                                                                            ACCEPTED
                                                                        01-15-00376-CR
                                                             FIRST COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                                                    9/8/2015 1:23:15 PM
                                                                  CHRISTOPHER PRINE
                                                                                 CLERK

                   CAUSE NO. 01-15-00376-CR
__________________________________________________________________
                                                   FILED IN
                                            1st COURT OF APPEALS
                 IN THE COURT OF APPEALS        HOUSTON, TEXAS
              FOR THE FIRST DISTRICT OF TEXAS
                                            9/8/2015 1:23:15 PM
                        AT HOUSTON          CHRISTOPHER A. PRINE
                                                    Clerk
__________________________________________________________________

   CHARLES EUGENE ROBERTSON V. THE STATE OF TEXAS
_________________________________________________________________

         FROM THE 452ND JUDICIAL DISTRICT COURT
                OF MCCULLOCH COUNTY, TEXAS
                 TRIAL COURT CAUSE NO. 5931
__________________________________________________________________

                      APPELLANT’S BRIEF
_________________________________________________________________

                         Michael L. Smith
                         Texas Bar No. 24072349
                         Haynes Law Firm, P.C.
                         309 N. Fisk
                         Brownwood, Texas 76801
                         Telephone: 325.646.2821
                         Facsimile: 325.643.3105
                         E-mail: msmith@haynesfirm.com
                         Attorney for Appellant


              ORAL ARGUMENT NOT REQUESTED
              IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Texas Rule of Appellate Procedure 38.1(a), the
following is a list of parties to the trial court’s judgment, as well as
the names and addresses of trial and appellate counsel:

Appellant:

     Appellant is Charles Eugene Robertson who was
     represented at the trial court and in this appeal by
     Michael L. Smith, 309 N. Fisk, Brownwood, Texas 76801.

Appellee:

     Appellee is the State of Texas who was represented at the
     trial court and is represented in this appeal by Stephen
     Lupton, Assistant District Attorney, P.O. Box 635,
     Mason, Texas 76856.




                                   ii
                               TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL................................ ii
TABLE OF CONTENTS ......................................................... iii
TABLE OF AUTHORITIES .................................................... iv
STATEMENT OF THE CASE.................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ..................... 2
ISSUE PRESENTED ............................................................... 2
STATEMENT OF THE FACTS................................................ 2
SUMMARY OF THE ARGUMENT ........................................... 7
ARGUMENT ........................................................................... 8
A. Standard of Review and Authorities. ................................. 8
B. Applicable Law to Establish Assault .................................. 9
C. The Evidence is Insufficient to Support a Conviction ......... 9
D. Conclusion ..................................................................... 12
PRAYER............................................................................... 13
CERTIFICATE OF COMPLIANCE ........................................ 13
CERTIFICATE OF SERVICE................................................ 13
APPENDIX ........................................................................... 14




                                              iii
                           TABLE OF AUTHORITIES

CASES

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ......... 8

Ervin v. State, 331 S.W.3d 49 (Tex. App.—Houston

       [1st Dist.] 2010, pet. ref’d) ............................................. 8

Kiffe v. State, 361 S.W.3d 104 (Tex. App.—Houston

       [1st Dist. 2011, pet. ref’d) ........................................... 8-9

STATUTES
TEX. PENAL CODE § 22.01 ......................................................... 9




                                            iv
                   CAUSE NO. 01-15-00376-CR
__________________________________________________________________

                   IN THE COURT OF APPEALS
               FOR THE FIRST DISTRICT OF TEXAS
                           AT HOUSTON
__________________________________________________________________

   CHARLES EUGENE ROBERTSON V. THE STATE OF TEXAS
_________________________________________________________________

         FROM THE 452ND JUDICIAL DISTRICT COURT
                OF MCCULLOCH COUNTY, TEXAS
                 TRIAL COURT CAUSE NO. 5931
__________________________________________________________________

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF
APPEALS:

     Appellant files this appeal and will show that the trial court

erred and that the trial court’s judgment should be reversed.

                   STATEMENT OF THE CASE

     Appellant Charles Eugene Robertson (“Charles”) was indicted

on August 12, 2014 for assault of a household member.           CR 5.

