                                                                                     PD-1472-14
                                                                    COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
April 8, 2015                                                      Transmitted 4/8/2015 2:47:23 PM
                                                                     Accepted 4/8/2015 3:23:17 PM
                                                                                      ABEL ACOSTA
                                                                                              CLERK


                IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS AT AUSTIN
                  ______________________________________

                              No. PD-1472-14

                      RICHARD LEE RABB, Appellant

                                    v.


                     THE STATE OF TEXAS, Appellee




                       APPELLANT’S REPLY BRIEF




                                         Respectfully submitted,

                                         THE LAW OFFICES OF GREG GRAY
                                         1012 Ridge Road
                                         Rockwall, Texas 75087
                                         (972) 771-5525
                                         (972) 772-7780 FAX




                                         ________________________
                                         Greg Gray
                                         SBN: 00787585
             NAMES OF THE PARTIES TO THE TRIAL COURT JUDGMENT

        Pursuant to T.R.A.P. 38.2(a)(1)(A), Appellant does not list the parties as there is no

necessity to correct the State’s list.




                                               i
                              TABLE OF CONTENTS

INDEX OF AUTHORITIES…………………………………………………………………… iii

STATEMENT REGARDING ORAL ARGUMENT………………………………………….. 1

STATEMENT OF THE CASE………………………………………………………………… 1

ISSUES PRESENTED…………………………………………………………………………. 1

    I.      Contrary to the State’s position, “Attempt” is not always found when
    a guilty verdict on the completed offense is rendered.

    II.   Based on the indictment in this case which alleges intentionally and
    knowingly, there is no proof of specific intent to destroy the baggie.

    III.   Remedy is Judgment of Acquittal. Remand is unconstitutional and
    the State waived the remedy, if it were a remedy.

    IV.     The State’s Prayer asks for this Court to affirm the conviction, which
    is not an available remedy.

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

SUMMARY OF THE ARGUMENT ………………………………………………………..... 1

ARGUMENT ………………………………………………………………………………...… 2

PRAYER FOR RELIEF ……………………………………………………………………..… 6

CERTIFICATE OF COMPLIANCE ……………………………………………………..…… 7

CERTIFICATE OF SERVICE ………………………………………………………………... 7




                                          ii
                             INDEX OF AUTHORITIES

Britain v. State, 412 S.W.3d 518, 521 (Tex.Crim.App.2013)………………………………… 2, 3

Rabb v. State, 434 S.W.3d 61, 620 (Tex.Crim.App.2014)…………………………………. 2, 4, 5

Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003)………………………………… 5

Thornton v. State, 425 S.W.3d 289 (Tex.Crim.App.2014)……………………………… 1, 2, 3, 6

Wasylina v. State, 275 S.W.2d 908, 910 (Tex.Crim.App. 2009) ………………………………... 4

Statutes

T.R.A.P. 38(j)…………………………………………………………………………………….. 6

T.R.A.P. 38.2(a)(1)(A)…………………………………………………………………………… i

T.R.A.P. 38.2(a)(1)(B)…………………………………………………………………………… 1

Constitutional Provisions

Fifth Amendment of the United States Constitution …………………………………………….. 5

Article I, Section 14 of the Texas Constitution…………………………………………………... 5




                                     iii
                     STATEMENT REGARDING ORAL ARGUMENT

        The Court did not grant oral argument.

                                    STATEMENT OF THE CASE

        Pursuant to T.R.A.P. 38.2(a)(1)(B), Appellant does not set forth a Statement of the Case

as there is no material change.

                                       ISSUES PRESENTED

        I.     Contrary to the State’s position, “Attempt” is not always found when a guilty
               verdict on the completed offense is rendered.

        II.    Based on the indictment in this case which alleges intentionally and
               knowingly, there is no proof of specific intent to destroy the baggie.

        III.   Remedy is Judgment of Acquittal. Remand is unconstitutional and the State
               waived the remedy, if it were a remedy.

        IV.    The State’s Prayer asks for this Court to affirm the conviction, which is not
               an available remedy.


                                     STATEMENT OF FACTS

        Pursuant to T.R.A.P. 38.2(a)(1)(B), Appellant does not set forth a Statement of Facts as

there is no material change.

