                                                                                  ACCEPTED
                                                                              01-15-00316-CR
                                                                   FIRST COURT OF APPEALS
                                                                           HOUSTON, TEXAS
                                                                        11/16/2015 1:33:55 PM
                                                                        CHRISTOPHER PRINE
                                                                                       CLERK

                  NO. 01-15-00316-CR
              IN THE COURT OF APPEALS
           FOR THE FIRST DISTRICT OF TEXAS                   FILED IN
                                                      1st COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                      11/16/2015 1:33:55 PM
                   HERMAN WHITFIELD                   CHRISTOPHER A. PRINE
                       Appellant                               Clerk


                             v.

                   THE STATE OF TEXAS
                         Appellee


          On Appeal from Cause Number 1976709
         Harris County Criminal Court at Law No. 14
              Honorable Mike Fields, Presiding



                  BRIEF FOR APPELLANT




ORAL ARGUMENT REQUESTED                ALEXANDER BUNIN
                                       Chief Public Defender
                                       Harris County, Texas

                                       CHERI DUNCAN
                                       Assistant Public Defender
                                       Texas Bar No. 06210500
                                       1201 Franklin, 13th Floor
                                       Houston, Texas 77002
                                       Phone: (713) 368-0016
                                       Fax: (713) 368-9278
                                       cheri.duncan@pdo.hctx.net
                                       Counsel for Appellant
               IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                            Herman Whitfield
                                      SPN# 01150846871
                                      Harris County Jail
                                      701 N San Jacinto
                                      Houston, TX 77002

TRIAL PROSECUTOR:                     J Murphy
                                      Assistant District Attorney
                                      Harris County, Texas
                                      1201 Franklin St Ste 600
                                      Houston, TX 77002

DEFENSE COUNSEL AT TRIAL:             Charlie C. Williams
                                      Attorney at Law
                                      5326 W Bellfort St Ste 215
                                      Houston, Texas 77035

PRESIDING JUDGE:                      Hon. Michael R. Fields
                                      County Court at Law #14
                                      Harris County, TX
                                      1201 Franklin St 11th Fl
                                      Houston, TX 77002

COUNSEL ON APPEAL FOR APPELLANT:      Cheri Duncan
                                      Assistant Public Defender
                                      Harris County, TX
                                      1201 Franklin St 13th Fl
                                      Houston, TX 77002




                              ii
                                                   TABLE OF CONTENTS

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

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

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

STATEMENT OF THE CASE ..................................................................................................... 1

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

          ISSUE ONE: THE  STATE’S EVIDENCE WAS LEGALLY AND FACTUALLY
          INSUFFICIENT TO PROVE THAT MR. WHITFIELD CAUSED BODILY
          INJURY TO THE COMPLAINANT.

          ISSUE TWO: TEXAS’DENIAL OF FACTUAL SUFFICIENCY REVIEW ON
          APPEAL OF CRIMINAL TRIALS VIOLATES THE CONSTITUTIONAL
          GUARANTEES OF EQUAL PROTECTION AND DUE PROCESS.

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

SUMMARY OF THE ARGUMENT ............................................................................................. 2

ARGUMENT ............................................................................................................................. 3

ISSUE ONE ............................................................................................................................... 3

     A. STANDARD OF REVIEW ............................................................................................... 3

     B. ARGUMENT .................................................................................................................. 3

ISSUE TWO ............................................................................................................................... 5

PRAYER .................................................................................................................................. 10

CERTIFICATE OF SERVICE .................................................................................................... 11

CERTIFICATE OF COMPLIANCE ........................................................................................... 11



                                                                    iii
                                            INDEX OF AUTHORITIES

Cases

Barnett v. State, 2009 WL 3050831 *3 (Tex. App. – Houston [1st Dist.] Sept. 24, 2009,
  no pet.)(mem. op., not designated for publication) ........................................................ 4

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ................................................ 6, 9

Brooks v. State, 967 S.W.2d 946 (Tex. App. – Austin 1998, no pet.) ................................. 3

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) ..................................................... 9

