                                                                                  ACCEPTED
                                                                             03-14-00371-CR
                                                                                    4908209
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                       4/15/2015 11:41:03 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK

 IN THE COURT OF APPEALS
 THIRD DISTRICT OF TEXAS FILED IN
      AUSTIN, TEXAS    3rd COURT OF APPEALS
                            AUSTIN, TEXAS
                                                  4/15/2015 11:41:03 PM
                                                     JEFFREY D. KYLE
                                                           Clerk
             ______________________________


      NO. 03-14-00371-CR
             ______________________________




    JIM JACK THOMPSON, Appellant

                          v.

    THE STATE OF TEXAS, Appellee

             ______________________________

 ON APPEAL FROM THE 26TH JUDICIAL DISTRICT COURT
           OF WILLIAMSON COUNTY, TEXAS
             CAUSE NUMBER 13-0520-K26
             ______________________________


         BRIEF FOR APPELLANT
             ______________________________




ORAL ARGUMENT IS REQUESTED



                                              RAY BASS, ATTORNEY
                                              SBN 01884000

                                              120 W. 8th Street
                                              Georgetown, Texas 78626
                                              Tel: 512-863-8788
                                              Fax: 512-869-5090
                                              Email:ray@raybass.com

                                              ATTORNEY FOR APPELLANT
           IDENTITY OF PARTIES AND COUNSEL

PARTIES TO THE TRIAL COURT’S JUDGMENT:
    JIM JACK THOMPSON, III, Defendant
    THE STATE OF TEXAS

TRIAL COUNSEL:
    MS. LAUREN McLEOD SBN 24029584
    MS. LYTZA ROJAS SBN 24046750
    ASSISTANT DISTRICT ATTORNEYS
    405 MARTIN LUTHER KING STREET
    GEORGETOWN, TEXAS 78626
    TEL. 512-943-1234
    FAX: 512-943-1255
    ATTORNEYS FOR THE STATE OF TEXAS

    MR. WILLIAM HINES, III SBN 0969930
    MR. R MARC RANC SBN 01786187
    HINES, RANC,, & HOLUB, LLP
    1112 ROCK STREET
    GEORGETOWN, TEXAS 78626
    TEL. 512-930-7500
    FAX: 512-930-7537
    ATTORNEYS FOR DEFENDANT


APPELLATE COUNSEL:

    MR. RAY BASS, Attorney
    SBN 01884000
    120 W. 8TH STREET
    GEORGETOWN, TEXAS 78626
    TEL. 512-863-8788
    FAX: 512-869-5090
    ATTORNEY FOR DEFENDANT

    MR. JOHN C. PREZAS, ASSISTANT DA
    SBN 24041722
    405 MARTIN LUTHER KING STREET
    GEORGETOWN, TEXAS 78626
    TEL. 512-943-1248
    FAX: 512-943-1255
    ATTORNEY FOR THE STATE OF TEXAS
                 TABLE OF CONTENTS


                                                  Page



INDEX OF AUTHORITIES                              i



STATEMENT OF THE CASE                             1



STATEMENT OF FACTS                                1




POINT OF ERROR                                    13

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT
APPELLANT’S CONVICTION FOR BURGLARY      OF   A
HABITATION (ROBBERY) AS ALLEGED IN PARAGRAPH
TWO OF THE INDICTMENT.




CONCLUSION AND PRAYER                             23




CERTIFICATE OF COMPLIANCE                         24




CERTIFICATE OF SERVICE                            25
                  INDEX OF AUTHORITIES

                                             PAGE


Case Law

Byars v. State, # 14-07-00824                23
(Tex. App. – Houston [14th Dist.] 2008)
(not designated for publication)

Chadwick v. State, 277 S.W.3d 99             13
(Tex. App. - Austin 2009)

Cooper v. State, 373 S.W.3d 821              19
(Tex. App.-Austin 2012)

Davis v. State, 757 S.W.2d 386               22
(Tex. App. – Dallas 1988)

DeVaughn v. State, 749 S.W.2d 62             14
(Tex. Crim. App. 1988)

Garfias v. State, 424 S.W.3d 54              19
(Tex. Crim. App. 2014)

Gumpert v. State, 49 S.W. 3d 450             23
(Tex. App. –Texarkana 2001)

Hooper v. State, 214 S.W.3d 9                13
(Tex. Crim. App. 2007)

In Re The Matter Of E.U.M. 108 S.W..3d 368   22
(Tex. App. – Beaumont 2003)

Jackson v. Virginia, 443 U.S. 307(1979)      13

Martinez v. State, 269 S.W.3d 777            14
(Tex. App.-Austin 2008)

Mendez v. State, 575 S.W.2d 550              21
(Tex. Crim. App. 1979)

McCrary v. State, 327 S.W.3d 165             19
(Tex.App.-Texarkana 2010).

