                                                                                  ACCEPTED
                                                                              06-14-00097-CR
                                                                   SIXTH COURT OF APPEALS
                                                                         TEXARKANA, TEXAS
                                                                        4/22/2015 10:30:13 AM
                                                                             DEBBIE AUTREY
                                                                                       CLERK

             IN THE COURT OF APPEALS FOR THE
          SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                          FILED IN
                                                   6th COURT OF APPEALS
                                                     TEXARKANA, TEXAS
WILLIE FRANK JACKSON         §                     4/22/2015 10:30:13 AM
   APPELLANT                 §                          DEBBIE AUTREY
                             §                              Clerk
    v.                       §      No. 06-14-00097-CR
                             §
THE STATE OF TEXAS,          §
   APPELLEE                  §




                       STATE'S BRIEF



          ON APPEAL FROM THE 354th DISTRICT COURT
                   HUNT COUNTY, TEXAS

            TRIAL COURT CAUSE NUMBER 29,295
    THE HONORABLE RICHARD A. BEACOM, JUDGE PRESIDING

                                 NOBLE D. WALKER, JR.
                                 Hunt County District Attorney
                                 P.O. Box 441
                                 Greenville, Texas 75403-0441
                                 (903) 408-4180- Telephone
                                 (903) 408-4296- Facsimile
                                 nwalker@huntcounty .net - email
                                 State Bar Number- 20717620
                                         TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................... i

INDEX OF AUTHORITIES .................................................................................. ii

SUMMARY OF THE STATE'S ARGUMENTS ................................................. 2

STATE'S RESPONSE TO POINTS OF ERROR ONE .................................. 3-6
    Each required element was proven beyond a reasonable doubt;
    therefore, the evidence is legally sufficient to prove that Appellant
    is guilty of Possession of Cocaine as charged in the indictment.

STATE'S RESPONSE TO POINTS OF ERROR TW0 ........................ 6-ll
    The Trial Court did not commit error by allowing the Appellant to
    be restrained during trial.

PRAYER................................................................................................................. 11

CERTIFICATE OF SERVICE ............................................................................ 12

CERTIFICATE OF COMPLIANCE TYPEFACE/WORDCOUNT ............ 12
                                   INDEX OF AUTHORITIES

Jackson v. Virginia, 433 US 307, 99 S.Ct. 2781 (1979) ......................................... 3

Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999)
Cert. denied, 529 U.S. 1131(2000) ........................................................................... 3

Long v. State, 823 S. W .2d 259 (Tex.Crim.App 1991 ) ........................................... 9

Snowden v. State 353 S.W.3d 815 (Tex.Crim.App 2011) .................................... 10


Texas Statutes
TEXAS PENAL CODE, SECTION 29.01 (!) .................................................................. 5




                                                                                                            11
                  IN THE COURT OF APPEALS FOR THE
               SIXTH DISTRICT OF TEXAS AT TEXARKANA


WILLIE FRANK JACKSON                      §
   APPELLANT                              §
                                          §
      v.                                  §      No. 06-14-00097-CR
                                          §
THE STATE OF TEXAS,                       §
   APPELLEE                               §




                                 STATE'S BRIEF



TO THE HONORABLE COURT OF APPEALS:

      NOW COMES the STATE OF TEXAS, Appellee, in this appeal from Cause
No. 29,295 in the 354th Judicial District Court in and for Hunt County, Texas,
Honorable Judge Richard A. Beacom, Presiding, now before the Sixth District
Court of Appeals, and respectfully submits this its brief to the Sixth District Court
of Appeals in support of the judgment of conviction and sentence in the court
below.




                                                                                   lll
                SUMMARY OF THE STATE'S ARGUMENTS


      Each required element was proven beyond a reasonable doubt; therefore, the

evidence is legally sufficient to prove that Appellant is guilty of Aggravated

Robbery as charged in the indictment.

      The record does not reflect that the Jury observed Appellant's "shock belt

restraint". Additionally, assuming arguendo that the Jury did observe the "shock

belt", Appellant did not object to such. And finally, based upon a totality of the

record, if the Trial Court committed error, it was harmless.