Griffin v. Illinois, 351 U.S. 12 (1956)....................................................................................... 5

In Re Winship, 397 U.S. 358 (1970) ....................................................................................... 7

Jackson v. Virginia, 443 U. S. 307 (1979) ............................................................................... 7

Lane v. State, 763 S.W.2d 785 (Tex. Crim. App. 1989) ....................................................... 5

M.L.B. v. S.L.J., 519 U.S. 102 (1996) .................................................................................... 5

Matlock v. State, 392 S.W.3d 662 (Tex. Crim. App. 2013) .................................................. 3

Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014) ........................................................ 8

Price v. State, 456 S.W.3d 342 (Tex. App. – Houston [14th Dist.] 2015, pet. ref’d).......... 3

Shah v. State, 403 S.W.3d 29 (Tex. App. – Houston [1st Dist.] 2013, pet. ref’d) .............. 4

Trevino v. Thaler, 133 S.Ct. 1911 (2013) ................................................................................. 6


Statutes

TEX. PENAL CODE § 1.07(8) ................................................................................................. 3

TEX. PENAL CODE § 22.01 .................................................................................................... 3



                                                               iv
Constitutional Provisions

TEX. CONST. ART. 1 § 10.................................................................................................... 8, 9

TEX. CONST. ART. 1 § 19 ........................................................................................................ 6

U.S. CONST. AMEND. V ................................................................................................. 6, 8, 9

U.S. CONST. AMEND. XIV............................................................................................. 6, 8, 9




                                                                v
                               STATEMENT OF THE CASE

       Herman Whitfield was convicted of misdemeanor assault by a Harris County jury

on March 30, 2015 (CR at 62). He waived sentencing by jury, and the trial judge assessed

punishment at 90 days in the Harris County Jail. Judgment was entered on March 30,

2015 (CR at 64), and notice of appeal was filed the same day (CR at 67). No motion for

new trial was filed.

                                 ISSUES PRESENTED

       ISSUE ONE: The state’s evidence was legally and factually
       insufficient to prove that Mr. Whitfield caused bodily injury to the
       complainant.

       ISSUE TWO: Texas’ denial of factual sufficiency review on appeal of
       criminal trials violates the Constitutional guarantees of equal
       protection and due process.

                                STATEMENT OF FACTS

       Herman Whitfield called Comcast to his home in August, 2014, to repair his

telephone and Internet lines (RR at 57). Technician Michael Grant was dispatched to

respond to the call. After he completed the repairs listed on his work order and a few

additional services, Mr. Whitfield asked him to connect his television to his WiFi. Mr.

Grant testified that he tried, but the problem actually was with the television set, not

the WiFi network (RR at 60).

       According to Mr. Grant, Mr. Whitfield became angry when he tried to leave the

home, insisting that he could not leave until he fixed the connection. Mr. Grant said


                                           1
that when it appeared that Mr. Whitfield would not let him leave, he asked Mr. Whitfield

if Mr. Grant needed “to make a phone call,” meaning, to call 911. Mr. Whitfield then

hit him in the left eye, Mr. Grant testified (RR at 62).

       Mr. Grant was “surprised, taken aback,” he testified (RR at 62). He felt it, but

the pain came later, when he got outside into the heat and began to sweat, causing a

scratch under his eye to burn (RR at 65). Mr. Grant cleaned the area using his first aid

kit and did not require medical treatment (RR at 69). The state offered three photos of

Mr. Grant’s eye into evidence (SX 2-4).

       Houston police officer J.D. Newberry, who went to Mr. Whitfield’s home to

investigate the incident, testified that Mr. Grant had some “small swelling” under his

eye, and what looked like a little cut (RR at 83). However, Mr. Whitfield’s 22-year-old

grandson, Tommy Winn, testified that when he pulled up into his grandfather’s

driveway, he met Mr. Grant and there were no scratches or bruises on him. Mr. Grant’s

face was clear (RR at 97).

                                SUMMARY OF THE ARGUMENT

       The merging of legal and factual sufficiency review standards violates defendants’

U.S. and Texas Constitutional rights to meaningful review. This Court should review

Mr. Whitfield’s case using both standards of review. However, the evidence was

insufficient under either standard, because the state did not prove either that Mr.

