR 169, ll. 4-10
26
   3 RR 94, ll. 5-7, 240, ll. 2-6, 4 RR 80, ll. 1-2, 92, ll. 15-16, 197, ll. 14-19,
27
   1 CR 7
28
   1 CR 27
Appellant’s Brief                                                                                    Page 4
enhancement paragraphs were replaced and the language “Felony Enhancement

One” was crossed out of the indictment.


       The cases were called for jury trial on May 26, 2015.


       The State called Adam Crooks, as the only other occupant of the vehicle, to

testify in regard to which of the two occupants in the vehicle (1) was driving the

vehicle; and (2) possessed the firearm. Adam Crooks testified (1) that Adam

Crooks was not the driver29; and (2) that Adam Crooks saw Appellant had a gun

while in White Settlement, but did not see Appellant with a gun after the beginning

of the events.30 Under direct examination by the State’s attorney, Adam Crooks

additionally testified as follows:


       Q. Did you notice when Mr. Auvenshine, when he was in the driver’s
       seat and you’re in the passenger, that he reached his arm across you
       and pointed a gun at the officer that was outside your window?
       A. I don’t really remember that.
                                          ***
       Q. When Mr. Auvenshine drove that vehicle and it kind of spun
       around …was that when you saw him holding that gun at that officer?
       A. I never even seen that.31




29
   3 RR 90, ll. 17-19
30
   3 RR 100, l. 17 – 101, l. 3
31
   3 RR 99, l. 24 – 100, l. 1, 8-16
Appellant’s Brief                                                             Page 5
       In addition to Adam Crooks, the State presented testimony from Sergeant

Tim Denison, Officer William Ross, Corporal Josh Dacus, and Sergeant Roger

Yount of the White Settlement Police Department.

       Sergeant Denison testified that he could tell there were two occupants in the

vehicle, but could not see who was in side.32 Sergeant Dennison also testified that

no time did he see a weapon in the possession of either of the people in the vehicle

during the time that he was able to observe them33 and did not observe anyone in

the vehicle discharge a weapon toward or at the officers.34

       Officer Ross testified that when the Jeep Cherokee spun out and first came

to a stop35, he could see “the driver of the vehicle came across his body with his

right hand and put a pistol out the window pointed directly at me”36 from inside

Officer Ross’s vehicle.37 Officer Ross further testified, “I thought the weapon had

been fired.”38 Officer Ross described the gun as “a black semiautomatic

handgun.”39 When asked if he got a good look at the driver that day, Officer Ross

responded, “I don’t recall.”40 Officer Ross further testified that he “saw what [he]


32
   3 RR 37, ll. 4-5
33
   3 RR 76, ll. 10-13
34
   3 RR 76, ll. 7-9
35
   3 RR 192, ll. 2-5
36
   3 RR 124, ll. 11-13
37
   3 RR 192, ll. 6-8
38
   3 RR 125, l. 4
39
   3 RR 126, ll. 3-9
40
   3 RR 126, ll. 10-12
Appellant’s Brief                                                             Page 6
believed to be the driver jump out of the vehicle”41 and he did not see a gun in the

hand of the person who climbed out of the vehicle.42 Officer Ross testified that the

video recording equipment in his unit was not working43 and there is no recorded

radio traffic or in-car video from his unit corroborating the presence of a gun.44

Following the apprehension of Appellant and Adam Crooks, Officer Ross testified

that he was contacted by Texas Ranger Bradford who was conducting an

investigation into the incident.45 On the advice of counsel, Officer Ross provided

Ranger Bradford with a written statement which was typed by Officer Ross’s

attorney and reviewed and signed by Officer Ross.46         Officer Ross’s written

statement was admitted as Defense Exhibit No. 3.47

       Corporal Dacus testified that he noticed a handgun come out of the driver’s

side window of the Jeep Cherokee.48 Corporal Dacus said that from inside his

patrol unit he saw the driver of Jeep Cherokee, who was inside his vehicle, point a

gun at Officer Ross and then move to point the gun at him.49 Corporal Dacus later

clarified his statement in response to the Assistant District Attorney’s question

“Did you see him point the gun at Officer Ross?” by testifying “I saw the gun
41
   3 RR 129, ll. 7-8, 22-23
42
   3 RR 135, ll. 22-25
43
   3 RR 187, ll. 14-17
44
   3 RR 199, l. 17 – 200, l. 2
45
   3 RR 141, ll. 17-20
46
   3 RR 142, l. 15- 143, l. 3
47
   3 RR 144, l. 25 – 145, l. 6
48
   3 RR 215, ll. 2-7
49
   3 RR 215, l. 19 – 216, l. 6
Appellant’s Brief                                                             Page 7
pointed at Officer Ross’s vehicle.”50 Corporal Dacus testified he then stepped out

of his vehicle and was able to identify Adam Crooks and noted that Adam Crooks

“was in the passenger seat and not driving at that point”.51 Corporal Dacus further

testified that he saw the movement of the finger on the trigger of the gun, but the

gun didn’t fire52 and then the gun went down into the person’s lap.53 Corporal

Dacus acknowledge that, in his written statement, he stated he saw Appellant firing

a black-in-color semiautomatic handgun out of the driver window at Officer Ross

just prior to Corporal Dacus’s vehicle colliding with the Jeep Cherokee.54 Corporal

