                                                                                         ACCEPTED
                                                                                     12-15-00068-CR
                                                                        TWELFTH COURT OF APPEALS
                                                                                      TYLER, TEXAS
                                                                               7/20/2015 12:00:00 AM
                                                                                       CATHY LUSK
                                                                                              CLERK

           CASE NO.:12-15-00068-CR & 12-15-00069-CR
____________________________________________________________
                                                            RECEIVED IN
                             IN THE                   12th COURT OF APPEALS
                                                           TYLER, TEXAS
                  TEXAS COURT OF APPEALS
                                                      7/19/2015 8:51:49 PM
            TWELFTH SUPREME JUDICIAL DISTRICT CATHY S. LUSK
                                                               Clerk
                          TYLER, TEXAS
____________________________________________________________
          On Appeal from Cause No. F1421007 & F1521497
                    420th Judicial District Court
                    Nacogdoches County, Texas
____________________________________________________________  7/19/2015
                    ANDREW PJ WHITAKER,
                                            Appellant
                                VS.
                               THE STATE OF TEXAS
____________________________________________________________
                               BRIEF OF APPELLANT
____________________________________________________________
                                              Respectfully submitted,

                                              Winfred A. Simmons, II
                                              Attorney for Appellant
Pursuant to Rule 75 of the Texas Rules        115 West Shepherd Avenue
of Appellate Procedure, Appellant             Lufkin, Texas 75904
does requests oral argument.                  (936) 632-3242- Telephone
                                              (936) 632-4325- Facsimile
                                              Texas Bar No. 00794636
                                              lawyersimmons@consolidated.net
                        IDENTITY OF PARTIES AND COUNSEL

       Pursuant to Tex. R. App. P. 55.2 (a), the following is a list of parties to the trial
court’s judgment and the names and addresses of trial and appellate counsel.

       1.     Andrew PJ Whitaker, Appellant

       2.     John Boundy
              Counsel for Appellant at trial
              2428 Douglas Road
              Nacogdoches, Texas 75961
              (936) 371-9484

       3.     Winfred A. Simmons, II
              Counsel for Appellant on Appeal
              115 West Shepherd Avenue
              Lufkin, Texas 75904
              (936) 632-3242

       4.     Cristian Lane
              Counsel for The State of Texas at Trial
              Assist. District Attorney for Nacogdoches County
              101 W. Main Street
              Nacogdoches, Texas 75961
              (936) 560–7766

       5.     Andrew Jones
              Counsel for The State of Texas on Appeal
              Assist. District Attorney for Nacogdoches County
              101 W. Main Street
              Nacogdoches, Texas 75961
              (936) 560–7766

       6.     The Honorable Edwin A. Klien
              Trial Judge, 420th Judicial District Court
              Nacogdoches County
              101 W. Main Street
              Nacogdoches, Texas 75961
              (936) 560–7848


                                               i.
                                                TABLE OF CONTESTS

                                                                                                             PAGE


Identify of All Parties............................................................................           i.

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

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

Statement of the Case...........................................................................              v.

Issues Presented....................................................................................          v.

Statement of Facts.................................................................................           v.

Summary of Argument..........................................................................                 vi.

Argument..............................................................................................        1.

Prayer....................................................................................................    11.

Certificate of Service............................................................................            11.




                                                                   ii
                               INDEX OF AUTHORITIES

CASES:                                                                                 PAGE

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).                                2,3,4
Banks v. State, 530 S.W.2d 940 (Tex. Crim. App. 1975).                                    9
Burkholder v. State, 660 S.W.2d 540 (Tex. Crim. App. 1983).                              6
Burks v. United States, 437 U.S. 1, 57 L.Ed.2d 1, 98 S.Ct. 2141 (1978).                  6
Copeland v. State, 747 S.W.2d 14 (Tex. App.– Houston [1st. Dist.] 1988, no pet.)          6
Gardner v. State, 780 S.W.2d 259 (Tex. Crim. App. 1989).                                2, 6
Green v. Massey, 437 U.S. 19, 57 L.Ed.2d 15, 98 S.Ct. 2151 (1998).                       7
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).                  6
King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997).                                    9
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997).                                   3
McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989).                                2,5
Lynch v. State, 643 S.W.2d 737 (Tex. Crim. App. 1983).                                 2,4,5,8
Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998).                                    2,3,4
Rankin v. State, 995 S.W.2d 210 (Tex. App. – Houston [14th Dist.] 1999, pet. ref’d).      9
Ryland v. State, 101 S.W.3d 107 (Tex. Crim. App. 2003).                                   7
Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995)                             3
Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 91984).            7
Skillern v. State, 890 S.W.2d 849 (Tex. App. – Austin 1994, pet. ref’d).                  9
Soliz v. State, 97 S.W.3d 137 (Tex Crim. App. 2003).                                      9
State v. Blankenship, 170 S.W.3d 676 (Tex. Crim, App. 2005).                               9
Van Gulder v. State, 709 S.W.2d 178 (Tex. Crim. App.) cert. denied,
                                467 U.S. 1169, 106 S.Ct. 2891,90 L.Ed. 2d 978 (1986)     6