Williams v. State, 235 S.W.. 3d 742          21
(Tex. Crim. App. 2007)
Yates v. State, 624 S.W.2d 816                   22
(Tex. Ap. – Houston [14th Dist.] 1981, no pet)


Statutes

Tex. Penal Code Ann. § 1.07(8)                   19

Tex. Penal Code Ann. § 6.03(c)                   21

Tex. Penal Code Ann. § 6.03(d)                   21

Tex. Penal Code Ann. § 29.01(1)                  17

Tex. Penal Code Ann. § 29.02(a)(1)               14

Tex. Penal Code Ann. § 30.02(a)(3)               14

Tex. Penal Code Ann. § 31.01(2)(A)               18

Tex. Penal Code Ann. § 31.01(4)(B)               18

Tex. Penal Code Ann. § 31.03(a)                  17

Tex. Penal Code Ann. § 31.03(b)                  18
                     STATEMENT OF THE CASE


       Appellant was convicted by a jury of burglary
of a habitation, a felony of the first degree. The
jury     subsequently         found         that    appellant      had
previously been convicted of the felony offense of
burglary      of     a     habitation         and    assessed      his
punishment at 60 years confinement. By this appeal
appellant presents one point of error contending
that    the     evidence     is    insufficient          to   support
appellant’s conviction for burglary of a habitation
(Robbery)       as   alleged      in    paragraph     two     of   the
indictment.


                         STATEMENT OF FACTS


The Indictment


       The one count indictment alleged, in paragraph
II, that on or about March 15, 2013, the defendant,
“without the effective consent of Shannon Francis,
the    owner,    intentionally         or    knowingly    entered    a
habitation and committed or attempted to commit the
felony offense of robbery1”.

1
  Paragraph I of the indictment alleged that appellant, “without the
effective consent of Shannon Francis, the owner, entered a habitation
with intent to commit the offense of robbery”. After both sides rested
the state waived paragraph I (RR, Vol. 11, p. 119).


                                   1
The State’s Case


    On March 15, 2013, Melinda Cortez, assistant
manager at the Payless Shoe Store on Palm Valley
street in Round Rock, noticed appellant walk into
the store (RR. Vol. 9, p. 38).              He was wearing a
black T-Shirt with the word “Staff” written on the
back (RR. Vol. 9, p. 53). Cortez was waiting on a
customer at the cash register when, shortly after
appellant entered the store, she heard the uniquely
distinct shutting sound of the door that opens to
the office store room and employees area at the
back of the store (RR. Vol. 9, p. 54). She excused
herself and walked to the middle aisle of the store
from which she could see the door leading to the
office    area    (RR.    Vol.   9,   p.    55).        She   saw
appellant walking up the aisle and asked if he had
just left the back room (RR. Vol. 9, p. 55).                   He
first    said    “no”    but   ultimately    admitted    he   had
walked back into that area to look for a bathroom
(RR. Vol. 9, p. 56). Cortez walked to the back of
the store, opened the door, and saw her purse and
the contents thereof scattered on the floor (RR.
Vol. 9, p. 56).           She ran back to the front cash
register and asked the customer waiting there if
she knew where appellant had gone (RR. Vol. 9, p.

                                 2
57).    The    customer    said   that       appellant    had    just
jumped into a truck parked right in front of the
store (RR. Vol. 9, p. 56). Cortez ran outside where
she saw appellant in the               passenger seat of the
truck and an elderly woman at the wheel starting to
back out of the handicap parking slot (RR. Vol. 9,
p. 58).       Cortez hollered “don’t give him a ride, he
just robbed us” (RR. Vol. 9, p. 58). Appellant then
jumped out of the cab of the truck, jumped into the
truck bed and sat down with his back to the cab
(RR. Vol. 9, p. 59). He then jumped out of the bed
of the truck and started running down the sidewalk
past Cortez (RR. Vol. 9, p. 60).                As appellant ran
by,    Cortez    told    him   that    she    is   “on   the    phone
giving the police a description” (RR. Vol. 9, p.
61). Cortez watched as appellant ran into a nearby
subdivision       (RR.    Vol.    9,     p.    62).      She    later
determined that her wallet had been taken from her
purse (RR. Vol. 9, p. 56).