                                    SUMMARY OF THE ARGUMENT

        To suggest that the legislature has determined that criminal attempt is always a lesser

offense of the completed offense is counter-intuitive to this Court’s holding in Thornton v. State,

425 S.W.3d 289 (Tex.Crim.App.2014), and overlooks the fact that the State’s indictment as

worded in this case, does not permit a reviewing court to speculate that the fact finder necessarily

found    Appellant   guilty    of    the   lesser    included   offense   of   attempted   tampering.




                                                    -1-
                                           ARGUMENT

       The crux of this case lies in the indictment. It is what distinguishes this case from most

other cases that have considered the issues herein. The State only alleged that the defendant

“destroyed” the evidence, and failed to allege that he concealed or altered the evidence. In Rabb I

and Rabb II, the State, in an attempt to correct the error of its indictment, attempted to have the

underlying court of appeals and this Court “dove-tail” the terms “destroy” and “conceal”. The

court of appeals refused to do this, as did this Court, holding that “destroy” and “conceal” have

two different meanings.

       This Court held that the evidence was insufficient to prove beyond a reasonable doubt

that Appellant destroyed the baggie and/or pills. It remanded to the court of appeals for the sole

purpose to consider the questions set forth in Thornton v. State, 425 S.W.3d 289

(Tex.Crim.App.2014):

       “…this court must answer two questions: 1) in the course of convicting the appellant of
       the greater offense, must the fact finder have necessarily found every element necessary
       to convict the appellant for the lesser included offense; and 2) conducting an evidentiary
       sufficiency analysis as though the appellant had been convicted of a lesser included
       offense at trial, is there sufficient evidence to support a conviction for that offense?, If the
       answer to either of these questions is “no”, this court is not authorized to reform the
       judgment.”

Rabb v. State, 434 S.W.3d 61, 620 (Tex.Crim.App.2014).

       Contrary to the State’s position in its brief, this Court has held that an appellate court

should not render a judgment of conviction for a lesser-included offense unless there is proof

beyond a reasonable doubt of all elements of the lesser included offense.” Thornton v. State, 425

S.W.3d at 299, citing Britain v. State, 412 S.W.3d 518, 521 (Tex.Crim.App.2013). The error

that led to the conviction of the greater offense can lead to the an erroneous finding of guilt on

the lesser offense if the reviewing court automatically reforms a judgment to reflect a finding of




                                                -2-
guilt on the lesser included without reviewing the sufficiency of the evidence. Britain v. State,

412 S.W.3d at 522. “It was in view of this consideration that we said ‘while Bowen held that a

court of appeals may reform a judgment, to a lesser-included offense, we have not held, and do

not (under these circumstances) hold that the court of appeals must do so.” Thornton v. State, 425

S.W.3d at 299, foot note 55, citing Britain v. State, 412, S.W.3d at 521.

       I.      Contrary to the State’s position, “Attempt” is not always found when a guilty
               verdict on the completed offense is rendered.

       The State, in an attempt to distance itself from the underlying indictment and the fact that

under a Thornton analysis there is no legal reason to reform the judgment in this case, makes the

blanket statement that attempt is always found when a guilty verdict on the greater offense is

rendered. However, as discussed supra and reasoned by this Court in Britain, the error that

occurred in rendering the guilty verdict may also occur if the judgment is reformed to the lesser

included offense. Hence the need to evaluate the evidence with the test set forth in Thornton.

Thornton v. State, 425 S.W.3d at 299-300. As the Thornton Court stated: “…courts of appeals

should limit the use of judgment reform to those circumstances when what is sought is a

conviction for a lesser offense whose commission can be established from the facts the jury

actually found. To do otherwise would be to usurp the jury’s institutional function in the

criminal justice system – to determine the facts.” Id.

       This is especially true in reforming a judgment to a criminal attempt conviction. Judge

Alcala in her dissenting opinion stated reforming a charge to criminal attempt does not fit within

the rationale of judgment reformation because an appellate court must defer to the “jury’s

institutional role as fact finder” and only reform a judgment when it is clear that the fact finder

found the defendant guilty of the lesser included offense. Id. at 315 (dissenting opinion).




                                                -3-
       In support of its position, the State cites Wasylina v. State, 275 S.W.2d 908, 910

(Tex.Crim.App. 2009). In that case, this Court held that it was not error to submit a lesser

included charge to the jury because the defendant would be on notice of the lesser included

charge through the charging instrument. The issue was what is a lesser included offense more so

than the proof required to convict of the lesser included. That is a far cry from the State’s

position that guilt of the greater offense ipso facto is guilt of the lesser included. This Court did

not remand this case to determine whether attempted tampering is a lesser included offense of

tampering. The issue is, since the State did not prove their tampering charge as worded in the

indictment, did they prove the lesser included charge of attempted tampering by destruction.