RULES AND STATUTES

Texas Penal Code Ann. 1.07 (35)                                                          4
Texas Penal Code Ann. 31.07                                                              2
Texas Rules Appellant Procedure 44.2                                                    9, 10




                                                 iii.
           CASE NO.:12-15-00068-CR & 12-15-00069-CR
____________________________________________________________
                             IN THE
                  TEXAS COURT OF APPEALS
            TWELFTH SUPREME JUDICIAL DISTRICT
                          TYLER, TEXAS
____________________________________________________________
          On Appeal from Cause No. F1421007 & F1521497
                    420th Judicial District Court
                    Nacogdoches County, Texas
____________________________________________________________
                    ANDREW PJ WHITAKER,
                                            Appellant
                                VS.
                             THE STATE OF TEXAS
____________________________________________________________
                              BRIEF OF APPELLANT
____________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
                             STATEMENT OF THE CASE
      In the January term of 2015, Appellant was indicted on one count of Unauthorized

Use of a Motor Vehicle and one count of Evading Arrest. At the close of evidence, on

February 25, 2015, Appellant requested a motion for directed verdict based on the State’s

failure of prove venue. The Trial Court denied Appellant’s motion. On February 25,

2015, Appellant was found guilty of one count of Unauthorized Use of a evading arrest

                                           iv.
and one count of Evading Arrest. Appellant was sentenced to thirteen (13) years

confinement in the Texas Department of Criminal Justice– Institutional Division on the

evading count and two (2) years state jail on the unauthorized use count. It is from these

verdicts which Appellant appeals.

       For Purposes of clarity, the Appellant will be refer to the Clerk’s Record as “CR”

and the Reporter’s Record as “RR” and cite the volume and page number in order to not

confuse the two records when citing such documents. When referencing Defense

Exhibits, the abbreviation “DE” will be used.

                                    ISSUES PRESENTED

       1. Whether the appellant was deprived of a fair trial when defense of mistake of
fact was raised by evidence but charge was submitted without objection or request?

      2.Whether the evidence of unauthorized use of a motor vehicle presented at trial
was sufficient to withstand challenge on appeal?

       3.Whether the failure to request an instruction on the defense of mistake of fact
constitutes ineffective assistance of counsel?

       4.Whether appellant was sufficiently harmed by the failure of proof of venue to
reverse and remand for a new trial?


                             STATEMENT OF THE FACTS

       During the January term 2015, Appellant was indicted on one count of

Unauthorized Use of a Motor Vehicle and one count of Evading Arrest. The State

alleged, in its indictment, Appellant committed Unauthorized Use by “intentionally and

knowingly” operate a motor-propelled vehicle without the effective consent of Jesus

                                          v.
Barrios-Quezada .[CR. Vol. 1, Pg. 2]. Appellant does not dispute he was is possession of

the vehicle, but denied he knowingly possessed the vehicle without consent of the actual

owner.

         The State called several witness, including the alleged victim, Jesus Barrios-

Quezada, who testified he did not give appellant or anyone else permission to possess his

vehicle. [RR. Vol. 3, Pg. 18, ln. 17–19]. The remaining witnesses were victim’s sister

Guadalupe Barrios who testified she noticed the vehicle was missing. The remaining

witnesses, Austin McDonald, Frank Rudisill and Albert Patterson, all officers from

Nacogdoches law enforcement who testified that Appellant fled from law enforcement.