Charles waived a jury and was tried before the court on February

13, 2015. CR13. On February 17, 2015, the trial court entered a

Judgment of Conviction by Court finding Charles guilty of the

charge and sentenced him to ten (10) years in the Institutional

Division of the Texas Department of Criminal Justice. CR 14-17.
        Charles timely filed a Motion for New Trial and Motion in

Arrest of Judgment.       CR 29-30.     The trial court denied both on

March 25, 2015. CR 31. Charles then timely filed his Notice of

Appeal. CR 32. Charles now appeals the conviction because there

was insufficient evidence to support a conviction in this case.

             STATEMENT REGARDING ORAL ARGUMENT

        Appellant does not request oral argument.

                          ISSUE PRESENTED

        Whether the evidence was sufficient for a conviction.

                     STATEMENT OF THE FACTS

A.      State’s Direct Examination of Lori Brown

        Charles Robertson and Lori Brown met in May of 2013 and

soon began a dating relationship. RR 2:13. Charles moved into Ms.

Brown’s apartment in Brady, Texas. RR 2:14. Ms. Brown described

the relationship as a “roller coaster” with “a lot of fighting”.   RR

2:16. One of the main struggles in the relationship involved a lack

of transportation.      RR 2:16-17.      Ms. Brown worked at local

convenience store in Brady. RR 2:17. Charles took odd jobs. RR

2:14.



                                    2
     On May 19, 2014, Ms. Brown accused Charles of assaulting

her by hitting her in the face with his fist. CR 5; RR 2:21. Ms.

Brown testified that the two of them had been having a heated

argument over a period of several hours.     RR 2:17-21.     At some

point things escalated according to Ms. Brown’s testimony:

     Well, I guess we were outside and he had threatened me.
     That’s how I felt, that it was a threat, and he said for me
     to just stay outside and he was going inside, and so I felt
     like I was going to be locked out of my own apartment.
     So I went to stop the door from shutting all the say. I
     just put my hand up against it, and it bounced back and
     hit him, and when it did, I guess it angered him even
     more, so he flung the door open and that’s when he
     punched me.

RR 2:21.

     There were no witnesses to this incident other than Ms. Brown

and Charles. After the alleged assault Ms. Brown contacted a “co-

worker and … well-known friend”. RR 2:25. The two went to get

something to eat. RR 2:28. At some point the friend took a picture

of Ms. Brown. RR 2:28. Then Ms. Brown went to work. RR 2:25.

The alleged assault incident occurred at approximately 11:30 a.m.,

and Ms. Brown reported to work at 1:00 p.m. that same day—about

90 minutes after the incident. RR 2:25.



                                 3
     Ms. Brown testified that “my nose was swollen and my eye was

swollen and bloodshot” and that “I actually had vessels in the right

eye that were busted.” RR 2:26.

     Ms. Brown testified that she then called her mother, who

called her little sister, who then called the police. RR 2:27. Brady

Police Officer Shannon Hernandez arrived at Ms. Brown’s work to

get a statement. RR 2:27-28. Ms. Brown then testified that she

went to the Brady Hospital at about midnight on the night of the

incident. RR 2:30-31. Hospital staff conducted an x-ray and no

broken bones were found. RR 2:31.

B.   Cross-Examination of Lori Brown

     Lori Brown was legally married to another person at the time

she and Charles began dating. RR 2:42. Soon after Charles and

Ms. Brown moved in together they purchased a car together. RR

2:43. They both went to Abilene, Texas and bought a 2004 Crown

Victoria and put $1,500.00 down towards the purchase of the car.

RR 2:43-44. Ms Brown initially testified that she paid “all” of the

down payment “because [the money] was in my bank account.” RR




                                  4
2:44.     However, she acknowledged that Charles did pay about

$500.00 towards the car. RR 2:44.1

        The legal title to the vehicle includes the names of Charles

Robertson and Lori Brown. RR 2:44. Ms. Brown testified that she

has had possession and sole use of the car since the date of

Charles’s arrest on May 19, 2014. RR 2:45.

