                                                                               ACCEPTED
                                                                           12-14-00337-CR
                                                              TWELFTH COURT OF APPEALS
                                                                            TYLER, TEXAS
                                                                      8/31/2015 2:21:27 PM
                                                                             CATHY LUSK
                                                                                    CLERK

                       No. 12-14-00337-CR

                                                          FILED IN
                                                   12th COURT OF APPEALS
                            IN THE                      TYLER, TEXAS
                      COURT OF APPEALS             8/31/2015 2:21:27 PM
           TWELTH DISTRICT OF TEXAS AT          TYLERCATHY S. LUSK
                                                            Clerk
________________________________________________________________

                        LARRY MAPLES,
                          APPELLANT

                                V.

                    THE STATE OF TEXAS,
                         APPELLEE

_________________________________________________________________

                      APPELLEE’S BRIEF
________________________________________________________________

           On appeal from Cause Numbers CR13-00334
                   294th Judicial District Court
                    Van Zandt County, Texas
________________________________________________________________

                      APPELLEE’S BRIEF

           Van Zandt County Criminal District Attorney
               Richard A. Schmidt, First Assistant
                  State Bar Number 24043907
                400 S. Buffalo, Canton, TX 74103
                 903-567-4104 – 903-567-6258fx

                  Attorney for the State of Texas




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                       IDENTITIES OF PARTIES

APPELLANT:
    Larry Maples
    TDCJ # 01965775
    Stiles Unit
    3060 FM 3514
    Beaumont, Texas 77705

Trial Attorneys for the Appellant:

Jeff Hass                        James Huggler
100 E. Ferguson, Ste. 908        100 E. Ferguson, Ste. 805
Tyler, TX 75702                  Tyler, TX 75702

J. Rex Thompson
321 W. Houston St.
Tyler, TX 75702

Attorney for Appellant on Appeal:        James Huggler
                                         100 E. Ferguson, Ste. 805
                                         Tyler, TX 75702

Attorneys for the State at trial and on Appeal:

Richard A. Schmidt               Chris Martin
1st Asst. Crim. Dist. Att.       Criminal District Attorney
400 S. Buffalo                   400 S. Buffalo
Canton, TX 75103                 Canton, TX 75103




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                   TABLE OF CONTENTS

                                               PAGE

IDENTITIES OF PARTIES AND COUNSEL                    2

INDEX OF AUTHORITIES                                 4

STATEMENT OF THE CASE                                5

ISSUES PRESENTED                               3, 6, 11

    ISSUE NUMBER ONE:   THE EVIDENCE WAS
    LEGALLY SUFFICIENT TO FIND APPELLANT
    GUILTY OF THE OFFENSE OF CAPITAL MURDER.

    ISSUE NUMBER TWO:   THE   TRIAL COURT
    ACTED CORECTLY IN DENYING APPELLANT’S
    MOTION FOR DIRECTED VERDICT.

    ISSUE NUMBER THREE: IT WAS NOT ERROR FOR
    THE TRIAL COURT TO DENY APPELLANT’S
    MOTION FOR A PERJURY INSTRUCTION.


SUMMARY OF THE FACTS                                 5

ARGUMENT                                             6

PRAYER                                               15

CERTIFICATE OF SERVICE                               15

CERTIFICATE OF COMPLIANCE                            15




                            3
                      INDEX OF AUTHORITIES

CASES

Brooks v. State, 323 S.W.3d 893, 2010 Tex. Crim. App. LEXIS 1240
(Tex. Crim. App. 2010)…………………………….……………………….…..7
Ex parte Castellano, 863 S.W.2d 476, 479 (Tex. Crim. App. 1993)…….12
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)……………………………………………………………………..……….7
Losada v. State, 721 S.W.2d 305, 311 (Tex. Crim. App. 1986)………….12
McDuff v. State, 939 S.W.2d 607, 613, 1997 Tex. Crim. App.
LEXIS 1, *12 (Tex. Crim. App.1997)………………………………………6, 8
Ramirez v. State, 96 S.W.3d 386, 396, 2002 Tex. App.
LEXIS 5402, *27-28 (Tex. App. Austin 2002)………………………….….13
Tucker v. State, 15 S.W.3d 229, 234 (Tex. App.-- Houston [14th Dist.]
2000, pet. ref'd)…………………………………………………………………12
York v. State, 342 S.W.3d 528, 530, 2011 Tex. Crim. App.
LEXIS 913, *1 (Tex. Crim. App. 2011)………………………………..……..7