Whitfield had the necessary mens rea for the offense of assault as alleged in the

complaint, nor that his conduct caused the required result, bodily injury.
                                             2
                                      ARGUMENT

      ISSUE ONE: The state’s evidence was legally and factually
      insufficient to prove that Mr. Whitfield caused bodily injury to the
      complainant.

A.    Standard of review

      When this Court reviews the legal sufficiency of the evidence, it examines all the

evidence in the light most favorable to the verdict and determines whether a rational

trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. See Price v. State, 456 S.W.3d 342, 346 (Tex. App. – Houston [14th Dist.] 2015,

pet. ref’d). Factual sufficiency review examines the totality of the evidence in a neutral

light. See Matlock v. State, 392 S.W.3d 662, 671 (Tex. Crim. App. 2013).

B.    Argument

      Assault is a result-of-conduct offense. See Brooks v. State, 967 S.W.2d 946 (Tex.

App. – Austin 1998, no pet.). A person commits the offense if he intentionally,

knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE § 22.01.

“Bodily injury” means physical pain, illness or any impairment of physical condition.

TEX. PENAL CODE § 1.07(8). The complaint in this case limits the mens rea to

intentionally and knowingly (CR at 6). Accordingly, the jury charge was properly

limited, and the jurors could only find Mr. Whitfield guilty if they agreed that he

intended to cause bodily injury, or knew that he was likely to cause bodily injury, to Mr.

Grant. There was insufficient evidence for the jury to find that the state proved this

element of assault, even assuming that the state proved that Mr. Whitfield actually hit

                                            3
Mr. Grant.

       Mr. Grant’s own testimony was that he was surprised and taken aback, not

physically hurt, by Mr. Whitfield’s action (RR at 63). The state’s photographs do not

show any physical impairment, and there was no evidence that Mr. Grant became ill as

a result of this incident. The prosecutor tried to establish that Mr. Grant felt pain at the

time he was hit, but Mr. Grant would say only that he “definitely felt it” and that the

pain came later from the scratch itself, “once I got outside in the sun and sweat started

beading down and burning” (RR at 65).

       This Court has said that a jury may infer pain from the facts of an altercation,

but that broad language was qualified by the Court’s review of the particular evidence

from which the jury could have drawn its inference. See Barnett v. State, 2009 WL

3050831 *3 (Tex. App. – Houston [1st Dist.] Sept. 24, 2009, no pet.)(mem. op., not

designated for publication). In Barnett, the complainant was cut by shattered glass and

bled from the cuts. Additionally, neighbors saw the defendant attacking her and heard

her scream that he was hurting her. Id. The state had additional evidence to support a

reasonable inference that the complainant suffered pain. Similarly, in Shah v. State, the

evidence showed that the defendant head-butted the complainant and caused bleeding

from the bridge of his nose to bleed. See Shah v. State, 403 S.W.3d 29, 34-5 (Tex. App.

– Houston [1st Dist.] 2013, pet. ref’d).

       In this case, there is no evidence about how Mr. Whitfield hit Mr. Grant, or with


                                             4
how much force. The state did not prove that the alleged blow was more than a mere

“offensive touch,” which is not sufficient to establish bodily injury. See Lane v. State, 763

S.W.2d 785, 786 (Tex. Crim. App. 1989)(Definition of bodily injury “seems to

encompass even relatively minor physical contacts so long as they constitute more than

mere offensive touching.”). There was no blood, no broken glass, no sutures; just some

stinging when Mr. Grant began to sweat later, when he got outside the home.

       Further, the rest of Mr. Whitfield’s alleged conduct does not support an inference

that he intended or knew that he might cause pain to Mr. Grant. The most the evidence

shows is that he intended to get Mr. Grant to stop and repair his television (RR at 61).

While the evidence might have shown recklessness, it fell far short of showing any

intent or knowledge. Because the state did not charge Mr. Whitfield with recklessness,

he could not be convicted on that basis. The evidence was legally and factually

insufficient to prove: 1) mens rea; and 2) result, i.e., bodily injury.