         On February 25, 2015, Appellant was found guilty by jury and the same jury

sentenced Appellant to serve thirteen (13) years confinement in the Texas Department of

Criminal Justice– Institutional Division for evading and two (2) years confinement in the

State Jail for unauthorized use. It is from these verdicts which Appellant appeals.

                              SUMMARY OF THE ARGUMENT

         The Trial Court erred failing to charge the jury on the defense of mistake of fact.

Further, the evidence is insufficient to justify a verdict of guilt beyond a reasonable doubt

as to unauthorized use based upon the total lack of sufficient proof of an essential

element of the offense, namely knowledge. The State failed to prove proper venue as to

either charge which harmed appellant requiring remand.



                                              vi.
                                      ARGUMENT

      Whether the appellant was deprived of a fair trial when defense of mistake of
fact was raised by evidence but charge was submitted without objection or request?

       The appellant was indicted for unauthorized use of a motor vehicle. [CR. Vol 1.,

Pg. 77]. A person commits the offense of unauthorized use of a motor vehicle if he

intentionally or knowingly drives or operates a motor vehicle without the effective

consent of the owner. Tex. Penal Code 31.07. Appellant admitted to driving another’s

vehicle. However, the defendant testified that he had received the keys and believed he

had permission to drive from an individual in possession of the vehicle and to which

appellant believed he had effective consent of the individual he [appellant] believed to be

the “owner”. [RR. Vol. 3. Pg.77]. A defendant’s knowledge of the lack of consent is one

of the elements which must be proven. Posey v. State, 966 S.W.2d 57

( Tex. Crim. App. 1998), McQueen v. State, 781 S.W.2d 600 (Tex. Cr. App. 1989);

Gardner v. State, 780 S.W.2d 259 ( Tex. Cr. App. 1989). The Court has held that such

evidence raises the defense of mistake of fact. The court’s charge should instruct the jury

on the law of mistake of fact. Lynch v. State, 643 S.W.2d 737 (Tex. Cr. App. 1983).

Appellant’s defense was obvious, he believed he had consent of the owner to possess the

vehicle.

       At this point, appellant must concede that the Posey Court has also held that

omission of a defensive charge on mistake of fact does not deny appellant a fair trial.

Posey at 71. However, this ruling stands in stark contrast to a long line of case law and

                                            -1-
precedent. In Williams, the defendant was convicted of aggravated kidnaping. The issue

arose as to the defensive issue of “release in a safe place”. The Court concluded there was

sufficient evidence adduced at trial, without defendant’s request, to raise the issue as a

legal defense. Therefore, the issue should have been submitted to the jury and the trial

court’s failure to do so was error. Having found “error in the charge” due to the omission

of the defensive issue, the next step was to apply harm analysis under Almanza. Posey at

76 (quoting Williams v. State, 851 S.W.2d 282, 286-89 (Tex. Crim. App. 1983)).

Almanza specifically refers to omissions of defensive theories in the charge absent a

request or objection. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr. App. 1985). A

determination of egregious error analysis does not come into play unless defendant failed

to object to the charge. Posey v. State, 966 S.W.2d 57, 76 (Tex.Crim. App. 1998).

Despite such precedent, the majority in Posey ruled that defensive issues do not become

applicable to the case unless the defendant either request an instruction or objects to the

omission the instruction. Further, the Court of Criminal Appeals have never articulated

such a principle. Id at 71. In the case at issue, appellant testified uncontradicted that he

was unaware that he [appellant] did hot have the consent of the actual owner of the

vehicle. Appellant specifically testified an individual to whom he believed to be the

owner of the vehicle gave him the keys and permission to possess and operate the subject

vehicle. In Posey the appellant failed to testify and thus Posey should be considered

distinguishable and not controlling. An issue does not become ‘applicable to the case’ by

virtue of a party requesting an instruction but rather becomes applicable to the case

                                             -2-
through-out the course of trial, when raised by the evidence. Id at 71. The responsibility

for deciding what law is applicable to the case falls squarely on the shoulders of the trial

judge.

         Further, in evaluating prosecution cases, appellate courts do not look to the actual

charge but instead make a determination based on a “hypothetically correct” charge.