Dacus described the gun as a black semiautomatic handgun.55 While watching the

video recorded on his in-car recording equipment (marked State’s Exhibit number

756), Corporal Dacus indicates that the “black spot” visible on the video is the

handgun.57 Corporal Dacus further testified that it is his voice heard on the video

stating, “Driver has a gun. Driver has a gun.”58 In testimony, Corporal Dacus

acknowledges that the gun and persons inside the vehicle are not visible on the

video because the windshield looks black59 and the sound of shots fired from the


50
   3 RR 228, ll. 14-16
51
   3 RR 216, ll. 18-19
52
   3 RR 216, l. 25 – 217, l. 9
53
   3 RR 217, ll. 19-23
54
   3 RR 234, l. 18 – 235, l. 9
55
   3 RR 219, ll. 20-23
56
   3 RR 213, ll. 12-24
57
   3 RR 220, ll. 10 - 23
58
   3 RR 222, ll. 10 - 13
59
   3 RR 237, l. 22 – 239, l. 10
Appellant’s Brief                                                            Page 8
handgun cannot be heard on the video.60 Corporal Dacus further acknowledged that

the gun found inside the vehicle had not been fired and his written statement was

not accurate.61 Corporal Dacus testified that he could hear two separate incidents

of shots being fired coming, not from the Jeep Cherokee, but presumably from

another officer.62 Corporal Dacus testified that he did not see any kind of weapon

in Appellant’s hands or on his body when he was apprehended and there was no

weapon of any kind removed from the general area around which we was taken

into custody.63


       Sergeant Yount testified that he was not able to see the driver of the

vehicle.64 Sergeant Yount testified that he was familiar with Adam Crooks’s

history of running from the police, being in possession of drugs, doing some

violence, having weapons and the pursuit was just like what the White Settlement

Police Department had dealt with before with Adam Crooks.65 Sergeant Yount

further testified that he saw a person climb out of the vehicle, fall to the ground and

take off running.66 Sergeant Yount testified that he did not see any weapons in the




60
   3 RR 241, ll. 14-25
61
   3 RR 240, ll. 2-21
62
   3 RR 242, ll. 4-22
63
   3 RR 250, ll. 19-25
64
   4 RR 21, ll. 10-12
65
   4 RR 31, ll. 1-10
66
   4 RR 35, ll. 10-14
Appellant’s Brief                                                                Page 9
possession of the person67, did not see anything discarded by him, and didn’t find

anything in the area where Appellant was apprehended.68 Sergeant Yount further

testified that he did not find any drug paraphernalia on Appellant.69 When asked

about the appearance of Adam Crooks and Appellant, Sergeant Yount testified,

“[Adam Crooks] is shorter from Mr. Auvenshine. Other than that, I can’t say

there’s a whole lot of distinctive difference.”70


        The State called Heather Casey, Crime Scene Investigator with the Parker

County Sheriff’s Office71 who testified that the following items were located inside

the Jeep Cherokee: (1) firearm72; (2) two magazine clips73; (3) methamphetamine

pipe74; (4) butane lighter and spoon symbolizing drug use75; (5) box of 9 mm

ammo76; (6) three 9 mm live rounds77; (7) four .38 special rounds78; and (8) a gun

case79. Ms. Casey described the firearm found inside the vehicle as majority tan in

color.80 Ms. Casey testified that there were no fired ammunition cartridges found


67
   4 RR 35, ll. 20-23
68
   4 RR 43, l. 13 – 44, l. 6
69
   4 RR 7-9
70
   4 RR 53, ll. 19-23
71
   4 RR 96, ll. 12-18
72
   4 RR 80, l. 1-81, l. 7, 82, ll. 15-18; see State’s Exhibit No. 87
73
   4 RR 83. L. 9-84, l. 20; see State’s Exhibit No. 88
74
   4 RR 88, ll. 20-24, 90, ll. 15-18, see State’s Exhibit No.89
75
   4 RR 89, ll. 6-4; see State’s Exhibit No.74
76
   4 RR 90, l. 23 – 91, l. 4; see State’s Exhibit No. 90
77
   4 RR 91, ll. 8-11; see State’s Exhibit No. 91
78
   4 RR 91, ll. 20-23; see State’s Exhibit No. 92
79
   4 RR 92, ll. 15-20; see State’s Exhibit No. 93
80
   4 RR 117, ll. 2-8, see State’s Exhibit Nos. 40-42
Appellant’s Brief                                                            Page 10
inside the vehicle and that she did not recall seeing any ammunition in the vehicle

which looked like the hammer had struck the primer causing an indent.81 Ms.

Casey further testified she observed large bullet holes in the body of the vehicle

and the only spent cartridges recovered from the scene were all of a .223 caliber.82


       Jamie Becker, senior criminalist in the firearm and toolmark section of the

Tarrant County Medical Examiner’s Office83 testified that she conducted tests on

the firearm along with the ammunition contained in a magazine submitted to her

consisting of State’s Exhibits Nos. 87, 94, 95 and 9684. The items consist of the

box with the handgun found in the vehicle, an envelope containing 9 mm caliber

ammunition from the handgun chamber, 15 live rounds from the handgun

magazine and the magazine from the handgun.85 Ms. Becker determined that while

the .380 caliber rounds will load into the firearm from the magazine and fire, it

would fail to extract and eject.86 Ms. Becker further testified that during her

testing, every time she put a .380 round into the firearm, it would fire, but it would

not extract or eject.87 Ms. Becker testified that the ammunition did not look like it

had an imperfection of the base of the cartridge where the primer would be…the


81
   4 RR 111, l. 25 – 112, l. 16
82
   4 RR 112, l. 21 – 113, l. 10
83
   4 RR 207, ll 18-25
84
   4 RR 211, l. 22- 212, l. 14
85
   See 1RR 25
86
   4 RR 217, ll. 4-23, 218, ll. 14-18, see State’s Exhibit No. 102
87
   4 RR 219, ll. 13-17
Appellant’s Brief                                                              Page 11
read sealant looked intact88, and she did not see any indication of misfires on the

evidence submitted.89 “The bullets fired without fail.”90


       Texas Ranger Anthony Bradford testified that he conducted an investigation,

but never contacted Appellant.91 Ranger Bradford did interview Adam Crooks

who “in [Ranger Bradford’s] opinion, he was likely under the influence of

methamphetamine.”92 Ranger Bradford testified that he was not able to interview

Officer Ross who indicated he wanted an attorney.93 Officer Ross accompanied by

his attorney met with Ranger Bradford three days after the incident94 and then

delivered a written statement on February 3, 2014.95 Ranger Bradford testified that

he had determined through his investigation that the only weapon fired during the

incident was fired by Officer Ross96 and according to all of the evidence seen by