STATUTES

Tex. Penal Code § 19.03(a)(2)………………………………………………….5




                                    4
TO THE HONORABLE JUSTICES OF THE COURT OF APPEAL:


     The State of Texas, Appellee, by and through her attorney of

record, Richard A. Schmidt, files this response brief on appeal:

                      STATEMENT OF THE CASE

     Appellee accepts and adopts Appellant’s statement of the case as

outlined in Appellant’s brief.

                         SUMMARY OF FACTS

     Appellant was charged by indictment with capital murder in that

on or about March 24, 2013, he intentionally caused the death of

Heather Maples (hereinafter referred to as “Heather”), by shooting her

with a firearm, while in the course of committing the offense of burglary

of a habitation of Moises Clemente (hereinafter referred to as “Mo”). I

CR 11; 14 RR 10-11; Tex. Penal Code § 19.03(a)(2).         On March 23,

2013, Heather went to Mo’s home. 14 RR 43. In the early morning

hours of March 24, 2013, Larry Maples drove to the rural location of

Mo’s home, parked his truck three-tenths of a mile from the residence,

walked to the residence carrying a Colt .45 1911 semi-automatic hand

gun, entered through an unlocked door, crept to a bedroom where Mo

and Heather were having a conversation, without word shot Mo in the

                                    5
abdomen, argued with Heather, shot her, argued more, shot her again,

left the bedroom, returned, placed a pillow over her head and shot her

under the chin ending her life. 14 RR 56-67 and 14 RR 154. Additional,

relevant facts will be further discussed throughout this brief.

                              ARGUMENT

ISSUE NUMBER ONE:   THE EVIDENCE WAS SUFFICIENT TO
PROVE APPELLANT GUILTY OF CAPITAL MURDER.
                    (COMBINED)
 ISSUE NUMBER TWO: THE TRIAL COURT ACTED CORECTLY
IN DENYING APPELLANT’S MOTION FOR DIRECTED VERDICT.


     Appellant complains to this Court that the record is void of legally

sufficient evidence for the jury to find the element of the crime of

Capital Murder beyond a reasonable doubt. Appellant combines his

second issue with the first and complains that the trial court erred in

not granting a directed verdict as requested at trial based on an

insufficiency claim. Since a complaint about overruling a motion for

directed/instructed verdict is in actuality an attack upon the sufficiency

of evidence to sustain the conviction, it is properly addressed together.

McDuff v. State, 939 S.W.2d 607, 613, 1997 Tex. Crim. App. LEXIS 1,

*12 (Tex. Crim. App. 1997).



                                    6
     In determining the issue of sufficiency of the evidence to sustain a

conviction, the Court of Criminal Appeals in Brooks v. State, 323 Sw3d

893, adopted the United States Supreme Court standard as outlined in

Jackson v. Virginia:

     The critical inquiry on review of the sufficiency of evidence
     to support criminal conviction must be not simply to
     determine whether jury was properly instructed, but to
     determine whether record evidence could reasonably support
     a finding of guilt beyond a reasonable doubt; the relevant
     question is whether, after viewing evidence in light most
     favorable to prosecution, any rational trier of fact could have
     found the essential element of the crime beyond a reasonable
     doubt.

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979).

     As is the case here, where Appellant elected to have the charges

against him tried to a jury, “[w]hen the trial judge is not the finder of

fact on the question of guilt, [s]he can direct a verdict in the defendant's

favor only if after viewing the evidence in the light most favorable to the

prosecution, [s]he cannot conclude that any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt. York v. State, 342 S.W.3d 528, 530, 2011 Tex. Crim. App. LEXIS

913, *1 (Tex. Crim. App. 2011).



                                     7
     The indictment in the instant cause included a count alleging

capital murder via murder in the course of committing and attempting

to commit burglary of a habitation. 14 RR 10-11.        The jury charge

authorized conviction of capital murder if it found that appellant

intentionally caused the death of the Heather Maples in the course of

committing burglary of the habitation of Moises Clemente. 16 RR 8.

