                                                                    ACCEPTED
                                                                05-17-00346-CR
                                                      FIFTH COURT OF APPEALS
                                                                DALLAS, TEXAS
                                                              3/26/2018 4:54 PM
                                                                     LISA MATZ
                                                                         CLERK

          No. 05-17-00346-CR
     IN THE COURT OF APPEALS
                                                FILED IN
                                         5th COURT OF APPEALS
  FOR THE FIFTH DISTRICT OF TEXAS            DALLAS, TEXAS
                                         3/26/2018 4:54:09 PM
          DALLAS DIVISION                      LISA MATZ
                                                 Clerk
  _________________________________
      DENISE ROCHELLE ROSS,
             APPELLANT
                  V.
        THE STATE OF TEXAS,
              APPELLEE
 ___________________________________


      APPEAL FROM THE 204TH
      JUDICIAL DISTRICT COURT
      DALLAS COUNTY, TEXAS
______________________________________
            REPLY BRIEF
______________________________________




                Dianne Jones McVay
                4303 N. Central Expressway
                Dallas, Texas 75205
                (214) 559-8803 Office
                dianne@jonesmcvay.com

                Attorney for Appellant
                Denise Rochelle Ross
                                          Table of Contents


TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii

ARGUMENT ………………………………………………………………………3

Appellant did not act individually or as a party…………………………...………..3

Appellant did not act intentionally, knowingly, or recklessly with regard to Reid...5
CONCLUSION…………………………………………………………………….8
CERTIFICATE OF COMPLIANCE .........................................................................9
CERTIFICATE OF SERVICE ................................................................................10




                                                      ii
                            Index of Authorities


CASES


Bryan v. State, 574 S.W.2d 109 (Tex.Cr.App. 1978)………………………………2
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). ………………….……2
Conner v. State, 67 S.W.3d 192 (Tex.Crim.App. 2001). ………………………….2
Earnhart v. State, 575 S.W.2d 551 (Tex.Cr.App.1979). ………………..…….……2

Ford v. State, 571 S.W.2d 924 (Tex. Cr. App. 1978). ………………..……………2
Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007). ………………...…………2
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)………1,2
Schershel v. State, 575 S.W.2d 548 (Tex.Cr.App 1979) ……………………..……2

STATUTES
TEX. OCC. CODE ANN. § 151.002(a)(13) (Vernon Supp.2006) (emphasis
added)……………………………………………………………..………..............6




                                     iii
                 THE HONORABLE COURT OF APPEALS:


      Denise Rochelle Ross respectfully submits this reply brief in accordance

Rule 38.3 of the Texas Rules of Appellate Procure. Makes the following response.



      I.     The evidence is factually and legally insufficient to substantiate

Appellant committed the offense of Practicing Medicine without a License by

injecting Wykesha Reid with silicone thereby causing her death and/or by acting

with the intent to promote or assist Jimmy Clarke in committing the offense of

Practicing Medicine without a License and while in the course of and in

furtherance of the commission of said offense, if any, Appellant solicited,

encouraged, directed, aided Jimmy Clarke in committing an act clearly dangerous

to human life, to-wit: Jimmy Clarke injecting Wykesha Reid with silicone, a

deadly weapon, thereby causing the death of Wykesha Reid.


Standard of Review

      To assess the sufficiency of the evidence one must determine whether

after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d



                                          1
560 (1979). The fact finder must resolve conflicts in the testimony, weigh the

evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. In

analyzing legal sufficiency, it must be determined whether the necessary inferences

are reasonably based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict. Hooper v. State, 214

S.W.3d 9, 16-17 (Tex.Crim.App. 2007). The court must review "all of the

evidence" which includes evidence that was properly and improperly admitted.

Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001). When the record

supports conflicting inferences, we presume that the fact finder resolved the

conflicts in favor of the prosecution and therefore defer to that determination.

Jackson, 443 U.S. at 326.