Malik v. State, 953 S.W.2d 234 (Tex.Crim. App. 1997). An appellant court can

determine the theory of prosecution, and accordingly, the law applicable to the case,

based on the evidence presented [at trial], so as to fashion a ‘hypothetically correct

charge”. Yet for defensive theories, law only becomes “applicable to the case” by virtue

of defense request that it be included in the charge. See e.g., Sanders v. State, 817 S.W.2d

688 (Tex. Crim. App. 1991). Such differentiation between prosecution and defensive

issues leads to inequitable treatment and ominous results. It is ‘error’ in the jury charge

due to the omission of a defense raised by the evidence. Williams v. State, 851 S.W.2d

282 (Tex.Crim. App. 1993). It was error to omit a mistake of fact instruction to the jury

in this case. The omission of any defensive issue in the jury charge is error that is subject

to Almanza analysis.

HARM ANALYSIS

         In Almanza the Court of Criminal Appeals, the Court set out the basic framework

for analysis on appeal for preserved and unpreserved “errors’ in the jury charge. This

framework is based on the Court’s interpretation of Article 36.19. The Court interpreted

that there are two standards of review. One standard for “error appearing on the record

                                              -3-
that was calculated to injure the defendant” applies to errors in overruling objections to

the charge which were presented to the trial court. A second, an independent basis, for

reversal exist if the error arises even though not timely objected to, which is so egregious

that it creates such harm that denies the defendant a fair and impartial trial. Posey, at 67.

(Womack, J., concurring).

       In the instant case, the likelihood the jury’s decision was adversely affected by the

error is great. In an unauthorized use of a motor vehicle case, mistake of fact is raised if

the defendant received the keys from someone who was apparently authorized to give

them. In such a case, a mistake of fact instruction is required in order to prevent the

crime of unauthorized use from being a strict liability crime. See Lynch v. State, 643

S.W.2d 737, 738 (Tex. Crim. App. 1983). Here, appellant’s uncontradicted testimony

was that he [appellant] received to keys to the vehicle from an individual known as

“Rummy”. [RR. Vol. 3. Pg.77]. “Owner” means a person who has title to the property,

possession of the property, whether lawful or not,....”. Tex. Penal Code Ann. 1.07 (35).

“Rummy” met the definition of an “owner” — “Rummy had possession of the property,

whether lawful or not....” . A defendant is entitled to affirmative submission of a defense

raised by the evidence. Lynch at 738. This evidence raised the defense of mistake of fact.

The evidence reflects that the only defense that was presented was appellant believed he

had effective consent from the “owner” of the vehicle. However, the defense counsel did

not object or request a jury instruction on mistake of fact. [RR. Vol. 3. Pg. 92, ln. 5–9].

The jury was not instructed on appellant’s sole defense. Again, a mistake of fact

                                             -4-
instruction is required in order to prevent the crime of unauthorized use from being a

strict liability crime. The jury was not instructed it could find that “Rummy” was an

“owner” within the meaning of the statute. The State must prove, at a minium, that the

defendant knew he lacked consent of the owner or owners of the vehicle. McQueen, 781

S.W.2d at 604 n. 5. Considering the absence of a mistake of fact instruction, the jury had

to convict even if the jury believed appellant received the keys and permission to drive

the vehicle from “Rummy”. A trial in which only one possible result is possible, even if

the jury believed the appellant, cannot be fair and impartial. In the instant case, appellant

suffered egregious harm as a result the failure to properly instruct the jury.

       The Appellant prays this Honorable Appeals Court sustain this point of error,

reverse and render a judgment of acquittal.

      Whether the evidence of unauthorized use of a motor vehicle presented at trial
was sufficient to withstand challenge on appeal?

       In reviewing sufficiency of the evidence, the evidence is analyzed in the light most

favorable to the verdict to determine if a rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 318–19, 99 S.Ct. 2781, 2787–88, 61 L.Ed.2d 560 (1979).

       Here, the evidence shows that the appellant was unaware that he did not have

consent of the actual owner of the vehicle and could not be guilty of unauthorized use of

a motor vehicle. Appellant testified he received the keys to the vehicle from an individual

known to appellant as “Rummy”. [RR. Vol. 3. Pg.77]. There is no evidence appellant


                                              -5-
knew the vehicle was stolen. No indication on or inside the vehicle that a theft had

occurred. Appellant operated the vehicle by using the ignition keys. The State’s proof

showed no evidence that appellant knew he did not have the owner’s consent. Texas law

requires such evidence. Gardner v. State, 780 S.W.2d 259 ( Tex. Crim. App. 1989).