      The jury was rationally justified in making their decision at both

guilt/innocence and punishment and it should not be overturned. As there was no

prejudicial error in this case, Appellant's Points of Error should be denied and his

conviction affinned.




                                                                                       2
             STATE'S RESPONSE TO POINTS OF ERROR ONE

Each required element was proven beyond a reasonable doubt; therefore, the
evidence is legally sufficient to prove that Appellant is guilty of Aggravated
Robbery as charged in the indictment.

                             Argument and Authorities

      The proper standard of review to determine legal sufficiency is whether

considering all of the evidence in the light most favorable to the verdict, was a jury

rationally justified in finding guilt beyond a reasonable doubt? Jackson v.

Virginia, 433 U.S. 307, 319, 99 S.Ct. 2781 (1979). This standard means that the

reviewing court is required to defer to the jury's credibility and weight

determinations because the jury is the sole judge of the witnesses' credibility and

the weight to be given their testimony. !d. When perfonning a legal sufficiency

review, the court may not sit as a thirteenth juror, re-evaluating the weight and

credibility of the evidence and substituting its judgment for that of the fact finder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529

u.s. 1131 (2000).
      In the present case, the State was required to prove beyond a reasonable

doubt that: 1) on May 21, 2013, 2) in Hunt County, Texas, 3) the Appellant, 4) did

then and there while in the course of committing theft and with intent to obtain or

maintain control of property, 5) intentionally, knowingly, or recldessly cause




                                                                                         3
bodily injury to Steven Cook, 6) by shooting him in the leg or body, 7) and that a

fireann was used in the commission of the offense.


      In regards to date and location, those elements were not contested and the

Victim, Steven Cook testified that the offense occurred on May 21, 2013 in Hunt

County, Texas. (RR Vol. 10 p. 14-15). Furthermore the Defendant was identified

in the comiroom by the Victim (RR Vol. 10 p. 18) and Officer Huddleston (RR

Vol. 10 p. 144). Also, the Victim was 100% certain that he had identified the

Appellant in a photo line-up. (RR Vol. 10 p. 136-138). In regards to proving that

the Appellant committed theft with intent to obtain or maintain control of property,

the Victim testified as follows: (RR Vol. 10 p. 23-24):


      Q.     Okay. And then what- what was the defendant's response? What
             did he do?

      A.     He said, Where's it at? And then I said, What, you know. And he
             goes, Where's your wallet? And I told him everything was in the
             console.

      Q.     What did he do after that?

      A.     He went back to the truck and got my wallet and stuff out of the
             console.

      The Victim testified that he observed the Appellant rummaging through his

truck. (RR Vol. 10 p. 24). He also testified that he asked Damien to go look in his

truck to detennine what's gone. (RR Vol. 10 p. 29). The Victim went on to testify

that the next morning he returned to his truck to find that his keys, wallet, and


                                                                                     4
pistol were missing from his truck. (RR Vol. 10 p. 35). Although the Victim

never recovered his pistol or keys, he did locate his wallet and found that $40.00

was missing. (RR Vol. 10 p. 35-37).


      In regards to the Appellant causing the Victim bodily injury by shooting him

with a firearm, while in the course of committing theft, the Victim testified as

follows: (RR Vol. 10 p. 20- 21):


      A.     Okay. I just, you know, opened the door, was like, What's up, What's
             going on? And he took his hand out of the oven mitt and had a pistol
             in his hand and he hit me between my eyes and it stunned me for a
             minute. And I said, What's going on, you know; and then he pointed
             the gun at my forehead and pulled the trigger and it clicked.

             And he said, That one's free, motherfucker. And he said, You better
             move. And I said, What do you mean? And then he shot me.

The Texas Penal Code, Section 29.01 (1) defines "In the course of committing

theft" as conduct that occurs in an attempt to commit, during the cmmnission, or in

immediate flight after the attempt or cmmnission of theft. Immediately after

shooting Mr. Cook, the Appellant stood over him and asked where his wallet was

located. (RR Vol. 10 p. 20-25). Based on testimony, the shooting ofMr. Cook

clearly occuned during the commission or in immediate flight after the

commission of theft.