The jury returned a general verdict of "guilty of the offense of capital

murder."   16 RR 49.     If the evidence is sufficient to support the

allegation of murder during the course of burglary of a habitation, then

the guilty verdict shall be upheld. McDuff v. State, 939 S.W.2d 607,

614, 1997 Tex. Crim. App. LEXIS 1, *14-15 (Tex. Crim. App. 1997).

     As properly contained in the trial court’s charge to the jury, a

person commits capital murder if he intentionally or knowingly causes

the death of another while in the course of committing or attempting to

commit burglary. 16 RR 8. Further, the charge to the jury properly

states that a person commits the offense of burglary if, without the

effective consent of the owner, he enters a habitation with the intent to

commit a felony, theft or an assault or he enters a habitation and

commits or attempts to commit a felony, theft or assault.


                                    8
     In the instant case, the evidence shows beyond a reasonable doubt

that during the early hours of March 24, 2013, Appellant drove his

white pickup truck to Moises Clemente’s (hereinafter referred to as

“Mo”) house located at 2641 F.M. 16 in Van Zandt County in a rural

location. 14 RR 23. He parked his truck approximately three-tenths

(3/10) miles from Clemente’s house.        15 RR 18.    He entered the

residence through an unlocked door without Moises Clemente’s

knowledge or consent. Carrying a Colt 45 semi-automatic handgun, he

walked to the bedroom where Moises Clemente and the deceased

Heather Maples (herein after referred to as “Heather”) were located.

Without saying a word, Appellant shot Mo one time in the abdomen. A

short argument between Appellant and Heather ensued.           Appellant

then shot Heather and she sat back down on the corner of the bed.

Appellant and Heather began to argue again.         They struggled and

Appellant shot Heather again and she fell to the floor where she lay

moaning. Mo pleaded with Appellant not to shoot her again. Appellant

left the bedroom only to return a short while later, placed a pillow over

Heather’s face and shot her in the head.

     14 RR 56-67 and 14 RR 154.


                                    9
     After killing Heather, Appellant left the bedroom again and began

making and or receiving telephone calls. 14 RR 68-71.        Appellant’s

conversations included a conversation with his sister Pamela Galvan, in

which he stated “I did it, I killed the bitch.” 14 RR 68. Also, Appellant

spoke with his father in during which conversation he stated, “I did

what you told me not to do.” 14 RR 70. Appellant then contacted 911

and relayed to dispatch what he had done. See State’s Exhibit 51.

     The uncontroverted testimony in this case shows beyond a

reasonable doubt that Appellant intentionally caused the death of

Heather. In addition, the evidence clearly shows that Appellant did so

while in the course of committing burglary of a habitation with the

intent to commit aggravated assault.          Appellant entered Mo’s

habitation without his consent, entered Mo’s bedroom, and without

word, shot Mo with a .45 caliber handgun.        A rational trier of fact

could conclude beyond a reasonable doubt that by parking three-tenths

of a mile from the residence, carrying a firearm with him, entering Mo’s

residence in the dark, and by shooting Mo without struggle or

conversation, that Appellant entered the residence with the intent to




                                   10
commit and indeed did commit aggravated assault and the in the course

of doing so intentionally caused the death of Heather.

     Therefore, the evidence clearly shows the verdict is consistent

with the factual and legal weight of the evidence and that the trial court

acted without error in denying Appellant’s motion for a directed verdict.



ISSUE NUMBER THREE: IT WAS NOT ERROR FOR THE TRIAL
COURT TO DENY APPELLANT’S MOTION FOR A PERJURY
INSTRUCTION.

     On Appellant’s third issue of appeal, he complains that the trial

court erred in not including a charge on perjured testimony of Moises

Clemente. 16 RR 6. In support of his contention Appellant cites several

cases which originated in the Federal system.            However, upon a

thorough review of Texas precedent, the undersigned could find no

authority supporting Appellant’s contention that he was entitled to an

instruction as requested. Further, credibility of a witness and their

testimony is properly addressed in this case as the courts charge

contained the following:

     “You are the exclusive judges of the facts proved, of the credibility

of the witnesses and the weight to be given to the testimony, but you
                                    11
are bound to receive the law from the Court, which is herein given you,

and be governed thereby.” 16 RR 14.