Ranger Bradford, Appellant did not fire or discharge a weapon at anyone, nor was

there a weapon on or near his person where he was shot.97


       After the State rested, trial counsel for Appellant made a motion for acquittal

on the basis that the State failed to make a prima facie case against the Appellant in

88
   4 RR 224, ll. 10 - 21
89
   4 RR 220, ll. 18-25
90
   4 RR 225, l. 7
91
   4 RR 192, ll. 15-20
92
   4 RR 193, ll. 16-20
93
   4 RR 185, ll. 23-25
94
   4 RR 186, ll. 3-15
95
   4 RR 188, ll. 8-15; See Defense’s Exhibit No. 3
96
   4 RR 178, ll. 11-19
97
   4 RR 202, ll. 19-25
Appellant’s Brief                                                              Page 12
each case.98 The motion was denied as to each case.99 The jury found Appellant

“guilty” in each case on May 29, 2015.100


       At the punishment phase of Appellant’s trial, Appellant entered a plea of

true to the enhancements contained in each case.101 The jury then sentenced

Appellant to 27 years in the Institutional Division, Texas Department of Criminal

Justice.102 On June 1, 2015, Appellant filed his Notice of Appeal with the trial

court.103 Trial Counsel requested the Court Reporter’s record be prepared and

designated that “any and all exhibits of all parties and the Court…including the

reporter’s list of the same showing court activity thereon.”104 On September 9,

2015, Appellant requested counsel be appointed for purposes of appeal105 and the

undersigned counsel was appointed.106 Counsel for Appellant filed a Motion for

New Trial on and presented said Motion for New Trial to the trial court on June 23,

2015.107 Appellant’s motion for new trial was overruled by operation of law.




98
   4 RR 226, ll. 5-11
99
   4 RR 226, ll. 10-11
100
    1 CR 101, 105
101
    6 RR 11, ll. 13-25; 1 CR 111
102
    6 RR 83, ll. 2-25; 1CR 111
103
    1 CR 115
104
    1 CR 124, 125 par. 7. It is undersigned counsel’s understanding that the original of the video
evidence admitted in the trial of this case is in the possession of the Parker County Clerk.
105
    1CR 133
106
    1 CR 137
107
    1 CR 141
Appellant’s Brief                                                                          Page 13
                          SUMMARY OF THE ARGUMENT

           The trial court erred in denying Appellant’s motion for directed verdict.

Appellant challenges the sufficiency of the evidence to establish that Appellant

possessed a firearm.        In assessing the sufficiency of the evidence, Appellant

respectfully requests the Court of Appeals to find that when all the evidence is

reviewed, no rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt.


                                       ARGUMENT

           Appellant was indicted for the offense of unlawful possession of a firearm

by a felon at premises other than his home. Due process requires that the State

prove, beyond a reasonable doubt, every element of the crime charged.108 In this

case, the State was required to prove109:


      1. A person
      2. Who had been convicted of a felony
      3. Possessed a firearm
      4. After conviction and after the 5th anniversary of the later of
      5. The person’s release from
            a. Confinement following conviction of the felony, or
            b. Supervision under community supervision, parole, or mandatory
               supervision
      6. At any location other than the premises at which the person lives.


108
    Jackson v. Virginia, 443 U.S. 307, 313 (1979); Rabb v. State, 434 S.W.3d 613, 616 (Tex.
Crim. App. 2014).
109
    See Tex. Penal Code §46.04(a)(1)
Appellant’s Brief                                                                       Page 14
       Appellant challenges the sufficiency of the evidence to establish that

Appellant possessed a firearm. A person commits an offense only if he voluntarily

engages in conduct, including an act, or an omission, or possession.110

“Possession” means actual care, custody, control or management.111 Possession is a

voluntary act if the possessor knowingly obtains or receives the thing possessed or

is aware of his control of the thing for a sufficient time to permit him to terminate

his control.112


       In this case, it cannot be shown that Appellant had exclusive possession of

the firearm because the firearm was found inside the Jeep Cherokee which was

occupied by both Appellant and Adam Crooks. This is a situation that most often

occurs when a jury is called upon to determine whether a defendant possessed a

controlled substance. It cannot be presumed that the appellant had possession over

the controlled substance unless there are other independent facts or links that tend

to connect appellant to the knowing possession of the controlled substance.113 In

cases involving unlawful possession of a firearm by a felon, the sufficiency of the

evidence is analyzed under the rules adopted for determining the sufficiency of the



110
    Tex. Penal Code §6.01(a).
111
    Tex. Penal Code §1.07(a)(39).
112
    Tex. Penal Code §6.01(b).
113
    Evans v. State, 202 S.W.3d 402, 405-406 (Tex. Crim. App. 2005).
Appellant’s Brief                                                             Page 15
evidence in cases of unlawful possession of a controlled substance.114 The State's

evidence, which may be either direct or circumstantial, must establish the accused's

connection with the firearm was more than just fortuitous.115

       If the firearm is not found on the accused's person or is not in the exclusive

possession of the accused, the evidence must affirmatively link the accused to the

firearm.116 Factors which may establish affirmative links include whether: (1) the

contraband was in plain view; (2) the accused was the owner of the car in which

the contraband was found; (3) the accused was the driver of the car in which the

contraband was found; (4) the accused was in close proximity and had ready access

to the contraband; (5) the contraband was found on the same side of the car seat as

the accused was sitting; (6) contraband was found on the accused; (7) the

defendant attempted to flee; (8) conduct by the accused indicated a consciousness

of guilt, including extreme nervousness or furtive gestures; (9) the accused had a

special connection or relationship to the contraband; (11) the place where the

contraband was found was enclosed; (12) occupants of the automobile gave

conflicting statements about relevant matters; and (13) affirmative statements

connect the accused to the contraband, including incriminating statements made by