      Direct and circumstantial evidence are treated equally. Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). “A conviction based on circumstantial

evidence cannot be sustained if the circumstances do not exclude every other

reasonable hypothesis except that of guilt of the defendant”. Schershel v. State,

575 S.W.2d 548 (Tex.Cr.App 1979); Bryan v. State, 574 S.W.2d 109 (Tex.Cr.App.

1978). Proof which amounts only to strong suspicion or mere probability is

insufficient. Ford v. State, 571 S.W.2d 924 (Tex. Cr. App. 1978). Every

circumstantial evidence case must necessarily be tested by its own facts to




                                          2
determine the sufficiency of the evidence to support the conviction. Earnhart v.

State, 575 S.W.2d 551 (Tex.Cr.App.1979).

      In response to the State’s Brief, Appellant further addresses the

following two issues:

                                    ARGUMENT


3.1   Appellant did not act individually or as a party.

      While the State acknowledges that it must prove beyond a reasonable doubt

that the Appellant is the person who committed the offense. The State argued it is

entitled to prove that a defendant acted as a party, even though the indictment

alleges only that she acted as a principal actor. To establish party liability, the State

must prove that, in addition to the illegal conduct the defendant must know that she

was assisting in the commission of the offense. (State’s Brief at 29.)

      The State claims it proved the case against Appellant because 1) DeShonte

Robinson placed Appellant at 3815 Eastside, performing butt injections, on the

evening of February 18; 2) Appellant’s DNA was the only DNA found in the entire

building, which had otherwise been cleared and cleaned before police arrived the

next morning; 3) Appellant’s phone records show that her phone was in the

vicinity of 3815 Eastside from 5:55 p.m. until 8:23 p.m., and then again from 8:43

p.m. until 9:30 p.m., before ending up in Mesquite the next day; and 4) Appellant’s



                                            3
conversations with Robinson and Clarke the next morning confirm that she was

using her phone at that time. (State’s Brief at 29.)

      1. There is no evidence what Appellant was doing at the 3815 Eastside

location. DeShonte Robinson testified that there were three people seated in the

lobby area waiting on Ms. Ross. However, she never said Ross what Ross was

doing in the room. As some point, Ms. Ross came out of the back room to tell her

to turn the radio up, and on a second occasion to tell everyone to leave. While the

State clearly had it within their means to obtain the cell tower records of Reid and

Jimmy Clarke, the chose not to. Therefore, there is no evidence that Reid or

Jimmy Clarke were present at the location during the time frame that Robinson

saw Ms. Ross at 3815 Eastside.

      2. The presences of Appellant’s DNA in the building does not establish the

date or time in which it was left and for the State to claim otherwise is clear

speculation.

      3. There is absolutely no evidence Appellant was in possession of her phone

on February 18, 2015. Furthermore, there is no evidence that Reid and Appellant

were at the 3815 Eastside location together or that Appellant and Jimmy Clarke

were at the 3815 Eastside location together.

      4. Ms. Ross’s using her cellphone to speak with Robinson and Clarke on

February 19, 2015 does not confirm that she was using her phone or possessed her


                                           4
phone, the day before on February 18, 2015. If the State wanted to prove that,

Ross was in possession of her phone on February 18, 2015, they could have

produced her’s and Reid’s texts. They also could have also, used Appellant’s

phone records to locate the individuals she communicated with on February 18,

2015 to establish when and what time Appellant actually had her telephone in her

possession.

      Finally, there is absolutely no evidence that Jimmy Clarke and Appellant

were ever together on February 18, 2015.

      Therefore, there is no evidence that Appellant practiced medicine without a

license on February 18, 2015 or that she solicited, encouraged, directed, aided

Jimmy Clarke with injecting Wykesha Reid with silicone.

      For the foregoing reasons, Appellate asks this court to vacate her conviction.


3.2 Appellant did not act intentionally, knowingly, or recklessly with regard

to Reid.