       On March 15, 2013, Shannon Francis left her job
as an Assistant Williamson County Attorney to have
lunch at her home at 1475 Rainbow Parke, in Round
Rock (RR. Vol. 9, pp, 106, 108). Holding her Louie
Vitton purse on the “crook” of her left arm she
entered her home through the garage and immediately
noticed appellant, who was wearing shorts but no

                                  3
shirt, sleeping face up on the floor of her bedroom
(RR. Vol. 9, pp. 111, 117, 118, 147). When Francis
first walked into the bedroom appellant did not
respond to her (RR. Vol. 9, p. 118), but when she
said “Hello” and “Who are you” appellant turned his
face towards her and started mumbling the names of
some people who said he could “crash” in the house
during South By Southwest (RR. Vol. 9, p. 119).
Francis noticed that one of her other purses was
lying on the bed and that the contents of that
purse had been “dumped out” (RR. Vol. 9, p. 119).
At this point she realized that she was confined
inside her home with a “criminal” (RR. Vol. 9, p.
120).    She   started     stepping      backwards      toward    the
garage, hit the button to open the garage door, and
began reaching for her cell phone (RR. Vol. 9, p.
120).    Appellant,      who    was   now    following     Francis,
asked if he could borrow her phone (RR. Vol. 9,
p.151). She said “no” and called 911 (RR. Vol. 9,
p. 122), telling the man               who answered        that she
needed the police (RR. Vol. 9, p. 123). Appellant
entered the garage and asked Francis for her keys.
When she refused appellant grabbed her left arm2
and attempted to take her purse (RR. Vol. 9, p.
123). In a brief struggle, Francis and her purse
quickly ended up on the garage floor (RR. Vol. 9,
2
  Francis testified that where appellant grabbed her left arm she “felt
it for several days”. (RR, Vol. 9, p. 125).

                                  4
p. 123), causing “some very minor scraping” to her
knee “that became bruises later” (RR. Vol. 9, p.
140). When asked how she ended up on the floor,
Francis responded “just through the force of the
struggle” (RR. Vol. 9, p. 123). Appellant got the
purse and dumped the contents onto the floor of the
garage.      He   found    the     car    keys,      ran     into    the
driveway, and entered Francis’ vehicle (RR. Vol. 9,
p. 126), but ran back into the garage screaming at
Francis to start the car and to give him the keys
(RR. Vol. 9, p. 127). Francis hollered “You have
the keys”, but appellant got down on the ground and
started going through her purse again (RR. Vol. 9,
p. 128). He found her house key and ran back to the
car, apparently trying to start it but he could not
(RR. Vol. 9, p. 128). He ran back to the garage
again screaming at Francis to start the car or give
him    the    keys     (RR.    Vol.      9,     p.   129).       Francis,
frightened by appellant’s escalating behavior, told
him to push the button on the key housing to pop
the key out (RR. Vol. 9, p. 129). Appellant ran
back to the car and Francis ran into the drive way
screaming “help me” (RR. Vol. 9, p. 130).


       Just as Francis ran into the driveway, Round
Rock    Police       Officer     Jerry        Hallford     was    slowly
driving his patrol car towards Francis’ house (RR.

                                   5
Vol. 9, p. 166).                He was patrolling the area in
search of the suspect in the recent theft at the
nearby Payless Shoe Store (RR. Vol. 9, p. 163). He
saw   Francis        in    her     driveway       using    both      hands
frantically trying to waive him down (RR. Vol. 9,
p. 170). He stopped in front of the house, stepped
out of his vehicle, and started walking toward the
driveway (RR. Vol. 9, p. 171). He asked Francis:
“does he belong here”, and                     when she        said “no”,
appellant started walking away. (RR. Vol. 9, p.
173-174). Hallford commanded appellant to stop but
he started running down the street. As the officer
gave chase on foot, appellant crossed the street
and ran between two houses into a fenced back yard
(RR. Vol. 9, pp. 174-176). When Hallford approached
appellant turned toward him and was taser dropped
to the ground (RR. Vol. 9, pp. 177-179). Appellant
attempted to pull the taser prongs out of his body
and was tasered a second time (RR. Vol. 9, p. 180),
but   he   removed         the    taser        prongs    and    took    off
running again, charging through a fence gate (RR.
Vol. 9, p. 181) and breaking through fences in two
additional backyards (RR. Vol. 9, p. 182).                           Unable
to    knock    down       the     fence    in     a     third    backyard
appellant again turned toward officer Hallford who
unsuccessfully            attempted       to     tase    him     a   third
time(RR.      Vol.    9,     p.   182).        Appellant       jumped   the