        Soon after May 19, 2014, Ms. Brown made a visit to see

Charles’s mother and step-father at their home in Brady, Texas. RR

2:46-48.

        Ms. Brown testified that Charles called her from jail on a

regular basis.    RR 2:47.    She further testified that she declined

some of the calls but accepted others and spoke to him. RR 2:48-

50.     At some point Ms. Brown informed Charles over the phone

while he was in jail that the relationship was over and that she was

now in a new relationship with his cousin. RR 2:48-51.

C.      Testimony of Charles’s Family

        Charles’s mother is Joyce Stafford, and she works as a

travelling nurse for Brady Health Care Services.          RR 2:80.     Ms.



1Charles testified that they both paid $750 towards the $1500 down payment.
RR 2:107.
                                    5
Stafford testified that Ms. Brown came to her house the day after

the alleged incident. RR 2:82. Ms. Brown did not appear to have

any bruising or swelling.     RR 2:84.    And Ms. Brown told Ms.

Stafford that it was the door that hit her in the face and not a fist.

RR 2:85; RR 2:88 (stating to the prosecutor on cross-examination

that “I’m telling you exactly what she told me”, “she flung the door

at him, and he automatically flung the door back open at her, and

the door hit her.”).

     Charles’s brother, Marcus Reid, testified that he saw Ms.

Brown the day after the incident at the convenience store and that

he did not see any bruising or swelling. RR 2:96.

D.   Charles’s Testimony

     After making a sealed record about the risks of testifying,

Charles decided to testify at his own trial.    RR 2:98-ff.   Charles

explained that the incident occurred because both he and Ms.

Brown were pushing a door back and forth towards each other as

they argued. RR 2:103. The door hit both parties several times as

they argued. RR 2:103.

     Charles explained that he and Ms. Brown had lots of

relationship problems and that she was preparing to leave him to go

                                  6
back to be with her husband. RR 2:105.       Charles also explained

that a large source of the problems revolved around the car. RR

2:107. Charles testified that he was arrested after the allegations

made against him on May 19, 2014, and that obviously he is unable

to use the car while being incarcerated.

                 SUMMARY OF THE ARGUMENT

     This is about two people arguing about the use of a vehicle.

Lori Brown, the alleged victim in this case, purchased a car with

Charles Robertson.    They argued a lot and disagreed about who

would have control over the car.      The car troubles ended when

Charles was arrested and jailed on allegations of assault. Charles

spent ten (10) months in county jail, was tried and convicted for

assault and sentenced to ten (10) years in prison.      Predictably,

there is no more arguing about the use of the car.

     At trial the only evidence offered to support a conviction was

the testimony of Ms. Brown and a photograph. No one was present

at the time of the alleged assault except Ms. Brown and Charles.

There is conflicting testimony about what happened—specifically,

about what Ms. Brown says happened. Charles took the stand and

vehemently denied the allegations. However, in spite of insufficient

                                  7
evidence, the trial court convicted Charles and sentenced him to ten

(10) years in the Institutional Division of the Texas Department of

Criminal Justice.

      Charles now urges this Court to reverse and enter an order of

acquittal.

                             ARGUMENT

A. Standard of Review and Authorities

      Texas courts review legal and factual sufficiency challenges

using the same standard of review.      Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010); Ervin v. State, 331 S.W.3d 49, 54

(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).        Accordingly,

evidence is sufficient to support a conviction if, considering all the

record evidence in the light most favorable to the verdict, no

rational factfinder could have found that each essential element of

the charged offense was proven beyond a reasonable doubt. Kiffe v.

State, 361 S.W.3d 104, 107 (Tex. App.—Houston [1st Dist.] 2011,

pet. ref’d).   Viewed in the light most favorable to the verdict, the

evidence is insufficient under this standard in two circumstances:

(1) the record contains no evidence, or merely “a modicum” of

evidence, probative of an element of the offense; or (2) the evidence

                                   8
conclusively establishes a reasonable doubt. Kiffe, 361 S.W.3d at

107.