114
    Bates v. State, 155 S.W.3d 212, 216-17 (Tex. App.—Dallas 2004, no pet.). citing Young v.
State, 752 S.W.2d 137, 140 (Tex.App.-Dallas 1988, pet. ref'd).
115
    Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App.1995).
116
    Davis v. State, 93 S.W.3d 664, 667 (Tex.App.-Texarkana 2002, pet. ref'd).
Appellant’s Brief                                                                      Page 16
the accused when arrested.117 The number of factors present is not as important as

the logical force or the degree to which the factors, alone or in combination, tend to

affirmatively link the accused to the contraband.118

       The State produced two witnesses in support of their theory that Appellant

was in possession of a firearm. The first witness was Adam Crooks. Adam Crooks

admitted to having been convicted of the following offenses119:


       2001 Assault                                              Tarrant County, Texas
       2002 Assault – Family Violence                            Tarrant County, Texas
       2004 Possession of a Controlled Substance                 Potter County, Texas
       2004 Possession of a Controlled Substance                 Tarrant County, Texas
       2004 Terroristic Threat                                   Tarrant County, Texas
       2006 Possession of a Controlled Substance                 Tarrant County, Texas
       2012 Criminal Mischief $500 < $1,500                      Tarrant County, Texas
       2012 Possession of a Controlled Substance                 Tarrant County, Texas
       2012 Bail Jumping                                         Tarrant County, Texas
       2015 Possession of a Controlled Substance                 Tarrant County, Texas
Adam Crooks acknowledged that at the time of his testimony, he was serving a two

year sentence resulting from a Tarrant County offense.120 Adam Crooks further

acknowledged that on the day of the incident, he was subject to certain parole

117
    Dixon v. State, 918 S.W.2d 678, 681 (Tex.App.-Beaumont 1996, no pet.); Watson v. State,
861 S.W.2d 410, 414-15 (Tex.App.-Beaumont 1993, pet. ref'd).
118
    See Wallace v. State, 932 S.W.2d 519, 524 (Tex.App.-Tyler 1995, pet. ref'd).
119
    3 RR 91, ll. 11-
120
    3 RR 93, l. 20 – 94, l. 4
Appellant’s Brief                                                                     Page 17
conditions including wearing of an ankle monitor which he had cut off121 and that

he really didn’t want to go back to the penitentiary on that day.122


       The State’s only other witness who identifies Appellant as the person

holding the firearm is Corporal Dacus. Corporal Dacus testified that when his

vehicle collided with the Jeep Cherokee, he stepped out of his vehicle and

recognized Crooks was a passenger and not driving at that point. Corporal Dacus

also testified that he saw the driver pull the trigger on the black semiautomatic

firearm and acknowledged that his written statement indicated that he saw the

driver firing a black in color semiautomatic handgun out the driver window at

Officer Ross.


       The evidence directly contradicted Corporal Dacus’s testimony and written

statement establishing instead that (1) none of the ammunition in the vehicle

showed any mark consistent with a misfire123; (2) there were no spent or fired

rounds found in the Jeep Cherokee124; (3) there were no shots heard, other than

those of Officer Ross, by any witness and none were audible on the in-car video

presented to the jury125; and (4) the gun located inside the vehicle was primarily tan



121
    3 RR 95, ll. 7-22
122
    3 RR 95, l. 23 – 96, l. 1
123
    4 RR 111, l. 25 – 112, l. 16, 220, ll. 18-25
124
    4 RR 111, l. 25 – 112, l. 16
125
    3 RR 241, ll. 14-25;
Appellant’s Brief                                                              Page 18
in color.126 Further, the State’s firearm expert testified that when subjected to tests,

the ammunition found inside the gun located inside the Jeep Cherokee fired

without fail and none of the submitted ammunition appeared to bear any indication

of a misfire. In fact, Ranger Bradford testified, “[t]here’s no evidence [Appellant]

fired a weapon.”127


       All of Corporal Dacus’s impressions regarding the firing of the firearm or

attempted firing of the firearm and the person in possession of the firearm were

formed within a short few seconds following a two county pursuit, and the Jeep

Cherokee spinning out then colliding with Officer Dacus’s vehicle.         As Sergeant

Yount testified “[Adam Crooks] is shorter from Mr. Auvenshine. Other than that, I

can’t say there’s a whole lot of distinctive difference.”128 The attorney for the State

even argued to the jury, “I would submit to you there’s a striking resemblance

between [Appellant] and Adam Gene Crooks”.129 During testimony Corporal

Dacus, having been presented with the evidence in this case, admitted that he was

wrong in his initial belief that a firearm had been fired at Officer Ross.130 Corporal

Dacus’s testimony at the particular time in the course of events in which he




126
    See State’s Exhibit Nos.40-42
127
    4 RR 175, ll. 16-17
128
    4 RR 53, ll. 19-23
129
    5 RR 13, ll. 24-25
130
    3 RR 240, ll. 2-21
Appellant’s Brief                                                               Page 19
identified the Appellant as the driver of the Jeep Cherokee has already been proven

inaccurate.


       Conversely, (1) members of the White Settlement Police department had

been informed that Adam Crooks would be at a residence in White Settlement; (2)

the Jeep Cherokee was located at the residence indicated; (3) Adam Crooks was an

occupant of the Jeep Cherokee; (4) Adam Crooks was known to use

methamphetamine; (5) Ranger Bradford testified that, in his opinion, Adam Crooks

was under the influence of methamphetamine at the time of the incident; (6) a pipe,

butane lighter and spoon symbolizing drug use was found inside the Jeep

Cherokee; and (7) when the Jeep Cherokee drove past Officer Ross on a city street,

prior to the initial attempt to stop the vehicle on a traffic violation, prior to any

pursuit, prior to any perception by anyone that a firearm was present, Officer Ross

positively identified the driver of the vehicle as Adam Crooks.


       “[O]nly that evidence which is sufficient in character, weight, and amount to

justify a fact finder in concluding that every element of the offense has been

proven beyond a reasonable doubt is adequate to support a conviction.”131 Even

when considered in the light most favorable to the verdict, the recorded evidence




131
   Brooks v. State of Texas, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010) (Cochran, J.,
concurring).
Appellant’s Brief                                                                       Page 20
would not allow a rational trier of fact to find that Appellant possessed the firearm

found in the Jeep Cherokee with Adam Crooks.