                                      6
fence and started running toward Red Bud street.
Hallford jumped the fence and continued to pursue
appellant into a Wal Mart parking lot (RR. Vol. 9,
p. 183). Appellant jumped into the passenger side
of a van in the parking lot, and when the driver
stepped out appellant drove off in the van at a
high rate of speed almost hitting a patrol car that
had just entered the parking lot (RR. Vol. 9, p.
188-189). He jumped a median into a grassy area,
hit a tree, jumped a curb and headed south on Red
Bud street (RR. Vol. 9, p. 190-193). Two police
vehicles gave chase (RR. Vol. 9, pp. 188 – 200).


       Round Rock police officer Logan Harper-Hill had
been dispatched to the theft at the Payless Shoe
Store    and   was    patrolling     a   nearby        neighborhood
looking    for   the    suspect      when    he    heard    officer
Hallford’s call for help in apprehending someone in
the Wal Mart parking lot (RR. Vol. 9, p. 224). He
activated his overhead lights and headed to Wal
Mart    (RR.   Vol.    9,   p.   225).      As    he   entered   the
parking lot he saw a maroon van that was headed
towards him, but the van hit a tree then headed
south on Red Bud Street (RR. Vol. 9, p. 226). The
officer followed as appellant ran through a red
light, made a sharp left turn onto Woodlawn Street,
drove across several yards, and drove into a ditch

                                 7
(RR. Vol. 9, p. 227). Appellant jumped out of the
van and started running until he jumped a chain
link fence and encountered two big dogs in the yard
(RR. Vol. 9, p. 227-228), at which point he was
apprehended by officer Harper-Hill and handcuffed
by officer Brandes         (RR. Vol. 9, p. 229). After
being    apprehended      appellant            said     he     “made    a
mistake” and knew he was “going to pay for it” (RR.
Vol. 9, p. 230).


    On March 22, 2013, Round Rock Detective Bernie
Villegas obtained from Shannon Francis a black T-
Shirt she had found on the floor of her closet.
Printed on the front of the T-Shirt were the words
“Hard Rock” and on the back the word “Staff” (RR.
Vol. 10, p. 56).


    A latent fingerprint lifted by officer Kerie
Cress    from   a   locker     in       the    Payless       Shoe   Store
employee room on March 15, 2013 (RR. Vol. 10, p.
33), was identified by DPS latent print examiner,
Meghan    Blackburn,      as    being         matched    to    a    known
fingerprint of appellant (RR. Vol. 10, p. 47).


The Defense


    Jeremy      Charske    is       the       project    manager       and

                                    8
estimator for All American Electrical, a company
owned by appellant’s father (RR. Vol.10, p.67). The
business        is     located    at      the     father’s    home   on
Evergreen Street, just off of Red Bud in Round Rock
(RR. Vol.10, pp. 68 & 78). At approximately 9:30 AM
on March 15, 2013, Charske saw appellant, who at
the time was living in the house on Evergreen (RR.
Vol.10, p.79), on the back porch of the house (RR.
Vol.10, p.70). Appellant was rapidly pacing back
and forth like a “caged animal”, rubbing his hands
then rubbing his head (RR. Vol.10, p.70). Sensing
that something was obviously wrong, Charske opened
the back door and asked appellant if everything was
all right (RR. Vol.10, p.71). Appellant did not
answer but simply looked at Charske “with a blank
stare”      (RR.        Vol.10,          p.71).     Charske     called
appellant’s father and told him that something was
“seriously           wrong”   with       appellant     (RR.    Vol.10,
p.71).     By    the     time     appellant’s        father    arrived
appellant was gone and no one knew where he had
gone (RR. Vol.10, p.72).


    Sage Thompson is appellant’s sister. On March
15, 2013, she was also living at her father’s house
on Evergreen (RR. Vol.10, p.78). That morning she
was supposed to take appellant to Bluebonnet, a
mental health facility in Round Rock, to get his

                                     9
anti-depressant medication (RR. Vol.10, p.79). When
asked why he takes the anti-depressants Sage said
that when he is not taking the medication “he cries
about everything” (RR. Vol.10, p.80). At some point
that    morning    appellant        walked      into       the    bathroom
while Sage was brushing her teeth. She asked if he
was ready to go and he said yes and walked out of
the bathroom (RR. Vol.10, p.80).                      Sage heard the
front    door     open    and      when   she       came    out    of    the
bathroom appellant was gone and she never saw him
again that day (RR. Vol.10, p.81).