       Texas courts determine whether the necessary inferences

supporting a conviction are reasonable based upon the combined

and cumulative force of all the evidence when viewed in the light

most favorable to the verdict. Id. And if an appellate court finds

the evidence is insufficient to support a conviction, the court must

reverse the judgment and enter an order of acquittal. Ervin, 331

S.W.3d at 55.

B.     Applicable Law to Establish Assault.

       Pursuant to Texas Penal Code § 22.01, the State’s indictment

alleges that Charles Eugene Robertson “on or about May 19, 2014,

did then and there intentionally, knowingly, or recklessly cause

bodily injury to Lori Ann Brown a member of the defendant’s

household….” CR 5.

C.     The evidence is insufficient to support a conviction.

       This case is ultimately about credibility.   There were no

witnesses to the alleged assault in this case beyond the accused

and the alleged victim.



                                 9
        In its closing argument, the State claimed that the alleged

victim “had no motive to make any of this up.” RR 2:120. This is

incorrect. In fact, this case is about control over a vehicle. Charles

and Ms. Brown bought a car together and both paid money for it.

But since May 19, 2014, the only person benefitting from the use of

the vehicle is Ms. Brown. Given her testimony that she works at a

convenience store and needs transportation, it is clear that Ms.

Brown did, in fact, have motive to make up a story about assault.

        Further, and very importantly, there was testimony from

Charles’s family that Ms. Brown voluntarily went to the home of

Charles’s mother and step-father the day after the incident.      RR

2:84.     Charles’s mother, Joyce Stafford, testified that she had a

close face-to-face conversation with Ms. Brown the day after the

alleged assault, and that Ms. Brown did not have any “bruising or

any swelling…in her face.” RR 2:84. In fact, Joyce Stafford testified

that Ms. Brown explained that during an argument she slammed

the door on Charles and he pushed the door back and it hit Ms.

Brown in the face. RR 2:85. This is critically important testimony

because Ms. Brown voluntarily went to the house to talk about

what had happened. Joyce Stafford is a nurse who has experience

                                  10
in observing people with physical injury, and in this particular case

she testified that there was no observable injury and that Ms.

Brown specifically told her that it was a door that hit her and not

Charles.   RR 2:85.    This conclusively establishes a reasonable

doubt. Kiffe, 361 S.W.3d at 107.

     Ms. Brown further testified as follows:      “I guess we were

outside and he had threatened me. That’s how I felt, that it was a

threat, and he said for me to just stay outside and he was going

inside, and so I felt like I was going to be locked out of my own

apartment.”   RR 2:21 (emphasis added).     Then she states:   “So I

went to stop the door from shutting all the way. I just put my hand

up against it, and it bounced back and hit him, and when it did, I

guess it angered him even more, so he flung the door open and

that’s when he punched me.” RR 2:21.

     This is quite a remarkable statement from the alleged victim.

She is saying one thing (that she feels threatened), but doing the

complete opposite (going inside the house to follow Charles and

trying to stop a door from shutting). This is not the behavior one

would expect from a person who feels unsafe and threatened—to

actually go after the alleged assailant.   Ms. Brown acknowledges

                                   11
that Charles “said for me to stay outside and he was going

inside….” RR 2:21. But she goes in after him. She clearly does not

feel threatened and she clearly has no credibility on this issue, so

she should not have any credibility on other issues of great

importance.

     Ultimately, there is simply a lack of evidence to support a

conviction:   (a) the testimony of the alleged victim and (b) a

photograph of the alleged victim taken by a friend. Further, there is

conflicting testimony about what Ms. Brown had to say about the

events.   Consequently, there is insufficient evidence to support a

conviction this Court must reverse.

D.   Conclusion

     This case is all about control over a vehicle and Ms. Brown

was able to get complete control over the car by making up these

allegations about Charles. There is contradicting testimony about

what happened and there is reasonable doubt in this case. This

Court should reverse the trial court and enter an order of acquittal

because a reasonable trier of fact would not be able to determine

that Charles Eugene Robertson committed the alleged offense

beyond a reasonable doubt.

                                 12
                                 PRAYER

     For the forgoing reasons, this Court should reverse the

judgment of the trial court and enter an order of acquittal.