                                                                                     5
-------- ---------------------------




          The victim went on to testify that the Appellant had shot him in the leg. (RR

    VallO p. 21-22). Furthermore, the Victim testified before the Jury and showed

    them his wounds from the gunshot. (RR Vol. 10 p. 31-33).

          Later in the trial, Investigator Felicia White testified. (RR Vol. 10 p. 97-

    131). During the course of her investigation, Investigator White listened to certain

    recorded jail calls the Appellant had made. In one of those calls, the Appellant

    inadvertently admitting to the aggravated robbery of Mr. Cook. While speaking

    with an individual named Fran, the Appellant requested that she ask Terry to tell
                                -
    the white boy, "Things wouldn't have gone down that way if it wasn't for the

    water". (RR Vol 10 p. 115-116). Investigator White went on to explain that

    "water" is the street term for PCP. (RR Vol. 10 p. 116).

          The jury heard sufficient evidence to find each of the required elements

    beyond a reasonable doubt and to find Appellant guilty of Aggravated Robbery

    with a Deadly Weapon as alleged in the indictment. Therefore, Appellant's Point

    of Enor Number One should be denied and his conviction affinned.

                 STATE'S RESPONSE TO POINT OF ERROR TWO

    The Trial Court did not commit error by allowing the Appellant to be
    restrained during trial.

                              Argument and Authorities

          Despite Appellant's argument, there is no indication in the record that either

    the Trial Court allowed Appellant to be fitted with a "shock belt" or that the Jury


                                                                                          6
saw Appellant wearing a "shock belt". During the punishment phase of the trial,

the State was attempting to offer photographs of the Appellant's tattoos. Defense

counsel objected on the grounds that the witness did not have personal knowledge

that the photos accurately depicted the Appellant's tattoos. (RR Vol. 11 p. 35-36).

Consequently, the State requested that the Appellant take off his shirt so that the

Jury could see his tattoos. (RR Vol. 11 p. 36). The following is the only reference

in the record as to the "shock belt":. (RR Vol. 11 p. 36-38)

      Q.     (By Ms. Hudgeons) Then I would ask that the defendant remove his
             shirt and show the jury so that they can all properly authenticate it if
             he's going to refuse to take his shirt off to show the witness.

             MS. FERGUSON: You want to take your shirt off-

             MS. HUDGEONS: We can do that in private or in front of the jury.

             THE COURT: All right.

             MS. FERGUSON: So do you want to do it in front of the jury or do
             you want to do it in just a little bit?

             DEFENDANT: I'll do it right here in front of the jury. It don't
             matter.

             THE COURT: All right. If you'll step over here and raise your shirt
             and show them your tattoos.

             MS. FERGUSON: Hold on, Your Honor, just a second. Can we
             approach? Just a second, Mr. Jackson.

             (Discussion at the Bench, on the record)

             MS. FERGUSON: They put a shock belt-



                                                                                        7
MS. HUDGEONS: If he's willing to take his shirt off, then let him
take his shirt off.

MS. FERGUSON: No. No. No. No. No. What I'm saying is-

THE COURT: He's already taken his shirt off.

MS. FERGUSON: Huh?

THE COURT: His shirt's off.

MS. FERGUSON: Oh, nevennind. Nevermind.

(Open court, defendant and jury present)

THE COURT: All right. If you'd step over in front of the jury, sir.

MS. HUDGEONS: And since this is the witness that's testifying, if
we could show the witness? That's really the only person I need to
see them. That's far enough.

THE COURT: All right. Let the record reflect the defendant has
removed his shirt and has marched in front of the jury so they could
see any tattoos that he might have.

Q.     (By Ms. Hudgeons) Okay. Now that you've had the
opportunity to view the defendant's tattoos, can you testify to State's
Exhibits Nos. 21 through 25 fairly and accurately reflect those
tattoos?

A.    Yes, ma'am, they do.

MS. HUDGEONS: I'll, again, offer State's Exhibits Nos. 21 tlu·ough
25, which have been previously tendered to the defense.

(State's Exhibit Nos. 21, 22, 23, 24, 25 offered)

MS. FERGUSON: No objection to these, Your Honor.