       Robert Cantu is a medical doctor specializing
in     psychiatry.       He   is     board      certified         in    both
general    and    forensic         psychiatry       (RR.     Vol.11,      p.
45). He first evaluated appellant, at the request
of appellant’s family, in October 2012 (RR. Vol.11,
p. 46). Dr. Cantu determined that appellant had
been on Effexor, an anti-depressant medication, for
approximately six years              but had run            out of the
medication and was doing badly (RR. Vol.11, p. 46).
After evaluating appellant Dr. Cantu continued him
on the medication (RR. Vol.11, p. 46).                            About a
month     later     Cantu       received        a     telephone         call
informing him that because of the expense appellant
had decided to continue his treatment with MH-MR in
Round Rock (RR. Vol.11, p. 46).

                                    10
      In    February      2014,     appellant’s            family     again
contacted Dr. Cantu to do a psychiatric evaluation
and assess his mental condition at the time of the
alleged offense on March 15, 2013 (RR. Vol.11, pp.
68 & 70). After reviewing appellant’s medical and
psychiatric       records      spanning        a     number    of    years,
interviewing appellant and members of his family,
and   after       reviewing     the      police       reports       of     the
March      15,    2013    incident,       Dr.      Cantu      formed       the
opinion      that       appellant        was       suffering        from    a
psychosis        that    was   triggered        by    withdrawal         from
Effexor (RR. Vol.11, pp. 50-52). Specifically, the
withdrawal        triggered       “a     kind        of    hypomanic       or
agitated state with a lot of disorganization” and
“persecutory delusions that someone was out to get
him; that people or an entity, evil, were trying to
kill him” (RR. Vol.11, p. 54). Dr. Cantu explained
that appellant’s odd behaviors on March 15, 2013,
as described by witnesses, i.e: laying on the floor
taking off his shirt, being unable to figure out
how to start an automobile, jumping into the cab of
a truck and then jumping into the bed of the truck
and laying down as if he was then invisible, were
consistent with the delusions and disorganization
that accompany Effexor withdrawal (RR. Vol.11, p.
59,     62).      At     the    conclusion            of    the      direct

                                    11
examination of Dr. Cantu, the following exchange
occurred (RR. Vol.11, p. 62-63):


          Q. (By defense counsel): And based on
    your review of all the materials, did it
    seem like it was his intent or purpose to
    get       away      but      not       to     cause      anyone
    particular harm?


          A:    I    think       getting        away   was    it.    I
    mean, it was all about getting away.


          Q: Okay. You talk at the end of your
    report, about that the cognitive initial
    capacity as a result of mental illness was
    impaired.        Can       you    explain      a   little     bit
    more just about exactly what that meant?


          A;     It’s      a    fancy      way    of     saying     he
    wasn’t       thinking        right        and,     because      he
    wasn’t      thinking        right,      he    likely     wasn’t
    able to make decisions or conform behavior
    in    a    way   that       we    would      normally     think,
    that anybody would normally think that he
    would normally think because of – because
    of        that      sort         of    –      that       thought
    disorganization.

                                      12
    Dr. Cantu also testified that in his opinion
appellant    did     not    intentionally,        knowingly,      or
recklessly cause bodily injury to Shannon Francis
(RR. Vol.11, pp. 98 & 102).


                          POINT OF ERROR


    THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT
APPELLANT’S CONVICTION FOR BURGLARY OF A HABITATION
(ROBBERY) AS ALLEGED IN PARAGRAPH TWO OF THE
INDICTMENT.


                   Argument & Authorities


     The     standard        of     review     for     determining
whether evidence presented at a criminal trial is
legally sufficient to prove the offense charged is
whether, considering all of the evidence in the
light most favorable to the finding of guilt, a
rationale fact finder could have found that every
element     of    the     offense      was    proven     beyond   a
reasonable       doubt.    Jackson     v.    Virginia,   443   U.S.
307(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007); Chadwick v. State, 277 S.W.3d 99
(Tex. App. - Austin 2009).




                                  13
Elements: Burglary of a Habitation (Robbery)


       The       offense     of   Burglary          of   a     Habitation
(Robbery) is committed when the actor intentionally
or     knowingly       enters     a        habitation        without     the
effective         consent    of   the       owner    and      commits    or
attempts to commit the offense of robbery.                              See,
Tex. Penal Code Ann. § 30.02(a)(3); DeVaughn v.
State, 749 S.W.2d 62 (Tex.Crim.App. 1988); Martinez
v. State, 269 S.W.3d 777 (Tex.App.-Austin 2008).