Where an appellant puts on uncontradicted evidence establishing a defense, no rational

trier of fact could find appellant guilty beyond a reasonable doubt, appellate courts must

reverse. Van Guilder v. State, 709 S.W.2d 178, 183 (Tex. Crim. App.), cert. denied, 476

U.S. 1169, 106 S.Ct. 2891, 90 L.Ed.2d 978 (1986); Copeland v. State, 747 S.W.2d 14,

16–17 (Tex.App.– Houston[1st Dist.] 1988, no pet.). Where the evidence is insufficient

to sustain a conviction on appeal, the court must reverse the conviction and order a

judgment of acquittal. Burkholder v. State, 660 S.W.2d 540, 542 (Tex. Crim. App. 1983).

       Once Appellant has demonstrated that the verdict is found insufficient on all

issues, the verdict should not and cannot be allowed to stand. In Burks v. United States,

437 U.S. 1, 57 L.Ed.2d. 1, 98 S.Ct. 2141 (1978) and Greene v. Massey, 437 U. S. 19, 57

L.Ed.2d 15, 98 S.Ct. 2151 (1978), the Supreme Court held that retrial is barred after an

appellate determination of insufficient evidence. Therefore, the Appellant prays this

Honorable Appeals Court sustain this point of error and reverse the trial court’s ruling

and prays the case against Appellant be dismissed or, in the alternative, that it be

remanded with instruction that Appellant’s be acquitted.




                                             -6-
                    INEFFECTIVE ASSISTANCE OF COUNSEL
       Whether the failure to request an instruction on the defense of mistake of fact
constitutes ineffective assistance of counsel?

       To show, on appeal, ineffective assistance of counsel, Appellant must demonstrate

that trial counsel’s performance was deficient because it fell below an objective standard

of reasonableness, and, but for counsel’s errors, the result of the proceeding would have

been different See Strickland v. Washington, 466 U.S.668, 688, 692, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); Ryland v. State, 101 S.W.3d 107, 109–10 (Tex. Crim. App. 2003). A

reviewing court must presume that counsel’s performance was reasonably effective. Id, at

694, 104 S.Ct. At 2068.

       In the present case, the only defense presented was the appellant believed he had

consent of the owner to possess the vehicle. Despite this obvious fact, trial counsel failed

to request a jury instruction as to appellant’s mistaken belief. Appellant’s sole defense

was that he was under the reasonable but mistaken belief that he [appellant] had

permission of the “owner’ of the vehicle to possession and drive the vehicle. A

reasonably effective trial counsel should have sought a mistake of fact instruction. A

mistake of fact instruction is required in order to prevent the crime of unauthorized use

from being a strict liability crime. The Court of Criminal Appeals has held that such

evidence raises the defense of mistake of fact, and the trial court’s charge should instruct

the jury on the law of that defense. See Lynch v. State, 643 S.W.2d 737, 738 (Tex. Crim.

App. 1983). In this case, a properly submitted jury instruction, the jury could, if believed,


                                             -7-
find appellant not guilty because a proper instruction would allow the jury to negate the

required culpable mental state for unauthorized use of a motor vehicle. Given trial

counsel’s failure, conviction became a foregone conclusion because appellant’s only

defense was, not that he had effective consent of the actual owner, but that he had

consent of “Rummy”. Since the charge as submitted, required the jury to convict, even if

they believed appellant received the vehicle keys and permission to drive from “Rummy”.

The failure by trial counsel to request a mistake of fact instruction, allowed the jury to

convict even if they [the jury] believed appellant’s uncontradicted testimony. The charge

allowed by trial counsel to be submitted to the jury did not instruct the jury that the jury

could find “Rummy” was an “owner” within the definition of an “owner” for the

unauthorized use of a motor vehicle statue.

       A reasonably effective trial counsel would have sought a mistake of fact jury

instruction. The failure to seek such an instruction, particularly under these facts, so

egregiously harmed and prejudiced Appellant’s defense, rendered counsel ineffective.

The likely result would have been different “but for” trial counsel’s failure to seek a

proper mistake of fact instruction.

       Therefore, the Appellant prays this Honorable Appeals Court sustain this point of

error and reverse the trial court’s ruling and prays the case against Appellant be dismissed

or, in the alternative, that it be remanded with instruction that Appellant’s be granted a

new trial.