                           Respectfully submitted,

                           /s/ Michael L. Smith
                           Michael L. Smith
                           309 N. Fisk
                           Brownwood, Texas 76801
                           Telephone: 325.646.2821
                           Facsimile: 325.643.3105
                           Attorney for Appellant

                 CERTIFICATE OF COMPLIANCE

     Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I
hereby certify that this brief was prepared in Bookman Old Style
14-point font, and contains 2,789 total words, and that this
number was calculated using the word count program of Microsoft
Word, which is the program used to prepare this document.

                                /s/ Michael L. Smith
                                Michael L. Smith


                    CERTIFICATE OF SERVICE

      I certify that on September 9, 2015, a true and correct copy of
the foregoing was on Stephen Lupton, 452nd District Attorney’s
Office via facsimile at 325.347.8404.



                                   /s/ Michael L. Smith
                                      Michael L. Smith



                                 13
                      APPENDIX


1. Judgment of Conviction by Court




                          14
Appendix Tab 1
                                                                                     FILED
                                                                                  TIME:   3Lf9PM
                                        CASE No. 5931
                                      INCIDENTNO./TRN#:                               FEB   I   7 2015

THE STATE OF TEXAS                             §                 IN THE DISTRICT ~I)IS'miCTCOURT
                                               §                                  McCULLOCH COU~
                                                                                      MICHELLE PlT
v.                                             §                 452ND JUDICIAL DISTRICT
                                               §
CHARLES EUGENE ROBERTSON                       §                 MCCULLOCH COUNTY, TEXAS
                                               §
STATE   ID No.: TX 05851782                    §

        JUDGMENT OF CONVICTION BY COURT - WAIVER OF JURY TRIAL

 Judge Presiding: Hon. Robert R. Hofmann           Date Judgment Entered: February 17, 2015

 Attorney for State: Tonya Spaeth Ahlschwede       Attorney for
 Stephen R. Lupton                                 Defendant: Mike Smith
 Perry Sims

 Offense for which Defendant Convicted:
 Assault Family Violence with Previous Conviction

 Charging Instrument:                              Statute for Offense:
 Indictment                                        TPC 22.01
 Date of Offense                                   Defendant's Date of Birth:
 May 19,2014                                       March 11, 1980

 Degree of Offense:                                Plea to Offense:
 Third Degree Felony                               Not Guilty
 Verdict of Court:                                 Findings on Deadly Weapon
 Guilty                                            N/A
 Plea to First Enhancement                 Plea to Second Enhancement/Habitual
 Paragraph: N/A                            Paragraph: N/A

 Findings on First Enhancement             Findings on Second Enhancement/ Habitual
 Paragraph: N/A                            Paragraph: N/A

 Punishment Assessed by:         Date Sentence Imposed:               Date Sentence to Commence:
 Judge                           February 17, 2015                    February 17,2015
 Punishment and Place
 Of Confinement:    TEN (10) YEARS INSTITUTIONAL DIVISION, TEXAS
                    DEPARTMENT OF CRIMINAL JUSTICE
                        THIS SENTENCE SHALL RUN CONCURRENTLY




                                                                                                 14
---------           ------------------




             D     SENTENCE OF CONFINEMENT SUSPENDED, DEFENDANT PLACED ON
                   COMMUNITYSUPERVISIONFOR              ~YEARS


     Fine:               Court Costs:            Restitution:            Restitution Payable to:
     $0.00               $349.00                 $0.00                   o VICTIM o AGENCY (See Below)

     Sex Offender Registration Requirements do not apply to the Defendant. TEX. conE CRIM. PRoc.
     Chapter 62. The age of the victim at the time of the offense was N/A.
                   IfDefendant is to serve sentence in TDCJ, enter incarceration periods in chronological order.
                   From May 19, 2014 to February 17, 2015 From                             to _ _ _ _ __
    TIME           From                    to                     From                     to - - - - - -
    CREDITED: From                         to                     From                     to - - - - - -
                   If Defendant is to serve sentence in county jail or is give credit toward the fine and costs,
                   enter days credited below.
                           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 McCulloch County, Texas. The State appeared by her District
    Attorney.
        ~unsel/ Waiver of Counsel (select one)
    []I" Defendant appeared in person with Counsel.
    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 plead as shown above to the
    charging instrument. Both parties announced ready for trial. The Defendant entered a plea to the charged
    offense. The Court received the plea and entered it on record.
        The Court heard the evidence submitted and argument of counsel. The Court delivered its verdict in the
    presence of Defendant and defense counsel.
        The Court received the verdict and ORDERED it entered upon the minutes of the Court.