       II.     Based on the indictment in this case which alleges intentionally and
               knowingly, there is no proof of specific intent to destroy the baggie.

       Once again, in an attempt to throw a blanket over its mistake in only alleging “destroyed”

in the indictment, the State argues that if criminal attempt does not apply to all offenses, it does

to all offenses requiring specific intent.    Its five page argument can be condensed to the

following statement: if the trial court found beyond a reasonable doubt that Appellant destroyed

the baggie with intent to impair its availability as evidence, then it found Appellant guilty of

attempted tampering with evidence, regardless of what criminal act was used to do so. In other

words, if it is a specific intent crime, due process requirements of proving each element alleged

no longer apply when considering a lesser included. This is a slippery slope to approach.

       As Judge Cochran’s concurring opinion “simply pointed out”, the State lost this

conviction because of its Indictment. Rabb v. State, 434 S.W.3d at 619. The legislature set forth

three ways tampering can be proven, and the State only pled one. The State is required by the

due process guarantee to prove beyond a reasonable doubt every element of the offense alleged.

Rabb v. State, 434 S.W.3d at 616, citing Swearingen v. State, 101 S.W.3d 89, 95



                                                -4-
(Tex.Crim.App.2003).      Therefore, contrary to the State’s position, the evidence must be

sufficient to prove that Appellant had the specific intent to attempt to destroy the evidence. For

reasons stated by this Court in Rabb II and the court of appeals in Rabb III, the State’s evidence

as to the element of destroyed was insufficient.

        The court of appeals held that the State did not prove the lesser included offense under

the second element and it refused to reform the judgment. Based on the record in this case and

the Indictment, this Court should affirm the court of appeals.

       III.    Remedy is Judgment of Acquittal. Remand is unconstitutional and the State
               waived the remedy, if it were a remedy.

       This case has been fought in the court of appeals and this Court for the last several years.

Both Courts have held that the State was basically deficient in drafting its indictment and

therefore due process requires acquittal. The State now asks this Court to reform the judgment.

To do so based on the State’s points of error basically results in a reformation of the indictment,

after the case has been tried to the trial court. This would be a violation of Appellant’s due

process rights under the facts and circumstances, and the record of this case.

       The State also asks the Court to take the unusual step in remanding the case only as to the

lesser included offense if it is determined that the trial court did not find the lesser included

offense. This screams of double jeopardy, especially based on the state of the record in this case.

This would be a violation of Appellant’s Due Process rights under the Fifth Amendment of the

United States Constitution and Article I, Section 14 of the Texas Constitution. The State fails to

cite any controlling authority for its position that trampling on the Appellant’s Due Process rights

is a proper remedy in this case.




                                               -5-
       This Court remanded to the court of appeals for one reason, analyze the record in light of

Thornton to decide whether reformation of the judgment was proper. Remand was never an

issue in Rabb II or Rabb III. As such the State has waived this remedy, if it were even thinkable.

       IV.        The State’s Prayer asks for this Court to affirm the conviction, which is not
                  an available remedy.

       Pursuant to T.R.A.P. 38(j), the State’s brief must clearly state the relief sought. In its

Prayer it asks the Court to reverse the court of appeals judgment and affirm the conviction. It

does not ask for the judgment to be reformed or the case to be remanded. This Court and the

court of appeals already ruled that the evidence was legally insufficient to convict Appellant.

That relief is no longer available to the State. Relief not requested in the Prayer is waived.

T.R.A.P. 38(j).

                                     PRAYER FOR RELIEF

       WHEREFORE, Appellant prays that the Court of Criminal Appeals overrules the State’s

points of error, affirms the Court of Appeals, and enters a Judgment of Acquittal in favor of

Appellant.




                                                -6-
                             CERTIFICATE OF COMPLIANCE

       The undersigned certifies that according to Microsoft Word word count tool this

document contains 2,137 words.




                                             ______________________________
                                             Greg Gray




                                CERTIFICATE OF SERVICE

       I, Greg Gray, hereby certify that a true and correct copy of Appellant’s Reply Brief has

been electronically served on opposing counsel on this the 8th day of April, 2015.




                                             ______________________________
                                             Greg Gray




                                               -7-
