                                                                              ACCEPTED
                                                                         13-15-00085-CR
                                                         THIRTEENTH COURT OF APPEALS
                                                                CORPUS CHRISTI, TEXAS
                                                                     9/3/2015 2:39:40 PM
                                                                        Dorian E. Ramirez
                                                                                   CLERK

                 CAUSE NO. 13-15-00085-CR

                IN THE COURT OF APPEALS        FILED IN
                                       13th COURT OF APPEALS
     FOR THE THIRTEENTH JUDICIAL DISTRICT     OF TEXAS TEXAS
                                    CORPUS CHRISTI/EDINBURG,
                  CORPUS CHRISTI, TEXAS 9/3/2015 2:39:40 PM
                                            DORIAN E. RAMIREZ
                                                 Clerk



                   JAMARKAS HOLLAND
                                Appellant

                            V.

                   THE STATE OF TEXAS
                                 Appellee


APPEAL FROM THE 117th JUDICIAL DISTRICT OF NUECES COUNTY,
          TEXAS, IN TRIAL CAUSE NO. 14-CR-2827-B


                   APPELLANT’S BRIEF



                                    TRAVIS BERRY

                                    State Bar No. 24059194
                                    P.O. Box 6333
                                    Corpus Christi, Texas 78466
                                    Telephone: (361) 673-5611
                                    Facsimile: (361) 442-2562
                                    travisberrylaw@gmail.com

                                    ATTORNEY FOR APPELLANT


ORAL ARGUMENT IS REQUESTED
                   IDENTITY OF INTERESTED PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant lists the

following persons who have an interest in the appeal:

JUDGE:      Hon. Sandra Watts
            117th District Court
            901 Leopard
            Corpus Christi, Texas 78401

PARTIES:                                      COUNSEL FOR APPELLANT:

Jamarkas Holland - Appellant                  Nicholas Milam (Trial)
TDC: 01982855                                 Texas Bar No. 14033700
Garza East Unit                               P.O. Box 18485
4304 HWY. 202                                 Corpus Christi, Texas 78480
Beeville, Texas 78102

                                              Travis Berry (Appeal)
                                              Texas Bar No. 24059194
                                              P.O. Box 6333
                                              Corpus Christi, TX 78466-6333
                                              Telephone: (361) 673-5611


The State of Texas - Appellee                 COUNSEL FOR THE STATE:

Mark Skurka                                   Elizabeth Schmidt (Trial)
Nueces County District Attorney               Assistant District Attorney
Texas Bar No. 18475570                        Texas Bar No. 24079284
901 Leopard - Rm. 206
Corpus Christi, Texas 78401                   Emiliano Fragosa
Telephone: (361) 888-0410                     Assistant District Attorney
                                              Texas Bar No. 24081622



                                        ii.
                                        TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii.

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii.

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv.

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v.

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi.

         Whether the evidence was sufficient to prove Appellant used
          a knife in the commission of an assault?

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

         A.       State’s Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   1
         B.       Defense Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         4
         C.       Closing Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .          6
         D.       Allen charge by trial court and verdict . . . . . . . . . . . . . . . . . . . . . . . .                  8
         E.       Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   8

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

STANDARD OF REVIEW AND APPLICABLE LAW . . . . . . . . . . . . . . . . . . . 11

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


                                                          iii.
                                   INDEX OF AUTHORITIES
CASES                                                                                                 PAGE

Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) . 8, 16, 17

Arrevalo v. State, 489 S.W.2d 569 (Tex. Crim. App. 1973) . . . . . . . . . . . . . . . . . . 8

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010) . . . . . . . . . . . . . . . . . 11, 12

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App.2007) . . . . . . . . . . . . . . . . . . 12

Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . 13, 17

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Lockett v. State, 874 S.W.2d 810 (Tex.App.-Dallas 1994, pet. ref'd) . . . . . . . . . 14

McCain v. State, 22 S.W.3d 497 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . 14