      The State argues that Appellant: 1) intentionally or knowingly practiced

medicine (nature of the conduct); and 2) knowingly or recklessly did so without a

license (circumstances of the conduct). A culpable mental state. Consequently,

when Appellant practiced medicine by injecting Reid with silicone, she acted




                                         5
knowingly or recklessly with respect to whether she had a license. (States Brief at

38-39.)


      The term “practicing medicine”- “[M]eans the diagnosis, treatment, or offer

to treat a mental or physical disease or disorder or a physical deformity or injury by

any system or method, or the attempt to effect cures of those conditions, by a

person who:


     (A) publicly professes to be a physician or surgeon; or


     (B) directly or indirectly charges money or other compensation for those

services.”


     TEX. OCC. CODE ANN. § 151.002(a)(13) (Vernon Supp.2006) (emphasis

added).


      As previously stated, there is no evidence that Appellant or Jimmy Clarke

held themselves out to the public to be physicians or surgeons. Nor is there

evidence that Appellant practiced medicine by injecting Reid with silicone on

February 18, 2015. While there were several witnesses that testified that they paid

Ross for the service of injecting silicone in their body parts. There is no evidence

that Ross received any money from Reid. Reid allegedly had 4 different butt

injections per her daughter Keira. However, there is no evidence that either Ross


                                          6
or Jimmy Clarke performed any of them. But more specifically, there is clearly no

evidence Ross or Jimmy Clarke performed the first three butt injections or that

they were compensated for those services. Additionally, there is no evidence that

Ross or Jimmy Clarke received money from Reid on February 18, 2015. The State

made no effort to obtain Reid’s bank account to show any withdraws from her

account or to obtain Ross’s or Jimmy Clarke’s bank accounts to show any bank

deposits surrounding the alleged business in general or transaction between Ross,

Jimmy Clarke and/or Reid.

      Finally, the State’s case was based on circumstantial evidence. It fails to

exclude other reasonable hypothesis except the guilt of Ms. Ross. The verdict is

based solely on the strong suspicion, speculation and mere probability. The

evidence in this case is insufficient to support a guilty verdict.




                                           7
                                  CONCLUSION

      For the reasons stated in this Reply Brief as well as her Initial Brief,

Appellant Denise Ross respectfully prays that her conviction and sentence be

vacated, and that judgment be rendered for her.




                                       /s/Dianne Jones McVay
                                       Dianne Jones McVay
                                       4303 N. Central Expressway
                                       Dallas, Texas 75205
                                       (214) 559-8803 Office
                                       State Bar of Texas No. 10010900
                                       dianne@jonesmcvay.com

                                       Attorney for Appellant




                                          8
                          CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Tex. R. App. P. 9.4

because it has been prepared in a conventional typeface no smaller than 14-point

for text and 12-point for footnotes. This document also complies with the word-

count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains (1811)

words based upon the word count function of Microsoft Word 2010, excluding any

parts exempted by Tex. R. App. P. 9.4(i)(1).


                                       /s/Dianne Jones McVay
                                       Dianne Jones McVay
                                       4303 N. Central Expressway
                                       Dallas, Texas 75205
                                       (214) 559-8803 Office
                                       State Bar of Texas No. 10010900
                                       dianne@jonesmcvay.com




                                          9
                         CERTIFICATE OF SERVICE

I, Dianne Jones McVay, do hereby certify that, on this the 26th day March, I caused

a copy of the foregoing document to be served on the Dallas County District

Attorney’s Office, 133 N. Riverfront Blvd, Dallas, Teas 75207 by email

transmission at douglas.gladden@dallascounty.org



                                      /s/Dianne Jones McVay
                                      Dianne Jones McVay
                                      4303 N. Central Expressway
                                      Dallas, Texas 75205
                                      (214) 559-8803 Office
                                      State Bar of Texas No. 10010900
                                      dianne@jonesmcvay.com




                                        10