                                              -8-
      Whether appellant was sufficiently harmed by the failure of proof of venue to
reverse and remand for a new trial?

       Venue means the place where the case may be tried. Soliz v. State, 97 S.W.3d 137,

141 (Tex.Crim.App. 2003). Venue is not constituent element of the offense charged.

Skillern v. State, 890 S.W.2d 849, 860(Tex.App.–Austin, 1994, pet. ref’d). Venue need

only be proved by preponderance of the evidence. See Tex. Code Crim Pro Ann. Art.

13.17 (West 2005); Banks v. State, 530 S.W.2d 940, 943 (Tex. Crim. App. 1975). It is

presumed that venue was proved at trial unless disputed at trial or the record affirmatively

shows the contrary. See Tex. R. App. 44.2 (c)(1). A defendant’s motion for directed

verdict which specifically challenges venue raises the issue of venue on appeal. Failure to

prove venue as charged [in the indictment] is reversible error. Black v. State, 645 S.W.2d

789, 791 (Tex. Crim. App. 1983). Failure to prove venue when the issue is raised at trial

is now subject to a harm analysis rather than automatic reversal of the conviction. State v.

Blankenship, 170 S.W.3d 676, 683 (Tex. Crim. App. 2005). A determination of the

harm is whether it affected [appellant’s] substantial rights. See Tex. R. App. P. 44.2(b). A

substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex.

Crim, App. 1997); Rankin v. State, 995 S.W.2d 210, 215 (Tex.App. –Houston [14th Dist.]

1999, pet. ref’d).

       Here, appellant raised the issue of venue via timely motion for directed verdict.

The State is not entitled to the presumption on appeal that venue was properly proven.

                                             -9-
See Tex. R. App. 44.2 (c). Appellant argues the State failed to prove venue within

Nacogdoches County, State of Texas. [RR. Vol. 3. Pg.92, ln. 12-21]. Appellant placed

venue at issue via his motion for directed verdict. Venue must be proven. The State never

requested the court take judicial notice of any venue in this cause. No proof of venue to

rises to the level of a preponderance of evidence that venue is proper in Nacogdoches

County, State of Texas. There is no evidence whatsoever connecting either offense

charged [UUMV or Evading] to Nacogdoches County, Texas. In a country as large as the

United States, it is beyond the realm of reasonability that there could only be on

“Nacogdoches County” in a country of this size.

       Your appellant is further and more egregiously harmed by the State not having to

carry its burden of proof as alleged in the charging instrument. Prosecutors would no

longer be require to prove that the alleged crime was committed within the actual

confines of a particular county or even state. Allowing with approval such a “close

enough” standard as to proper venue, enables the State to forum shop within Texas.

Following this “close enough” standard, defendants could never be assured of defending

against allegation within the geographical confines of any one particular county.

Prosecutors would merely determine which counties were best suited to gain convictions

according to which counties were most likely to convict of a particular crime and

prosecute the crime in that venue. Now a defendant is subject to be tired anywhere in the

State without any recourse.



                                            -10-
                                        PRAYER

       WHEREFORE, PREMISE CONSIDERED, the Honorable Appeals Court reverse

the judgment of the Trial Court and remand this cause with instructions that Appellant’s

be acquitted.

                                                  Respectfully submitted,

                                                  ________________________________
                                                  Winfred A. Simmons, II
                                                  Attorney for Appellant
                                                  115 West Shepherd Avenue
                                                  Lufkin, Texas 75904
                                                  (936) 632-3242 -Telephone
                                                  (936) 632-4325-Facsimile
                                                  TBN: 00794636
                                                  Email: lawyersimmons@consolidated.net

                            CERTIFICATE OF SERVICE

      I DO HEREBY CERTIFY that on July 19, 2015, a true and correct copy of this
Appellant’s Brief was served on all attorney of record or parties.

                                                  Andrew Jones
                                                  Counsel for The State of Texas on Appeal
                                                  Assist. District Attorney for Nacogdoches
                                                  County
                                                  101 W. Main Street
                                                  Nacogdoches, Texas 75961
                                                  (936) 560–7766
                                                  _______________________________
                                                  Winfred A. Simmons, II
                                                  Attorney for Appellant

                         CERTIFICATE OF COMPLIANCE

       I certify that the number of words in this document is 4090.
                                                  _____________________________
                                                  Winfred A. Simmons, II


                                           -11-