Moff v State (April 7, 2004, CCA No. 1343-03) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Morales v. State, 633 S.W.2d 866 (Tex. Crim. App. 1982) . . . . . . . . . . . . . . . . . 14

Tucker v. State, 274 S.W.3d 688 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . 12

STATUTES AND RULES                                                                                    PAGE

Texas Family Code § 71.0021(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Family Code §71.003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Family Code § 71.005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Penal Code §22.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas Penal Code §22.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v., 1, 11, 14
                                             iv.
TO THIS HONORABLE COURT OF APPEALS:

                          STATEMENT OF THE CASE

        Appellant, Jamarkas Holland, was accused by indictment on December 4,

2014, of Aggravated Assault under Texas Penal Code §22.02. This charge was

enhanced from a second degree felony to a first degree felony based upon

Appellant’s previous felony conviction to which Appellant pled true. (CR 11, RR7

- 6)

        Appellant’s case was tried to a jury and on January 28, 2015, he was found

guilty. Appellant was sentenced by the trial court to seven (7) years in the

Institutional Division of the Texas Department of Criminal Justice. (CR 308, RR7

- 59)




                                         v.
                             ISSUE PRESENTED

      Whether the evidence was sufficient to prove Appellant used a knife in the

commission of an assault?




                                       vi.
                            STATEMENT OF FACTS

      Appellant, Jamarkas Holland, was charged by indictment of second degree

aggravated assault, in violation of Penal Code §22.02, alleged to have occurred on

August 11, 2014. (CR 11) Punishment on this charge was enhanced to a first

degree felony based on Appellant’s criminal history which carried a range of

punishment of five (5) to ninety-nine (99) years. Appellant had a trial by jury and

elected to be punished by the Court if found guilty.

      A.     State’s case

             1.    State’s opening statement

      The State believed the evidence would show that Appellant was being

driven from Portland, Texas, to Corpus Christi, Texas, by his girlfriend to be

dropped off at a homeless shelter to end their relationship. (RR4 - 18) That during

this trip, Appellant physically assaulted victim Caitlyn Dewbre during the drive

and Appellant “took out her fishing knife, stabbed it into the dashboard, and

threatened to kill her.” (RR4 - 18)

      Once they reached Corpus Christi, Texas, Appellant refused to exit the

vehicle at the homeless shelter. Ms. Dewbre then drove to the nearest convenience

store where Appellant assaulted her again, exited the vehicle, and disappeared.

(RR4 - 19) The defense reserved its opening statement.

                                         1
                2.     Victim Testimony

      The victim in this case, Kaitlyn Dewbre, testified that she and Appellant

were romantically involved and were having to live out of her vehicle in Portland,

Texas.1 She said that on August 10, 2015, Appellant had been drinking beer and

they just “slept ....and wasted the day away.” On the way to a convenience store in

Portland, Texas, they went to get more beer and when their quarrelling escalated,

Appellant punched her in the face. (RR4 - 30-31) This incident led to Ms. Dewbre

wanting to drive Appellant into Corpus Christi, Texas2, to drop him off at the

Good Samaritan shelter. (RR4 - 32)

      On the way to the Harbor Bridge, Appellant hit Ms. Dewbre again with his

fist so she stopped the vehicle hoping to see a police car. After not seeing one

drive by, and Appellant refusing to exit her vehicle, she continued on to the

shelter. (RR4 - 35) As they were reaching the Harbor Bridge, Ms. Dewbre stated

that Appellant pulled out her fishing knife, accused her of cheating, and threatened

to kill her, her entire family and their pets. (RR4 - 37)

      After Appellant refused to exit her vehicle at the Good Samaritan shelter,

Ms. Dewbre drove to the nearest convenience store. She stated that Appellant


      1
          Portland, Texas, is located within San Patricio County, Texas.
      2
          Corpus Christi, Texas is located within Nueces County, Texas.