           A person commits robbery if, in the course of
committing theft as defined in Chapter 31 of the
penal code, and with intent to obtain or maintain
control of the property, the person intentionally,
knowingly, or recklessly causes bodily injury to
another. Tex. Penal Code Ann. § 29.02(a)(1).


           Thus, to find the evidence legally sufficient
to support the appellant’s conviction for Burglary
of     a       Habitation    (Robbery),        this      Court,        after
considering all of the evidence in the light most
favorable         to   the   verdict,        must    conclude     that    a
rationale jury could have found beyond a reasonable
doubt that appellant (1) intentionally or knowingly
made       a    non-consensual        entry     into     the     home    of
Shannon Francis, and (2) thereafter while in the

                                      14
course     of    committing      theft       (3)        intentionally,
knowingly, or recklessly caused bodily injury to
Shannon       Francis,   (4)    with    intent          to    obtain        or
maintain control of the property.


No Rationale Jury Could Have Found Beyond A
Reasonable Doubt That Appellant Intentionally Or
Knowingly Made a Non-Consensual Entry Into The Home
Of Shannon Francis.

        The issue here is not whether appellant had
permission to enter Shannon Francis’ home. Clearly,
she gave no such permission, and no rational person
would     believe     that     anyone    else       gave       appellant
permission to enter the home. The issue is whether,
considering       all    the     evidence          in        thie        case,
including       the   uncontradicted          testimony             of    Dr.
Robert Cantu, a rational jury could have found,
beyond a reasonable doubt, that appellant knew he
did not have permission to enter the home.


        Dr.     Robert       Cantu,      a     board           certified
psychiatrist, had treated appellant in the past and
was   intimately      familiar    with       appellant’s            medical
and     psychiatric      history.        He        testified              that
appellant had been on Effexor, an anti-depressant
medication, for at least 6 years. After reviewing
the police reports, appellant’s extensive medical


                                 15
and   psychiatric           history,          and     after       interviewing
appellant       and       members       of     his     family,         Dr     Cantu
opined     that       on    March        15,        2013,       appellant       was
suffering from a psychosis triggered by withdrawal
from Effexor. According to Dr. Cantu, appellant’s
odd behaviors, as characterized by witnesses to the
incidents       of    March        15,        and    as     outline      in     the
statement of facts above, were consistent with the
delusions           and     disorganization                 that       accompany
Effexor withdrawal. The state presented no expert
testimony             to          contradict                Dr.          Cantu’s
characterization of appellant’s mental condition on
March 15, 2013.


        Appellant          told        Francis        that       someone        had
allowed him to “crash” in the house during South By
Southwest.          Although        no        rational          person        would
believe that anyone gave appellant permission to
enter    in     the       house,    it        is     not    unreasonable         to
believe       that        appellant           who,     according         to     the
uncontradicted             testimony            of        Dr.     Cantu,        was
suffering       a    psychosis         characterized             by    delusions
and disorganization, believed he had permission to
enter     the       home.         No     one        testified         about     the
circumstances         surrounding              appellant’s         entry       into
Ms. Francis’ home. And, it is important that there
was no testimony or evidence of a forced entry by

                                         16
appellant,       which     would     tend    to    suggest     that   he
would have known he did                 not have permission to
enter the house. Appellant was laying on the floor
of Ms. Francis’ bedroom, asleep, when she first saw
him, and, he did not act as she would have expected
a guilty person to act (RR, Vol. 9, p. 149).


        In light of all the facts and circumstances
shown by the evidence in this case, no rationale
jury could have found beyond a reasonable doubt
that appellant knew he did not have permission to
enter the habitation owned by Shannon Francis.


No Rational Jury Could Have Found Beyond A
Reasonable Doubt That Shannon Francis Was Injured
While Appellant Was In The Course Of Committing
Theft.


        "In     the   course    of      committing     theft"    means
conduct that occurs in an attempt to commit theft,
or     during     the     commission        of    a   theft,    or    in
immediate flight after the commission of or attempt
to commit theft. Tex. Penal Code Ann. § 29.01(1).