                                     PRAYER

       WHEREFORE, PREMISES CONSIDERED, Appellant prays that the

judgement be reversed.

                                       Respectfully submitted,




                                       Texas Bar No. 24034608
                                       1712 Santa Fe Dr.
                                       Weatherford, Texas 76086
                                       Telephone: (817) 341-7471
                                       Facsimile: (817) 599-5909
                                       Electronic Mail: brandy@oliphintlaw.com

                                       COUNSEL FOR APPELLANT
                                       DEREK KYLE AUVENSHINE




Appellant’s Brief                                                             Page 21
                          CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing instrument has

been forwarded in accordance with Texas Rules of Appellate Procedure 6.3 and

9.5 on the 29th day of October, 2015 as indicated below:

       Via Personal Service
       Mr. Don Schnebly
       Parker County District Attorney
       District Courts Building, 2nd Floor
       117 Fort Worth Hwy.
       Weatherford, Texas 76086
       Telephone: (817) 598-6124
       Facsimile: (817) 599-7628




                      CERTIFICATE OF COMPLIANCE

       The undersigned counsel for Appellant, Derek Kyle Auvenshine, certifies

that the word count of Appellant’s Brief in Cause No. 07-15-00253-CR is less than

15,000 words and in compliance with Texas Rule of Appellate Procedure 9.4(i).

Specifically, Appellant’s Brief contained 4,621words.




Appellant’s Brief                                                              Page 22
TAB A
                                            0                                                        Q
                                            CASE No. CR14-0088                       COUNT
                                                    INCIDENT No./TRN: 9139375080

THE STATE OF TEXAS                                                      §
                                                                        §
v.                                                                      §
                                                                        §
)DEREK KYLE AUVENSHINE                                                  §
                                                                        §
STATE ID    No.: TX05827902                                             §

                                     JUDGMENT OF CONVICTION BY JURY
                                                                        Date Judgment
Judge Presiding:         HoN.   DAVID CLEVELAND;                        Entered:                    5/29/2015
                         DON SCHNEBLY / ABIGAIL                         Attorney for
Attorney for State:
                                                                        Defendant:                 RICK ALLEY / JAMES WILSON
                         PLACKE / ROBERT DUBOISE
Offense for which Defendant Convicted:
UNLAWFUL POSSESSION OF A.FIREARM BY A FELON
Charging Instrument: -                                                  Statute for Offense:
INDICTMENT                                                              46.04(a)(2) Penal Code
Date of Offense:
1/14/2014
Degree of Offense:                                                      Plea to Offense:
3RD DEGREE FELONY                                                       NOT GUILTY
Verdict of Jury:                                                        Findings on Deadly Weapon:
GUILTY                                                                  N/A
Plea to 1st Enhancement                       )         Plea to 2nd Enhancement/Habitual
Paragraph:                            TRUE              Paragraph:                           TRUE
                                                        Findings on 2nd
Findings on   1st   Enhancement
                                                       Enhancement/ Habitual
Paragraph:                            TRUE             Para ra h:                            TRUE
Punished Assessed by:                      Date Sentence Imposed:                 Date Sentence to Commence:
JURY                                    5/29/2015                    5/29/2015
Punish~ent and Place 'l 7.JJli~< INSTITU.TIONAL DIVISION TDCJ
of Confinement:     o'I E._J                        .       '
                                   THIS SENTENCE SHALL RUN CONCURRENTLY.

         D    SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON COMMUNITY SUPERVISION FOR                                  NI A    •
Fine:.                                Court Costs:       Restitution:
                                                              Restitution Payable to:
$N/A                          $.302Y'.DOC0 $ N/A              0 VICTIM (see below) 0 AGENCY/AGENT (see below)
Sex Offender Registration Requirements do not apply to the Defendant. TEX. CODE CRIM. PROC. chapter 62.
The age of the victim at the time of the offense was N /A .
                If Defendant is to serve sentence in 'I'DCJ, enter incarceration periods in chronological order.
                    From 1/14/2014 to 5/29/2015 From               to              From            to
Time            From         to              From         to                From      to
Credited:
                If Defendant is to serve sentence in county jail or is given credit toward fine and costs. enter days credited below.
                N/A DAYS           NOTES: N/A
     All pertinent information, names and assessments indicated above are incorporated into the language of the judgment below by reference. ·
         This cause was called for trial in Parker County, Texas. The State appeared by her District Attorney.
         Counsel I Waiver of Counsel (select one)
C8J Defendant appeared in person with Counsrl.
D Defendant knowingly, intelligently, and voluntarily waived the right to representation by counsel in writing in open court.
         It appeared to the Court that Defendant was mentally competent and had pleaded as shown above to the charging
instrument. Both parties announced ready for trial. A jury was selected, impaneled, and sworn. The INDICTMENT was read
to the jury, and Defendant entered a plea to the charged offense. The Court received the plea and entered it of record.

                                                                                                                                  111
                                         Judgment.0088                                            Page 1 of2
                                                                                              )
TAB B
\,
     r' .


       I•
                                         0                                         a
                                                   Cause No. CR14-0088

            THE STATE OF TEXAS                             )(
            vs.                                            )(
            DEREK KYLE AUVENSHINE                          )(          PARKER COUNTY, TEXAS


                                                    COURT'S CHARGE

            MEMBERS OF THE JURY:

                    The defendant, Derek Kyle Auvenshine, stands charged by indictment with the offense of

            Unlawful Possession of Firearm by Felon, alleged to have been committed on or about the 14th

            day of January, 2014, in Parker County, Texas. The defendant has pleaded not guilty.

                    Our law provides that a person who has been convicted of a felony commits the offense

            of unlawful possession of a firearm if he possesses a firearm after conviction and before the fifth

            anniversary of the person's release from confinement following conviction of the felony or the

            person's release from supervision under community supervision, parole, or mandatory

            supervision, whichever date is later, or after such period, at any location other than the premises

            at which the person lives.

                    A "firearm" includes any device designed, made, or adapted to expel a projectile through

            a barrel by using the energy generated by an explosion or burning substance or any device

            readily convertible to that use. A pistol is a firearm.