                                                 2
again assaulted her with a roll of duct tape which caused her great pain. (RR4 - 38,

42) After they both entered and exited the convenience store, Ms. Dewbre was

able to get her cellular telephone back from Appellant and call 911. (RR4 - 40)

      The State introduced Ms. Dewbre’s 911 call into evidence and played it

back for the jury wherein Appellant is also heard telling the 911 dispatcher that he

was the victim of an assault by Ms. Dewbre. Ms. Dewbre admitted to assaulting

Appellant, but that it was done in self defense after Appellant struck her first.

(RR4 - 47) Ms. Dewbre took photos of the alleged injuries on her own cellular

telephone. These photos were introduced as evidence and published to the jury.

(RR4 48-51; RR8 5-18)

      Ms. Dewbre then testified about the pictures taken by the police the night of

the incident which included shots of inside her vehicle showing a puncture to the

dash board. (RR4 - 53-55; RR8 21-25, 31) At some time after the incident, Ms.

Dewbre found a knife cover in the trunk of her vehicle. She said was the cover of

the fishing knife Appellant grabbed and that she found it “hidden under some

stuff” in the trunk. (RR5 - 74)

      Ms. Dewbre stated that she never left Appellant because she was afraid of

him, that he would hurt her and her family. (RR5 - 103, 104) Ms. Dewbre again

recounted the trip to the Good Samaritan where she claimed Appellant hit her in

                                          3
the face and threatened her with a knife. (RR5 - 114, 115)

             3.     Non- Victim Testimony

      CCPD Officer Jason Wicks responded to the 911 call at the convenience

store and took a statement from Ms. Dewbre. He later made contact with

Appellant when responding to another call that police had a suspect. Officer

Wicks testified that Appellant was searched and no knife was found. (RR5 - 30)

      CCPD Officer Steven Brown arrived at the convenience store to assist in

taking statements from Ms. Dewbre. He testified that he observed a puncture in the

dash board and was told by someone that a “Jamarkas” had stabbed it. (RR5 - 48)

      Detective Robin Cassel was assigned to the case and presented it to the

District Attorney’s office for consideration. Detective Cassel testified that on

December 5, 2014, Ms. Dewbre brought her the knife cover she found in the trunk

of her vehicle. Detective Cassel did not test the knife cover for fingerprints to

connect anybody to it, and she never found any knife alleged to have been used by

Appellant. (RR5 - 69, 70, 71)

             B.     Defense Evidence

      The defense called Appellant who testified that he had been drinking beer

throughout the day on August 11, 2014, while Ms. Dewbre drove him around and

purchased his beer. (RR5 - 130, 136, 137, 142). At times, they would panhandle

                                          4
for money. (RR5 - 129, 195) While headed from Portland, Texas, to Corpus

Christi, Texas, tensions arose between Appellant and Ms. Dewbre about dropping

him at the Good Samaritan shelter. (RR5 - 138-143)

      Appellant stated that he refused to be dropped at the Good Samaritan. That

he grabed Ms. Dewbre’s cellular telephone while Ms. Dewbre hit the beer from

Appellant’s other hand. (RR5 - 142, 143) A fight ensues within the vehicle

wherein Appellant was struck first by Ms. Dewbre who then stopped the vehicle

on the highway. (RR5 - 143, 144) After resuming driving towards the Harbor

Bridge, Appellant “grabbed her by her hair, to hold her, to subdue her and I hit her

three times on the side of her face, with my right hand.” (RR5 - 146) He also

testified that he threw a roll of duct tape at Ms. Dewbre which hit her right arm.

(RR5 - 147)

      Appellant then exited the vehicle, grabbed all of his belongings from Ms.