        The     offense    of   theft       is    committed    when    a
person unlawfully appropriates property with intent
to deprive the owner of the property. Tex. Penal
Code    Ann.     §    31.03(a).         “Appropriate"        means    to

                                   17
acquire or otherwise exercise control over property
other than real property. Tex. Penal Code Ann. §
31.01(4)(B). Appropriation of property is unlawful
if it is without the owner's effective consent.
Tex. Penal Code Ann. § 31.03(b).         "Deprive" means to
withhold property from the owner permanently or for
so extended a period of time that a major portion
of the value or enjoyment of the property is lost
to the owner. Tex. Penal Code Ann. § 31.01(2)(A).


        Bodily   injury   to   Shannon    Francis   occurred
while     appellant   was      apparently   attempting   to
exercise non consensual control over her purse. But
no theft occurred unless it was appellant’s intent
to withhold the purse from Francis permanently or
for long enough to significantly destroy the value
or Francis’ enjoyment of the property. The evidence
simply will not justify a finding of such an intent
beyond a reasonable doubt. Indeed, appellant left
the purse on the garage floor next to Francis.


No Rational Jury Could Have Found Beyond A
Reasonable Doubt That Appellant Intentionally,
Knowingly, or Recklessly Caused Bodily Injury to
Shannon Francis

        "Bodily injury" means physical pain, illness,
or any impairment of physical condition. Tex. Penal


                               18
Code Ann. § 1.07(8). Bodily injury robbery is a
result       oriented       offense.          Garfias     v.     State,       424
S.W.3d 54 (Tex. Crim. App. 2014); Cooper v. State,
373 S.W.3d 821 (Tex. App.-Austin 2012); McCrary v.
State,    327    S.W.3d       165       (Tex.App.-Texarkana                2010).
The culpable mental state focuses on the result of,
and    not    the     nature       of    the      defendant’s          conduct.
Thus,     to     find        that        appellant         intentionally,
knowingly, or recklessly caused bodily injury to
Shannon Francis, the jury                      had to find            beyond a
reasonable          doubt     that           it   was     his         conscious
objective       or    desire       to        cause   physical          pain    to
Francis, or that he knew his conduct was reasonably
certain to cause physical pain to Shannon Francis,
or that he was aware of but consciously disregarded
a     substantial       and    unjustifiable              risk        that    his
conduct       would     cause       physical            pain     to     Shannon
Francis.


        Bodily       injury    to       Shannon         Francis        occurred
while appellant was attempting to exercise control
over her purse. After appellant grabbed her left
arm    and     attempted       to       grab      the    purse,        a     brief
struggle ensued and Francis ended up on the garage
floor with “some very minor scraping” to her knee.
She testified that she also had some pain to her
left     arm.    There        is    no        evidence         that    it     was

                                        19
appellant’s conscious objective or desire to cause
physical    pain    to    Francis,   or    that   he    knew   his
spontaneous action was reasonably certain to cause
her physical pain. Appellant made no verbal threats
and no admissions of having such a culpable mental
state. Merely grabbing Francis’ arm and reaching
for her purse is not conduct that is likely to
cause bodily injury. Although a struggle ensued,
Francis offered no testimony or demonstration of
the details of the struggle, which almost instantly
resulted in Francis and her purse being                   on the
garage floor.


     The    issue    is    whether    or    not   the   evidence
supports a finding that appellant recklessly caused
physical pain       to Francis.      In this regard it is
important    to    understand       the    difference    between
criminal recklessness and criminal negligence.


     A person acts recklessly, or is reckless with
respect to the result of his conduct when he is
aware of but consciously disregards a substantial
and unjustifiable risk that the result will occur.
The risk must be of such a nature and degree that
its disregard constitutes a gross deviation from
the standard of care that an ordinary person would
exercise under all the circumstances as viewed from

                               20
the   actor's   standpoint.      Tex.    Penal      Code    Ann.    §
6.03(c). A person acts with criminal negligence, or
is criminally negligent, with respect to the result
of his conduct when he ought to be aware of a
substantial and unjustifiable risk that the result
will occur. The risk must be of such a nature and
degree that the failure to perceive it constitutes
a gross deviation from the standard of care that an
ordinary   person      would     exercise      under       all    the
circumstances as viewed from the actor's standpoint
Tex. Penal Code Ann. § 6.03(d).


      Unlike      criminal           negligence,           criminal
recklessness    requires       the   defendant       to    actually
foresee the risk involved and to consciously decide
to    ignore     it.     Mere        lack      of      foresight,
irresponsibility,      thoughtlessness,          stupidity,        or
ordinary    carelessness,            however        serious       the
consequences may happen to be, does not rise to the
level of criminal recklessness. Williams v. State,
235 S.W.. 3d 742 (Tex. Crim. App. 2007).