     The above notwithstanding, the issue is more properly couched as

a due process analysis and in terms of whether the State’s reliance on

perjured testimony, if indeed perjured, affected the verdict.

      The State is not allowed to use perjured testimony to obtain a

conviction. Losada v. State, 721 S.W.2d 305, 311 (Tex. Crim. App. 1986).

If the State presents false testimony which relates to an essential

element of the offense, and fails to correct its own testimony, then

reversal will be appropriate. See id. Further, the State’s knowing use of

perjured testimony violates the due process clause of the Fourteenth

Amendment to the United States Constitution. Ex parte Castellano, 863

S.W.2d 476, 479 (Tex. Crim. App. 1993). Disagreements in testimony do

not constitute the use of perjured testimony. Tucker v. State, 15 S.W.3d

229, 234 (Tex. App.-- Houston [14th Dist.] 2000, pet. ref'd).

Furthermore, even if there is a finding of perjured testimony, a due

process violation will be said to exist only if the complained-of testimony

is    material.    Exparte      Castellano,     863S.W.2d       at    485.

      A violation of the prohibition of using perjured testimony requires


                                    12
a conviction be set aside only if there “[I]s a reasonable likelihood that

the false testimony could have affected the judgment of the jury. This is

essentially the harmless error standard for constitutional error

embodied in the Texas Rules of Appellate Procedure 44.2(a)." Ramirez

v. State, 96 S.W.3d 386, 396, 2002 Tex. App. LEXIS 5402, *27-28 (Tex.

App. Austin 2002)(internal citations omitted).

     At trial, evidence of DNA analysis of samples taken from the body

of Heather were submitted into evidence which showed the presence of

Mo’s DNA on or in the body of Heather. 15 RR 76-77. When questioned

about the presence of his DNA in Heather, Mo testified that he hadn’t

been intimate with Heather for some time but that it had to have come

from a dirty sex toy that they shared. Forensic Scientist, Gloria Ruiz,

testified that although unlikely, it was possible for the DNA to have

come from a sex toy. 15 RR 81-82.

     Here, there has been no finding of perjured testimony on the part

of Mo or a reliance on perjured testimony by the State. There is no proof

provided by Appellant that Mo’s hypothesis or explanation regarding

the presence of his DNA inside the victim’s anal and vaginal canals was

false. Further, there is no valid assertion by appellant that the State


                                    13
relied on the perjured testimony of Mo as far as the DNA evidence is

concerned to convict the appellant or to further the State’s case in any

way. Last, if the testimony concerning DNA given by Mo was perjured,

it is harmless error because the DNA evidence presented was explained

scientifically by Ruiz, the remainder of Mo’s testimony was corroborated

with other evidence, and the presence of his DNA in the victim was

irrelevant to the charge of capital murder and not proof of any element

of the charge. Any error by including the testimony or by not including

a perjury instruction in the charge was harmless and in no way

influenced the verdict rendered by the jury.

                        PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Appellee prays that

Appellant’s request for relief be in all things denied and that mandate

issue affirming the judgment and sentence rendered at trial.

                            Respectfully submitted,

                            /s/ / Richard A. Schmidt
                            _____________________________________
                            Richard A. Schmidt
                            S.B.N. 24043907
                            Assistant Criminal District Attorney
                            Van Zandt County
                            400 S. Buffalo, Canton, TX 75103
                            903.567.4104/903.567.6258 fx

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                     CERTIFICATE OF SERVICE

     I certify that a true and correct copy of the foregoing document
was delivered upon the Attorney for Appellant on August 31, 2015.

                                  ___/s/ / Richard A. Schmidt__

                                         Richard A. Schmidt

                   CERTIFICATE OF COMPLIANCE

      I certify that this Brief complies with Tex. R. App. P. 9.4,
specifically using 14 point Century font and in its entirety contains
2,489 words as counted by Microsoft Word.

                                  /s/ / Richard A. Schmidt
                                  ___________________________
                                  Richard A. Schmidt




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