Dewbre’s vehicle, and left the store with a stranger who offered Appellant a ride

in his vehicle. (RR5 - 148) Appellant exited the stranger’s vehicle a few miles

away where he was arrested soon thereafter. (RR5 - 148, 149) After calling police,

Appellant sees police and believed they were coming to aid him in response to his

911 call rather than arrest him. (RR5 - 149) Appellant testified that on August 11,

2014, Ms. Dewbre hit him “eight or nine times.” (RR5 - 150, 191)

                                          5
      During their altercation, Appellant testified that he did not threaten Ms.

Dewbre with a knife. (RR5 - 182) When shown the knife cover, Appellant

confirmed that it he recognized it and that “it goes to a knife that was in the tackle

box.....that was in the trunk of the car.” (RR5 183) Shortly after exiting Ms.

Dewbre’s vehicle, Appellant called 911 to report the incident. (RR5 - 184) The

911 call was admitted into evidence as defense exhibit #6 (RR5 - 185)

      On cross-examination, Appellant admitted that he was a foot taller than Ms.

Dewbre, that he had been to prison as a co-defendant to a aggravated assault with

a deadly weapon, that he had taken boxing training but lied upon his arrest about

his prowess and that he was under the influence of alcohol upon arrest. (RR5 -188-

190) Appellant again testified that he never pulled a knife out on Ms. Dewbre and

he never stabbed the dashboard (RR5 - 199)

      C.     Closing Arguments

      The defense started by instructing the jury that the State must prove this

alleged assault, which includes a threat with a knife, occurred in Nueces County,

Texas. (RR6 - 7) The defense argued that Ms. Dewbre’s testimony never

established the State’s jurisdictional requirement to show that this crime occurred

in Nueces County, Texas. (RR6 - 8, 9) The defense then questioned the State’s

deadly weapon allegation as no knife was ever produced nor was Appellant ever

                                          6
connected to the knife cover (RR6 - 9, 10) thus the State failed to meet its burden.

(RR6 - 14)

      The defense characterizing this event as a mutual altercation by two people

“abusing drugs and alcohol.” (RR6 - 15) The defense closed by asking the jury

consider Ms. Dewbre’s testimony about her past, abuse both physical and sexual

committed upon her by men, for a motive behind making these allegations against

Appellant. (RR6 - 16, 17)

      The State told the jury that to have a deadly weapon finding for an

aggravated assault, it would need to find that the knife was exhibited and that this

act caused Ms. Dewbre to be in fear of imminent bodily injury. (RR6 - 19, 20) The

State argued that the 911 call recordings played for the jury were sufficient to

show Ms. Dewbre’s state of fear as well as to show a lack of fear in Appellant.

(RR6 - 20, 21)

      The State believed that Ms. Dewbre’s testimony was sufficient to show that

Appellant did take out a knife and stab it into the dashboard which constitutes a

threat of deadly force. (RR6 - 23, 24) The State argued that Ms. Dewbre’s account

of events was corroborated by the physical evidence, from Ms. Dewbre’s injuries,

to the dash puncture, to the duct tape in the vehicle.

      After reminding the jury that Appellant had previously been to prison for

                                          7
aggravated assault involving a knife, the State argued that Ms. Dewbre’s recount

of events was more believable than Appellant’s. (RR6 - 27, 28)

       D.     Allen charge by trial court and verdict

       After considerable deliberation by the jury in this case, they were twice not

able to reach a verdict. (RR6 - 31) The trial court decided to employ an Allen3

charge to attempt to get the jury to have an agreement on the evidence. This

charge informed the jury that the indictment would stay in place, the evidence

would likely be the same at a retrial, and that jury would face the same issues in

deliberation. (RR6 - 32)

       The jury found the Appellant guilty of first degree aggravated assault with a

deadly weapon. (RR 6 - 35; CR 308)

       E.     Sentencing

       The State did not recall Ms. Dewbre to testify at sentencing and asked the

trial court consider her trial testimony when deciding its sentence of Appellant.