       ISSUE TWO: Texas’ denial of factual sufficiency review on appeal of
       criminal trials violates the Constitutional guarantees of equal
       protection and due process.

       If a state gives criminal defendants a right to appeal, the process of appellate

review must be consistent with the requirements of due process, due course of law, and

equal protection. See Griffin v. Illinois, 351 U.S. 12, 18 (1956). The Supreme Court's

decisions concerning access to judicial processes reflect both equal protection and due

process concerns. “(I)n the Court's Griffin-line cases, ‘[d]ue process and equal protection

principles converge.’ … The due process concern homes in on the essential fairness of
                                              5
the state-ordered proceedings anterior to adverse state action.” M.L.B. v. S.L.J., 519

U.S. 102, 120 (1996) (citations omitted). See, also, U.S. CONSTIT. AMEND. V, XIV; TEX.

CONSTIT. ART. 1 § 19.

      In a 2013 criminal case from Texas, the Supreme Court said: “[F]or present

purposes, a distinction between (1) a State that denies permission to raise [a] claim on

direct appeal and (2) a State that in theory grants permission but, as a matter of

procedural design and systemic operation, denies a meaningful opportunity to do so is

a distinction without a difference.” Trevino v. Thaler, 133 S.Ct. 1911, 1921 (2013). In

Trevino, the Supreme Court concluded that Texas law did not offer a meaningful

opportunity for defendants to present a claim of ineffective assistance of trial counsel

on direct appeal. Because of this problem, which the Court considered to be structural

constitutional error, the Court decided that the defendant was not procedurally barred

from raising a federal habeas claim of ineffective assistance. Trevino, 133 S.Ct. at 1921.

      Besides the problem identified in Trevino, Texas jurisprudence has created

another barrier to meaningful review of criminal convictions – specifically, review of

whether the state has proved its case beyond a reasonable doubt. This problem arose

after Brooks “merged” legal and factual sufficiency reviews. See Brooks v. State, 323

S.W.3d 893, 894-5 (Tex. Crim. App. 2010).

      The reasonable doubt standard

      is indispensable to command the respect and confidence of the
      community in applications of the criminal law. It is critical that the moral
      force of the criminal law not be diluted by a standard of proof that leaves
                                            6
       people in doubt whether innocent men are being condemned. It is also
       important in our free society that every individual going about his ordinary
       affairs have confidence that his government cannot adjudge him guilty of
       a criminal offense without convincing a proper factfinder of his guilt with
       utmost certainty.

In re Winship, 397 U.S. 358, 364 (1970). Similarly, the “moral force of the criminal law”

should not be diluted by a standard of review that leaves people in doubt whether

innocent people are being condemned. Yet the current standard of review, legal

sufficiency as defined in Jackson v. Virginia, 443 U. S. 307 (1979), creates the very

problem described in Winship.

       When reviewing courts limit their analysis to the evidence supporting the verdict,

as appellate courts now must do, they can never reach the real question in every criminal

case: did the state prove beyond a reasonable doubt that the defendant was guilty? If all

evidence contrary to the verdict must be ignored, no matter how overwhelming it was,

a reviewing court has no way to evaluate whether a rational juror would have a

reasonable doubt. A juror’s doubt arises from consideration of all the evidence, not just

the state’s evidence. Factual sufficiency review, too, considers all the evidence; legal

sufficiency review does not.

       The “merging” of the legal and factual sufficiency standards of review is not

facially problematic, but, as in Trevino, the systemic operation of the Brooks rule makes

it highly unlikely that a defendant will have a meaningful review of evidentiary

sufficiency issues. Also troubling, from both Constitutional law and public policy

standpoints, is the fact that Texas still gives factual sufficiency review to civil cases, but
                                              7
not to most criminal cases. This disparate treatment of citizens in the courts violates

the equal protection guarantees in the U.S. and Texas Constitutions. See U.S. CONST.

AMEND. XIV; TEX. CONSTIT. ART. 1 § 10. Further, no legitimate public policy reason

justifies giving greater appellate review to civil litigants than to persons facing the loss

of life or liberty.