THE COURT: All right. State's 21 through 25 are admitted.


                                                                          8
      From the record, there is no mention that the Jury ever saw a "shock belt".

In fact, the only reference to a "shock belt" was made by Defense Counsel at the

bench and there's no indication from the record as to the context of her comment

or that her statement was heard by the Jury. Furthennore, not only was there no

objection raised concerning the "shock belt", once Appellant had removed his shili

on his own accord, Defense Counsel ended the discussion at the bench and stated,

"Oh, nevermind. Nevermind".

      The State would argue that a "shock belt" isn't exactly the same as shackles,

leg irons, or handcuffs. Historically, the use of those devices are arguably quite

common within the understanding of most individuals. To the contrary, a "shock

belt" could easily be unidentifiable to a person who is not familiar with the device.

In this case, there is no indication in the record that the Jury observed Appellant's

"shock belt". Assuming arguendo that a "shock belt" is analogous to handcuffs or

shackles, case law provides, "Where there is no evidence the jury saw a

defendant's restraints, the error will be held harmless." Long vs. State, 823 S.W.2d

259 (Tex.Crim.App. 1991).

      Assuming that the Jury did see the "shock belt", it is the State's position that

any enor that may have resulted is harmless. In determining any resulting harm,

Comi's should consider (a) the nature of the error, (b) the extent emphasized by the

State, (c) the probable collateral implications, and (d) the weight the jury may have

                                                                                        9
given the error in their deliberations. Snowden vs. State, 353 S.W.3d 815,821-22

(Tex.Crim.App. 2011). Here, it is difficult to assess the nature of the error because

the record does not provide any reference to the Jury having seen the "shock belt"

nor was an objection lodged to bring the matter to the Jury and/or the Court's

attention. However, a clear reading of the record shows that any resulting error

wasn't deliberate. The Appellant removed his shirt voluntarily while a bench

conference on the matter was presumably about to occur. In fact, the Appellant

stated that he would remove his shirt right in front of the Jury; that it didn't matter.

(RR Vol. 11 p 36). In regards to the second prong of Snowden, the entirety of the

record does not provide a single entry where the State emphasized the matter, at

all. And finally, considering the last two (2) prongs of Snowden, there was ample

evidence offered during the punishment phase to support Appellant's sentence. In

fact, he was considered a habitual criminal with his punishment range enhanced to

25 to 99 years or life. In light of the nature of the offense and the Appellant's

priors, the Jury had ample evidence to support their sentence and there's no

evidence that the "shock belt" contributed to the prison sentence rendered by the

Jury. The sentence Appellant received was appropriate for the crime he was

convicted of and justified by the evidence presented during the sentencing hearing.

      The record does not support that the Jury saw the Appellant's "shock belt"

nor was there an objection to bring the matter to the attention of the Trial Court



                                                                                      10
and to preserve error. In the event the Jury did see the "shock belt" and/or it's

detennined to be error, it is the State's position that any resulting error is harmless

since the jury heard sufficient evidence during the punislunent phase to warrant the

Appellant's sentence.

                                      PRAYER

      Appellant's trial was without prejudicial or fundamental error. The State

prays that Appellant's conviction and sentence be affirmed.


                                               Respectfully submitted,




                                               Greenville, Texas 75403-0441
                                               (903) 408-4180- Telephone
                                               (903) 408-4296- Facsimile
                                               nwalker@huntcounty.net- email
                                               State Bar Number - 20717 620




                                                                                      11
                          CERTIFICATE OF SERVICE


      A true copy of the State's brief has been placed in the box of Jason Duff,

Appellant's attorney, in the Hunt County District Clerk's office, today April22,

2015, pursuant to local rules.




                                                         . WALKER, JR.
                                                        nty District Attome



 CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

      In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the
undersigned attorney of record certifies that Appellees Brief contains 14-point
typeface of the body of the brief, 12-point typeface for footnotes in the brief and
contains 2,583 words, excluding those words identified as not being counted in
appellate rule of procedure 9.4(i)(l), and was prepared on Microsoft Word 2007.




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