The State recommended a sentence of twelve (12) years in T.D.C.J.. (RR7 - 6)

       The defense called Dr. John Lusins, M.D., phychiastrist who has had

Appellant as a mental patient in the past. Dr. Lusins testified that Appellant had



       3
        Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). See also
Arrevalo v. State, 489 S.W.2d 569, 571-572 (Tex. Crim. App. 1973)

                                               8
multiple disorders coupled with substance abuse which inhibited his ability to

function properly on a daily basis. (RR 7 13-22) Appellant testified about his

history of drug use and mental problems and made a plea for help. (RR7 39-47)

      After considering evidence and argument, the trial court assessed a sentence

of seven (7) years in the Institutional Division of the Texas Department of

Criminal Justice. (RR7 - 59, CR 308) It is from this conviction and sentence

Appellant appeals. (CR 312)




                                         9
                       SUMMARY OF THE ARGUMENT

      The evidence presented by the State to prove Appellant used or exhibited a

knife during his altercation with Ms. Dewbre, is insufficient to prove that a knife

was actually present in the vehicle and used by Appellant during the assault. Ms.

Dewbre’s testimony was that her fishing gear was in the trunk of her vehicle. The

cover for a fishing knife was found months later in Ms. Dewbre’s trunk “under

some junk.”

      Ms. Dewbre never testified how Appellant came into possession of the

fishing knife, presumably in the trunk of her vehicle during this altercation. The

only evidence seen that could be linked to a knife was a puncture on Ms. Dewbre’s

dashboard which could have come at any time before her altercation with

Appellant and could have been made by many different types of instruments. This

lack of evidence to prove that Appellant used or exhibited a knife during this

assault has led to a conviction that is factually and legally insufficient.




                                           10
                  APPLICABLE LAW & STANDARD OF REVIEW

      TEXAS PENAL CODE § 22.02. AGGRAVATED ASSAULT - (a) A

person commits an offense if the person commits assault as defined in § 22.01 and

the person: (1) causes serious bodily injury to another, including the person’s

spouse; or (2) uses or exhibits a deadly weapon during the commission of the

assault.

      TEXAS PENAL CODE § 22.01. ASSAULT. (a) A person commits an

offense if the person: (1) intentionally, knowingly, or recklessly causes bodily

injury to another, including the person’s spouse. (b) The offense is a felony of the

third degree if the offense is committed against a person whose relationship to or

association with the defendant is described by Section 71.0021(b), 71.003, or

71.005, Family Code, if it is shown on the trial of the offense that the defendant

has been previously convicted of an offense under this chapter.4

      The Jackson v. Virginia5 legal-sufficiency standard is the only standard that

a reviewing court should apply in determining whether the evidence is sufficient

to support each element of a criminal offense that the State is required to prove

beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893 (Tex. Crim.


      4
           Appellant has a previous conviction under Chapter 22 for aggravated assault. (RR7 - 6)
      5
           443 U.S. 307 (1979)

                                                 11
App.2010)

      When reviewing sufficiency of the evidence, we view all of the evidence in

the light most favorable to the verdict to determine whether the jury was rationally

justified in finding guilt beyond a reasonable doubt. Brooks at 898-900 (plurality

opinion). We defer to the fact finder’s resolution of conflicting evidence unless the

resolution is not rational. See Jackson at 319, Clayton v. State, 235 S.W.3d 772

(Tex. Crim. App.2007). Our duty as a reviewing court is to ensure that the

evidence presented actually supports a conclusion that the defendant committed

the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.2007).

      A defendant need not file a motion for directed verdict or a motion for new

trial to preserve an appellate claim concerning the sufficiency of the evidence to

prove his guilt. He need not object to the admission of evidence in the trial court to

preserve this issue. He need not claim, in the trial court, that the method by which

the State proved an element of the offense was deficient or defective. In short, a

claim regarding sufficiency of the evidence need not be preserved for appellate

review at the trial level, and it is not forfeited by the failure to do so. Moff v. State

(Tex. Crim. App. No. 1343-03, April 7, 2004)




                                            12
                                   ARGUMENT

ISSUE RESTATED:           Whether the evidence was sufficient to prove Appellant
                          used a knife in the commission of an assault?