                    The term "possess" means actual care, custody, control, or management of property.

                    A person acts intentionally, or with intent, with respect to the nature of his conduct or to a

            result of his conduct when it is his conscious objective or desire to engage in the conduct or

            cause the result.




                                                                1                                            101
..                              0                                         0
             A person acts knowingly, or with knowledge, with respect to the nature of his conduct or

     to circumstances surrounding his conduct when he is aware of the nature of his conduct or that

     the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of

     his conduct when he is aware that his conduct is reasonably certain to cause the result.

             Our law provides that a defendant may testify in his own behalf if he elects to do so.

     This, however, is privilege accorded a defendant, and in the event he elects not to testify, that

     fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to

     testify, and you are instructed that you cannot and must not refer to or allude to that fact

     throughout your deliberations or take it into consideration for any purpose whatsoever as a

     circumstance against the defendant.

            Now, if you find from the evidence beyond a reasonable doubt that on or about the 14th

     day of January, 2014, in Parker County, Texas, the defendant, Derek Kyle Auvenshine, did then

     and there, having been convicted of the felony offense of Unauthorized Use of a Motor Vehicle

     on the 20th day of October, 2000, in cause number 13725 in the 43rd Judicial District Court of

     Parker County, Texas, intentionally or knowingly possess a firearm after the fifth anniversary of

     the defendant's release from incarceration following said felony at a location other than the

     premises at which the defendant lived, as alleged in the indictment, then you will find the

     defendant guilty as charged.

            Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof,

     you will find the defendant not guilty.

            You are the exclusive judges of the facts proved, of the credibility of the witnesses, and
                    '
     of the weight to be given to the testimony, but you are bound to receive the law from the Court

     which is herein given to you and be governed thereby.




                                                     2                                            102
'   .                                  0                                         0
                   In all criminal cases, the burden of proof is on the State, and the defendant is presumed to

        be innocent until the defendant's guilt is established by legal evidence beyond a reasonable

        doubt; and in case you have a reasonable doubt of the defendant's guilt, you will acquit the

        defendant and say by your verdict "Not Guilty".
                                                    ~




                   You are instructed the grand jury indictment is the means whereby a defendant is brought

        to trial in a felony prosecution and is not evidence of guilt.           The indictment shall not be

        considered by you in passing upon the innocence or guilt of the defendant.

                   All persons are presumed to be innocent, and no person may be convicted of an offense

        unless each element of the offense is proved beyond a reasonable doubt. The fact that a person

        has been arrested, confined or indicted for, or otherwise charged with the offense, gives rise to

        no inference of guilt at his trial.

                   The law does not require a defendant to prove his innocence or produce any evidence at

        all. The presumption of innocence alone is sufficient to acquit the defendant unless the jurors are

        satisfied beyond a reasonable doubt of the defendant's guilt after careful and impartial

        consideration of all the evidence in the case.

                   The prosecution has the burden of proving the defendant guilty and it must do so by

        proving each and every element of the offense charged beyond a reasonable doubt and if it fails

        to do   SO;   you must acquit the defendant.

                   It is not required that the prosecution prove guilt beyond all possible doubt; it is required

        that the prosecution's proof excludes all "reasonable doubt" concerning the defendant's guilt.

                   In the event you have a reasonable doubt as to the defendant's guilt after considering all

        the evidence before you, and these instructions, you will acquit him and say by your verdict "not

        guilty".




                                                            3                                              103
                            0                                        0
       During your deliberations in this case, you must not consider, discuss, or relate any

matters not in evidence before you. You should not consider or mention any personal knowle~ge

or information you may have about any fact or person connected with this case which is not

shown by the evidence.

       If the jury wishes to communicate with the Court, they shall so notify the bailiff in

writing, who shall inform the Court thereof; and they may be brought before the Court, and

through their presiding juror, shall state to the Court in writing what they desire to communicate.

       After summation by counsel, you will retire and select one of your members as presiding

Juror. It is the duty of your presiding juror to preside at your deliberations and to vote with you

in arriving at a verdict. Your verdict must be unanimous. After you have arrived at your verdict,

you may use one of the forms attached hereto by having your presiding juror sign the particular

fomi that conforms to your verdict. Your sole duty at this time is to determine the guilt or

innocence of the defendant under indictment in this cause. You shall restrict your deliberations

solely to the issue of guilt or innocence of the defendant.




                                          Parker County, Texas


                                     ·-




                                                   4                                           104
'   .                             0                                        0
                                              VERDICT FORMS



               We, the jury, find the defendant, Derek Kyle Auvenshine, GUILTY of the offense of

        Unlawful Possession of Firearm by Felon, as charged in the indictment.




                                                                          -------..,.._,,___




                                                     -OR-

                                     Thiii:J ~
               We, the jury, find the d<;::fendant, Derek Kyle Auvenshine, NOT GUILTYof the offense

        of Unlawful Possession of Firearm by Felon, as charged in the indictment.
    I




                                     PRESIDING JUROR




                                                       5                                       105
                       0                                         0
                                     Cause No.CR14-0088

THE STATE OF TEXAS.                           )(
vs.                                           )(
DEREK KYLE AUVENSHINE                         )(
                                     COURT'S CHARGE

MEMBERS OF THE JURY:

       You have found the defendant, Derek Kyle Auvenshine, guilty of the offi:mse of

'Unlawful Possession of a Firearm by a Felon, as charged in the indictment. It now

becomes your duty to determine the punishment to be assessed against the defendant.

       The indictment alleges the defendant has previously been finally convicted of the

following felony offenses, to-wit:

       Felony Enhancement 1 alleges the defendant, Derek Kyle Auvenshine, prior to

the commission of the criminal offense being tried in this case, on August 21, 2009, in

the District Court in and for.Tulsa County, Oklahoma, in case number CF-08-5817, the

said Derek Kyle Auvenshine was finally convicted of the felony offense of Distribution

of Controlled Substance; and

       Felony Enhancement 2 alleges the defendant, Derek Kyle Auvenshine, prior to

the commission of the criminal offense being tried in this case, and prior to the conviction

alleged in Felony Enhancell!ent 1, on October 20, 2000, in the 43rd District Court, Parker

County, Texas, in cause number 13474 the said Derek Kyle Auvenshine was finally

convicted of the felony offense of Delivery of a Controlled Substance,              na~ely


Methamphetamine, of less than 4 grams but more than 1 gram.