      Punishment Assessed by Court
    D Jury. Defendant entered a plea and filed a written election to have the jury assess punishment. The
      jury heard evidence relative to the question of punishment. The Court charged the jury and it retired
      to consider the question of punishment. After due deliberation, the jury was brought into Court, and,
      in open court, it returned its verdict as indicated above.

    ~ourt.      Defendant elected to have the Court assess punishment. After hearing evidence relative to the
        question of punishment, the Court assessed Defendant's punishment as indicated above.

    D   No Election. Defendant did not file a written election as to whether the judge or jury should assess
        punishment. After hearing evidence relative to the question of punishment, the Court assessed
        Defendant's punishment as indicated above.

        The Court FINDS, beyond a reasonable doubt, Defendant committed the above offense and ORDERS,




                                                                                                                15
ADJUDGES AND DEGREES that Defendant is GUlL TY of the above offense. The Court FINDS the Pre-
sentence Investigation, if so ordered, was done according to the applicable provisions of TEX. CODE CRIM.
PROC. art. 42.12 § 9.

     The Court ORDERS Defendant punished as indicated above. The Court ORDERS Defendant to pay all
fines, court costs, and restitution as indicated above.

    Punishment Options (select one)

~onfinement in Institutional Division. The Court ORDERS the authorized agent of the State of Texas
    or the Sheriff ofthis County to take, safely convey, and deliver Defendant to the Director, Institutional
    Division, TDCJ. The Court ORDERS Defendant to be confined for the period and in the manner
    indicated above. The Court ORDERS Defendant remanded to the custody of the Sheriff of this county
    until the Sheriff can obey the directions of this sentence. The Court ORDERS that upon release from
    confinement, Defendant proceed immediately to this county's District Clerk's Office. Once there, the
    Court ORDERS Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court costs,
    and restitution as ordered by the Court above.

D County Jail--Confinement I Confinement in Lieu of Payment. The Court ORDERS Defendant
    immediately committed to the custody of the Sheriff of McCullochCounty, Texas on the date the
    sentence is to commence. Defendant shall be confined in the McCullochCounty Jail for the period
    indicated above. The Court ORDERS that upon release from confinement, Defendant proceed
    immediately to this county's District Clerk's Office. Once there, the Court ORDERS Defendant to pay,
    or make arrangements to pay, any remaining unpaid fines, court costs, and restitution as ordered by the
    Court above.

D Fine Only Payment. The punishment assessed against Defendant is for a FINE ONLY. The Court
  ORDERS Defendant to proceed immediately to the Office of the McCulloch County DISTRICT CLERK.
  Once there, the Court ORDERS Defendant to pay or make arrangements to pay all fines and court costs
    as ordered by the Court in this case.

  hecution I Suspension of Sentence (select one)
~The Court ORDERS Defendant's sentence EXECUTED.

D The Court ORDERS Defendant's sentence of confinement SUSPENDED. The Court ORDERS defendant
    placed on community supervision for the adjudged period (above) so long as Defendant abides by and
    does not violate the terms and conditions of community supervision. The order setting forth the terms
    and conditions of community supervision is incorporated into this judgment by reference.

    The Court Orders that Defendant is given credit noted above on this sentence for the time spent
incarcerated.




                                                                                                       16
t




                       Furthermore, the followine special findines or orders apply:
    $ 41   P9,- reparation for Court Appointed Attorney fee to McCulloch County, 199 Courthouse Square,
    Brady, Texas, 76825.

    Signed and entered on February 17,2015.

    Clerk: Michelle Pitcox


                                                            Judg~




                                                                                                  17