      The State charged Appellant with aggravated assault due to its allegation

that a knife was used in the commission of an assault upon Ms. Dewbre. (CR 11)

Thus the jury can only have found the assault to have been aggravated based upon

the presence and use of a knife during commission of the assault.

      Appellant concedes the legal sufficiency of the evidence to support his

conviction for the lesser-included offense of assault, he is asking this Court to

consider reforming his conviction to the lesser-included offense of assault. See

Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999).

      Appellant argues that Ms. Dewbre’s testimony alone is not enough evidence

upon which to support a verdict for aggravated assault. While Ms. Dewbre’s

testimony was that Appellant brandished a knife during their in-vehicle

altercation, and that Appellant used the knife to damage her dash-board, it does

not supply the necessary evidence that Appellant actually had or used a knife in

the assault. This evidence would be production of the knife itself which the State

failed to do.

      There was no testimony about any identifying details about the knife



                                          13
besides it being a fishing knife. The actual knife was not in evidence and no

testimony was presented by the victim or police that the alleged knife had the

ability to inflict death or serious injury.

       When a person is charged with using a deadly weapon, the evidence must

establish that the weapon was actually deadly. Lockett v. State, 874 S.W.2d 810,

814 (Tex.App.-Dallas 1994, pet. ref'd). Under the offense of aggravated assault

with which appellant was charged, a person commits an offense if he commits a

assault and “uses or exhibits a deadly weapon during the commission of the

assault.” Tex. Penal Code §22.02(a)(2), (CR 11). A fishing knife is for removing

fish hooks and other fishing related needs, it is not a deadly weapon by design. See

McCain v. State, 22 S.W.3d 497, 502-03 (Tex. Crim. App. 2000)6

       Even without expert testimony or a description of the weapon, the injuries

suffered by the victim can by themselves be a sufficient basis for inferring that a

deadly weapon was used. Tucker v. State, 274 S.W.3d 688 (2008); Also See

Morales v. State, 633 S.W.2d 866, 868-69 (Tex. Crim. App. 1982) (photograph of

deep slash from just underneath the victim’s earlobe across her cheek to the corner

of her mouth, closed by sutures, was sufficient to show that a deadly weapon was



       6
         “an object that has an obvious purpose apart from causing death or serious bodily injury
cannot be a deadly weapon”

                                               14
used).

         Had there been an injury consistent with that which could come from a knife

blade, this would go to support the State’s allegation that a knife was used. Here,

no injuries were consistent with that knife, only blunt trauma from Appellant’s

hands. The only “injury” consistent with a knife was the puncture on the dash

which could have come at any time and could have been made by a myriad of

other instruments.

         Appellant testified that he did not have a knife during his altercation with

Ms. Dewbre. No knife was found within Ms. Dewbre’s vehicle, nor was one found

on Appellant’s person upon arrest. The only connection to a knife of any type was

a knife cover found months later in Ms. Dewbre’s trunk “under some junk.” At no

time during Ms. Dewbre’s testimony did she describe how Appellant came into

possession of the alleged knife. She never made any indication that Appellant

went searching for this knife that was presumably in the trunk of her vehicle.

         A police officer who testified believed that the puncture in Ms. Dewbre’s

dash could have come from a knife but the State provided no expert testimony to

conclusively show what that puncture was made with or how old the puncture was.

An assumption that this puncture came from a knife does not supplant the knife

itself to support Ms. Dewbre’s allegation that Appellant exhibited a knife during

                                            15
their altercation.

       What the evidence did show was that Ms. Dewbre had fishing gear in the

trunk of her vehicle. It would be supposed that if Ms. Dewbre had a fishing knife,

that it would have been inside or near the tackle box in the trunk. This supposition

is supported by testimony about the fishing gear and the fact that Ms. Dewbre

found a fishing knife cover in the trunk months after the altercation. With this

evidence that a knife, if it existed, was likely in the trunk - no evidence from Ms.