                                              1

                                                                                           106
                           0                                          0
           The defendant has pleaded ''true" to the allegations in Enhancement 1 and

    Enhancement 2; therefore, you are instructed to find the allegations in Enhancement 1

    and Enhancement 2 true.

           The punishment authorized for this offense. is by confinement in the Texas

    Department of Criminal Justice-Institutional Division for Life, or for any term of not

    more than ninety-nine (99) years, or less than twenty-five (25) years.

           In arriving at your verdict on the question of punishment, you may take into

    consideration all of the evidence submitted before you under this charge and the previous

    charge, wherein you found the defendant guilty. However, you are not to refer to or               J



    discuss any matters or issues not in evidence before you.

           Under the law applicable in this case, the defendant, if sentenced to a term of

    imprisonment, may earn time off the period of incarceration imposed through the award

    of good conduct time. Prison authorities may award good conduct time to a prisoner who

    exhibits good behavior, diligence in carrying out prison work assignments, and attempts

    at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take

    away all or part of any good conduct time earned by the prisoner.

           It is also possible that the length of time for which the defendant will be

    imprisoned might be reduced by the award of parole.

           Under the law applicable in this case, if the defendant is sentenced to a term of

    imprisonment, he will not become eligible for parole until the actual time served, plus

    any good conduct time earned, equals one-fourth of the sentence imposed or 15 years,

\   whichever is less. Eligibility for parole does not guarantee that parole will be granted.




                                                  2

                                                                                                107
                       0                                          0
       It cannot accurately be predicted how the parole law and good conduct time might

be applied to this defendant if he is sentenced to a term of imprisonment, because the

application of these laws will depend on decisions made by prison and parole authorities.

       You may consider the existence of the parole law and good conduct time.

However, you are not to consider the extent to which good conduct time may be awarded

to or forfeited by this particular defendant. You are not to consider the   m~nner    in which

the parole law may be applied to this particular defendant.

       Our law provides that a defendant may testify in his own behalf if he elects to do

so. This, however, is a privilege accorded a defendant, and in the event he elects not to

testify, that fact cannot be taken as a circumstance against him. In this case, the

defendant has elected not to testify, and you are instructed that you cannot and must not

refer to or allude to that fact throughout your deliberations or take it into consideration

for any purpose whatsoever as a circumstance against the defendant.

       Evidence of extraneous crimes or bad acts other than the one charged in the

indictment in this case has been presented in the trial of this case. You cannot consider

the testimony in this_ regard in determining the proper punishment for the offense for

which you have found the defendant guilty or for any purpose unless you find and believe

beyond a reasonable doubt that the defendant committed such other acts, if any.

       You are instructed that your verdict must be unanimous and that you must not

determine the defendant's punishment by drawing lots, or by adding the punishment each

of you might think proper and dividing the result by twelve, or in any manner except by

deliberation upon the law and evidence submitted to you.




                                              3

                                                                                             108
'   1
                               0                                         0
               You are the exclusive judges of the facts proved, of the credibility of the

        witnesses and of the weight to be given to the testimony, but you are bound to receive the

        law from the Court which is herein given you, and be governed thereby.

               If the jury wishes to communicate with the Court they shall so .notify the bailiff in

        writing, who shall inform the Court thereof; and they may be brought before the Court

        and through their presiding juror, shall state to the Court in writing what they desire to

        communicate.

               When you have unanimously agreed upon a verdict, your presiding juror shall

        certify to your verdict by using the appropriate form attached hereto and signing the same

        as your presiding juror.




                                             415th Judicial District Court
                                             Parker County, Texas




                                                     4

                                                                                                   109
                           0                                   0
                                    VERDICT .FORMS



        We, the jury, having found the defendant, Derek Kyle Auvenshine, guilty of the

offense of Unlawful Possession of a Firearm by a Felon, as charged in the indictment,

and we further find the allegations in Enhancement 1 and Enhancement 2 are "true", now

assess his punishment at confinement in the Texas Department of Criminal Justice-

Institutional Division for Life.




                                            PRESIDING JUROR



                                                  -OR-




        We, the jury, having found the defendant, Derek Kyle Auvenshine, guilty of the

offense of Unlawful Possession of a Firearm by a Felon, as charged in the indictment,

and we further find the allegations in Enhancement 1 and Enhancement 2 are "true", now

assess his punishment at confinement in the Texas Department of Criminal Justice-

                                                         _z_____
Institutional Division for a term of _ _ _----{,;2,,,...'··        years (not more than 99

years and not less than 25 years).




                                                                                             110
TAB C
~'   ...   ....   ..

No.                    ~\~-Ooo'D
                                                                                 u
                                                                                                 RECfI/'Vc_-: , .· .
The State of Texas Vs. DEREK KYLE AUVENSHINE                                                            roo tfi,~ND.·.·P't.L    t:" .