      Cases involving the discharge of a firearm
provide,   perhaps,     the    best     example      of    what    is
required to prove a criminally reckless state of
mind. See, Mendez v. State, 575 S.W.2d 550 (Tex.
Crim. App. 1979)(shooting randomly at houses in one

                                21
of which an occupant was killed); Yates v. State,
624 S.W.2d 816 (Tex. Ap. – Houston [14th Dist.]
1981, no pet) (pointing a loaded gun at another who
was killed when the gun accidentally discharged);
In Re The Matter Of E.U.M. 108 S.W..3d 368 (Tex.
App.     –    Beaumont        2003)(E.U.M.       a     juvenile,        for
amusement only and without intent to kill, pointed
a sawed off shotgun at her friend and, forgetting
that it was loaded, pulled the trigger, shooting
and killing her friend); Davis v. State, 757 S.W.2d
386 (Tex. App. – Dallas 1988)(defendant picked up a
pistol that he kept in his truck, and while he and
his girlfriend were sitting in the truck he started
playing with the pistol by spinning it on his index
finger.       The      pistol       discharged    and     killed        his
girlfriend). In these kinds of cases “It defies
reason to question that any person would not be
cognizant of a substantial and unjustifiable risk
of harm in such a situation.” In Re The Matter Of
E.U.M., supra at 371.


       Because          Shannon       Francis         received      minor
injuries as a result of a very brief “struggle”
precipitated           by   appellant’s       attempt    to    take     her
purse,       It    might     be     argued     that     this     case    is
analogous         to    cases     where     injuries     to    a   police
officer      resulted        from    a     struggle    with    a   person

                                      22
resisting arrest. See, Byars v. State, # 14-07-
00824 (Tex. App. – Houston [14th Dist.] 2008)(not
designated for publication); Gumpert v. State, 49
S.W. 3d 450 (Tex. App. –Texarkana 2001).                          But, in
those    cases   the   defendants’            conduct      amounted    to
more than precipitating the struggle. During the
course    of     the   struggle             the     defendant,      while
resisting police efforts to detain or arrest him,
started intentionally “flailing his arms” around,
or kicking, in a manner that unquestionably created
a   substantial     and    unjustifiable            risk     of   causing
bodily    injury,         and   in        circumstances       that    any
person would be cognizant of such a risk.


      Although the evidence is sufficient to prove
that appellant negligently caused bodily injury to
Shannon    Francis,       it    is        legally    insufficient      to
prove     that    he      intentionally,              knowingly,       or
recklessly caused bodily injury to Shannon Francis.




                    CONCLUSION AND PRAYER


     Because the evidence is legally insufficient to
prove    that    appellant      intentionally           or    knowingly
entered a habitation owned by Shannon Francis and
committed or attempted to commit the felony offense

                                     23
of robbery, appellant prays that his conviction for
that offense be set aside and the case remanded to
the   trial     court   with     instructions          to   enter   a
judgment of acquittal for that offense.


                                      RESPECTFULLY SUBMITTED


                                      /S/ Ray Bass
                                      ________________________
                                      RAY BASS, ATTORNEY
                                      SBN 01884000

                                      120 WEST 8TH STREET
                                      GEORGETOWN, TEXAS 78626
                                      TEL: 512-863-8788
                                      FAX: 512-869-5090

                                      Email: ray@raybass.com




                   CERTIFICATE OF COMPLIANCE

      Pursuant to RULE 9.4(i)(3), TEXAS RULES OF APPELLATE
PROCEDURE, the undersigned attorney of record for appellant
certifies   that   Appellant’s   Brief,   with   the    exception   of
those parts excluded by RULE 9.4(i)(1), contains LESS THAN
15,000 words.


                                      /S/ Ray Bass
                                      _____________________
                                      RAY BASS, ATTORNEY




                                 24
                 CERTIFICATE OF SERVICE

    I hereby certify that a copy of Appellant’s Brief was
delivered to JOHN C. PREZAS, ASSISTANT DISTRICT ATTORNEY
for Williamson County, Texas, 404 S. Martin Luther King
Street,   Georgetown,   Texas,    78626,    by    email   to
jprezas@wilco.org on April 15, 2015, and by also depositing
a copy of same in the United States Mail.


                                   /S/ Ray Bass
                                   _____________________
                                   RAY BASS, ATTORNEY




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