Dewbre was shown as to how or when Appellant went to the trunk to retrieve the

knife during their altercation on the highway.

       The State failed to produce a knife at trial. No evidence or explanation as to

how Appellant obtained the knife while riding in the passenger compartment of

Ms. Dewbre’s vehicle was shown. The police officer’s belief that the dash

puncture could have come from a knife is an acceptable conclusion, except that it

cannot supplant production of the knife itself nor does it rule out that this puncture

could have come before the altercation and could have been made by a different

instrument.

       The trial court employed an Allen charge to reach a verdict from this jury as

it was twice deadlocked. (RR6 - 31) This jury was not polled after the trial. (RR6 -

35) Whatever it was that twice deadlocked this jury is unknown but common sense

                                          16
would lead one to the conclusion that the exhibition of a knife during the

altercation between Appellant and Ms. Dewbre is the issue this jury was

deadlocked on. We also never know weather the majority or the minority within

this jury before the Allen charge is the side that eventually prevailed.

      Appellant would argue that a rational person would not assume a knife was

involved here just because a person with an interest in the outcome of the trial said

there was a knife, nor would they assume that a random puncture in a dashboard

was made by a knife that was not available in evidence for review.

                                  CONCLUSION

      Lack of certain physical evidence coupled with a lack of testimony on how

Appellant was able to get the knife from the trunk while in the passenger

compartment, supports Appellant’s testimony that he did not exhibit or use a knife

in this assault. Appellant is asking this Court to reform his conviction to the

lesser-included offense of assault in the third degree. Collier v. State, 999 S.W.2d

779 (Tex. Crim. App. 1999).

                                      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

this Honorable Court reverse Appellant’s conviction for aggravated assault and

reform the conviction to assault in the third degree, remand the case to the trial

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court for re-sentencing, and to grant any other such relief to which Appellant may

be entitled.

                                             Respectfully submitted,

                                             /s/ Travis Berry
                                             Travis Berry
                                             Texas Bar No. 24059194
                                             P.O. Box 6333
                                             Corpus Christi, Texas 78466
                                             T: (361) 673-5611; F: (361) 442-2562
                                             travisberrylaw@gmail.com
                                             ATTORNEY FOR APPELLANT




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                         CERTIFICATE OF SERVICE

      This is to certify that on this September 3, 2015, a true and correct copy of

the Appellant’s Brief has been sent via e-mail to Douglas Norman, appellate

attorney for the State, at the Nueces County District Attorney’s Office, 901

Leopard - Rm. 206, Corpus Christi, Texas 78401.

      This is to also certify that on this September 3, 2015, a true and correct copy

of this brief was sent via U.S. Mail to Jamarkas Holland, Appellant, TDC:

01982855, Garza East Unit, 4304 HWY. 202, Beeville, Texas 78102.



                                              /s/ Travis Berry
                                              Travis Berry




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                      CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the

undersigned certifies this brief complies with the type-volume limitations

announced in Rule 9.4(i)(2)(B) of the Texas Rules of Appellate Procedure.

1.    The undersigned certifies that the Initial Brief contains no more than

      3,653 words in proportionately spaced typeface, an amount of

      words within the limits set forth in Rule 9.4(i)(2)(B)

2.    The brief has been prepared in proportionately spaced typeface using

      WordPerfect 12 in 14 pt. Times New Roman. Footnotes have been used and

      are all accounted for in the above word count.

3.    The undersigned acknowledges a material misrepresentation in completing

      this certificate, or circumvention of the type-volume limits states in Rule

      9.4(i)(2)(B) of the Texas Rules of Appellate Procedure, may result in the

      Court striking the brief.

                                              /s/ Travis Berry
                                              Travis Berry




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