                                                                                  .             lOt~rEB ;o•tCORD               q

Charge: UNLAWFUL POSSESSION OF A FIREARM BY A FELON                              COURT:L\s~l9J:i'R1IfICT PH l,: 35
                                                                                                P!.tRltifR, 't4ND D'-
                                                                                                        ,eouflfy.. rracr c
                                                                                                                   15
                                                                                           ..                     • rsx 4s   l.ffi:
                                                                                           St          .(i:r
                                                                                             ~-OePtJr.f
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

                       THE GRAND_JURY, for the County of Parker, State of Texas, duly selected, impaneled, sworn,
charged, and organized as such at the JANUARY Term A.D. 2014 of the 415TH                 Judicial District Court for
said County, upon their oaths present in and to said court at said term that
                                                  DEREK KYLE AUVENSHINE
hereinafter styled Defendant, on or about the 14th day of January, 2014, and before the presentment of this
indictment, in the County and State aforesaid,


did then and there, having been convicted of the felony offense of
Unauthorized Use of a Motor Vehicle on the 20th day of October, 2000 in
cause number 13725 in the 43rct Judicial District Court of Parker County,
Texas, intentionally or knowingly possess a firearm after the fifth
anniversary of the defendant release from incarceration following said
felony at a location other than the premises at which the defendant lived,

                                                  FELONY ENIIAHCEBEWP ONE

And it is further presented in and to said Court, that prior to the
commission of the primary offense alleged in Paragraph One by the said
Derek Kyle Auvenshine, on the 20th day of October, 2000 in the 43rd Judicial
District Court, Parker County, Texas, Cause No. 13474, the said Derek Kyle
Auvenshine was convicted of a felony, to-wit: Delivery of a Controlled
Substance, and said conviction became ,final prior to the commission of the
primary offense alleged in Paragraph One,




against the peace and dignity of the State.



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                                                                                           Ex.A



                                FELONY ENHANCEMENT ONE
And it is further presented in and to said Court, that prior to the commission of the primary offense
alleged in Paragraph One by the said Derek Kyle Auvenshine aka Derek Auyenshine, on the 21st day
of August, 2009 in the District Court of the Fourteenth Judicial District of the State of Oklahoma
sitting in and for Tulsa County, Cause No. CF-2008-5817 or CF-08-5817, the said Derek Kyle
Auvenshine aka Derek Auvenshine was convicted of a felony, to-wit: Distribution of Controlled
Substance, and said conviction be.came final prior to the commissiOn of the primary offense alleged
in Paragraph One,

                                FELONY ENHANCEMENT TWO
And it is further presented in and to said Court, that prior to the commission of the primary offense
alleged in Paragraph One and the offense set out in Enhancement One by the said Derek Kyle
Auvenshine aka Derek Auvenshine, on the 20th day ·of October, 2000 in the 43rd Judicial District
Court, Parker County, Texas, Cause No. 13474, the said Derek Kyle Auvenshine aka Derek
Auvenshine was convicted of a. felony, to-wit: Delivery of a Controlled Substance, namely
Methamphetamine, of less than four grams but more than one gram, and said conviction became
final prior to the commission of the primary offense in Paragraph one and Enhancement One,




                                                                                                   8
TAB D
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   vs.

   DEREK KYLE AUVENSHINE                                PARKER COUNTY, TEXAS
               "Defendant"

    STATE'S MOTION FOR LEAVE TO AMEND INDICTMENT TO ALLEGE PRIOR
           CONVICTIONS TO ENHANCE PUNISHMENT PURSUANT TO
                       TEXAS PENAL CODE §12.42

TO THE HONORABLE JUDGE OF SAID COURT:

      NOW COMES the ·state of Texas, represented by her District Attorney and
hereby requests leave to amend the indictment returned by the Grand Jury of Parker
County, Texas in this cause to allege the following enhancements pursuant to Texas
Penal Code §12.42:

                                           I.

                              FELONY ENHANCEMENT 1

And it is further presented in and tb said Court that prior to the commission of the
primary offense listed in the indictment by the said Derek Kyle Auvenshine on August
21, 2009, in the District Court in and for Tulsa County, Oklahoma, in case number
CF-08-5817, the said Derek Kyle Auvenenshine was finally convicted of the felony
offense of Distribution of Controlled Substance

                             FELONY ENHANCEMENT 2

And it is further presented in and to said Court that prior to the commission of the
primary offense listed in the indictment and Felony· Enhancement 1 by the said Derek
Kyle Auvenshine on Odober 20, 2000, in the 43rd District Court of Parker County,
Texas, in cause number 13474, the said Derek Kyle Auvenshine was finally convicted
of the felony offense of Delive~ of a Controlled Substance, Namely Methamphetaniine,
of less than 4 grams but more than 1 gram.

                                          II.

       The State further requests that the preceding Felony Enhancement paragraphs
replace, for all purposes, all enhancements currently detailed in the Indictment in the



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above referenced causes of action. In addition, the State requests this Court to Order
the Clerk of the Court to cross out, on the face of the Indictment, the current language
of "FELONY ENHANCEMENT ONE"

                                          III.

       The State further requests that this signed Motion and Order shall be attached
to the indictment and shall be considered part of the indictment for all purposes as if
incorporated therein verbatim. ]'he State requests that the District Clerk be ordered to
provide a copy of this signed Order and Indictment to defendant's attorney of record
and shall make a docket entry reflecting the same.


                                                  Respectfully submitted,




                                                  Assistant istrict Attorney
                                                  ~ 17 Fort Worth Hwy.
                                                  W~atherford, Texas 76086
                                                 -P) 817-598-6124
                                                  F) 817-599-7628
                                                  SBN 24034629




                             CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was sent via
email to the defendant's attorney, James Wilson and Rick Alley on 5-8-2015.




                                                 Abi~~
                                                 Assistant ~istrict Attorney




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   vs.

   DEREK KYLE AUVENSHINE
               "Defendant"


 ORDER ON STATE'S MOTION FOR LEAVE TO AMEND INDICTMENT TO ALLEGE
      PRIOR CONVICTIONS TO ENHANCE PUNISHMENT PURSUANT TO
                     TEXAS PENAL CODE §12.42


       Having considered the State's Motion for Leave to Amend Indictment, the said
Motion is hereby granted and IT IS ORDERED that this signed Motion and Order shall
be attached to the indictment and shall be considered part of the indictment for all
purposes as if incorporated therein verbatim.

      IT IS FURTHER ORDERED that the District Clerk shall provide a copy of this
signed Order and Indictment to defendant's attorney of record and shall make a
docket entry reflecting the same and that the Clerk is to cross out, on the face of the
Indictment, the current language of "FELONY ENHANCEMENT ONE" in each case.


      Signed this the   ~           ~---+---~~
                            day of __
                                                                                          \




                                              Judge ~esidihg
                                              415th Ju' "cial District ·
                                              .   :'




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