       On the criminal side of the docket, factual sufficiency review still lives in certain

cases, as the Court of Criminal Appeals last year affirmed. See Moon v. State, 451 S.W.3d

28, 45-6 (Tex. Crim. App. 2014): “Facts which must be proven by a preponderance of

the evidence are ordinarily susceptible to appellate review for factual sufficiency. …

Indeed, even in criminal cases, we have said that the courts of appeals may conduct

factual-sufficiency reviews when confronted with fact issues for which the burden of

proof is by a preponderance of the evidence.” This raises additional equal protection

and due process concerns. Some felony defendants (certified juveniles; defendants in

revocation of probation and motion to adjudicate proceedings) get both factual and

legal sufficiency reviews on appeal, but others (adults after trials or after guilty pleas

with sentencing hearings) get only legal sufficiency review. In addition to the equal

protection problem, the different treatment of different criminal defendants raises

significant questions about what possible policy interests could justify such disparate

treatment of similarly-situated people.

       The problem can be illustrated with a simple and not-unlikely hypothetical: two

co-defendants are equally culpable as parties for aggravated robbery (both are armed
                                             8
with guns, and both threaten the complainant from the same distance, at the same time).

Defendant 1 is already on community supervision for an unrelated aggravated robbery.

The state moves to revoke his probation based on his commission of the second

aggravated robbery. The judge grants the motion, finding by a preponderance of the

evidence that he committed the second robbery, and sentences him to 50 years in

prison. Defendant 2 is convicted of the second aggravated robbery after a jury finds

him guilty beyond a reasonable doubt. He, too, is sentenced to 50 years in prison. On

appeal, Defendant 1 will be able to argue both the legal and factual sufficiency of the

evidence supporting the trial court’s finding that he committed the second aggravated

robbery, because the state’s burden of proof in a probation revocation hearing is by a

preponderance of the evidence. However, Defendant 2 will only be able to argue the

legal sufficiency of the evidence to support his conviction for that same offense. This

surely violates traditional due process notions of fair play and substantial justice, as well

as the right to equal protection of the law. U.S. CONSTIT. AMENDS. V, XIV; TEXAS

CONSTIT. ART. 1 § 10.

       Even if the evidence were legally sufficient to convict Ms. Whitfield of

misdemeanor assault, it was not factually sufficient under the pre-Brooks standard, which

required the appellate courts to view the evidence in a neutral light, not in the light most

favorable to the verdict. See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996),

overruled by Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). If this Court finds

the evidence was legally sufficient on each element of the offense, it still should overturn
                                             9
Mr. Whitfield’s conviction due to the factual insufficiency of the evidence that he caused

serious bodily injury to the complainant.

                                        PRAYER

      Mr. Whitfield respectfully requests the Court to reverse his conviction and render

a judgment of acquittal due to the legal or factual insufficiency of the evidence.

                                                 Respectfully submitted,

                                                 ALEXANDER BUNIN
                                                 Chief Public Defender
                                                 Harris County Texas

                                                 /s/ Cheri Duncan
                                                 ______________________________
                                                 CHERI DUNCAN
                                                 Assistant Public Defender
                                                 Texas Bar No. 06210500
                                                 1201 Franklin, 13th floor
                                                 Houston Texas 77002
                                                 (713) 368-0016 telephone
                                                 (713) 437-4318 e-fax
                                                 cheri.duncan@pdo.hctx.net




                                            10
                             CERTIFICATE OF SERVICE

      I certify that a copy of this brief was served electronically on the Harris County

District Attorney’s Office on November 16, 2015

                                                /s/ Cheri Duncan
                                               ______________________________
                                               CHERI DUNCAN



                           CERTIFICATE OF COMPLIANCE

I certify that this brief complies with Rule 9.2, TEX. R. APP. PROC. It was prepared on

a computer using 14-point Garamond type. It contains 2,443 words.



                                               /s/ Cheri Duncan
                                               _____________________________
                                               CHERI DUNCAN




                                          11
