                         PD-1354-15

                                NO.

                   TO THE COURT OF CRIMINAL APPEALS
                         OF THE STATE OF TEXAS


                            NO. 10-15-0067-CR


                       IN THE COURT OF APPEALS

                               FOR THE

           TENTH SUPREME JUDICIAL DISTRICT OF TEXAS

                           AT WACO, TEXAS


                     CHRISTOPHER DAVID HARVEY,
                              Appellant

                                   V.
October 16, 2015
                         THE STATE OF TEXAS,
                               Appellee


               PETITION FOR DISCRETIONARY REVIEW


JOHN DONAHUE                    ATTORNEY FOR APPELLANT
TBA #05968300                   CHRISTOPHER DAVID HARVEY
        th
204 N. 6 St.
Waco, Texas 76701
(254) 752-9090
(254) 753-1232 FAX
Texascriminalattorney@yahoo.com

                      ORAL ARGUMENT REQUESTED
                                       SUBJECT INDEX                                                                  PAGE

Identification of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

List of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

                                          GROUND FOR REVIEW

      Whether the evidence was legally insufficient to prove that Harvey
caused the injury.

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Procedural History of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts Pertinent To Petitioner's
 Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Ground for Review (Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Reasons for Review as to Ground for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Arguments and Authorities in Support of Petitioner’s Ground for Review . . . . . . 3

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

APPENDIX - Opinion of 10th Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . end




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              STATEMENT REGARDING ORAL ARGUMENT

      Petitioner respectfully asserts that this Court would be aided in the resolution

of the matters which are the subject of this Petition for Discretionary Review if oral

argument were granted. Therefore, Petitioner respectfully requests that this Court set

this case for oral argument.

                    IDENTIFICATION OF THE PARTIES

      Pursuant to Tex.R.App. 68.4(a), a complete list of the names of all interested

parties is provided below:

Abelino “Abel” Reyna - District Attorney of McLennan County, Texas
Robert Moody, Evan O’Donnell - Assistant District Attorneys
219 N. 6th St., Waco, TX 76701

Christopher David Harvey - Appellant
#02016029
Byrd Unit
21 FM 247
Huntsville, TX 77320

Felipe “Phil” Martinez - Counsel for Appellant in trial court
1105 Wooded Acres, Suite 200, Waco, TX 76710

John Donahue - Counsel for Appellant on appeal
204 N. 6th St., Waco, TX 76701

Hon. Ralph T. Strother - Presiding Judge




                                         ii
                                      LIST OF AUTHORITIES

CASES                                                                                                    PAGE

Stone v. State, 919 S.W.2d 424 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . 4

Breaux v. State, 16 S.W.3d 854 (Tex. App. Houston 14th Dist. 2000, pet ref’d) . 4

Johnson v. State, 978 S.W.2d 703 (Tex. App. Corpus Christi 1998),
     aff’d 23 S.W.3d 1 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 4


STATUTES

Tex. Penal Code §22.01 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp. 2013) . . . . . . . . . . . . 4




                                                       iii
                         STATEMENT OF THE CASE

             This is an appeal from a jury trial in the 19th District Court, McLennan

County, Texas, the Honorable Ralph T. Strother, presiding, Cause Number 2013-840-

C1. The State instituted proceedings against the Appellant, Christopher David

Harvey, for the offense of assault on a public servant, a third degree felony. Tex.

Penal Code §22.01. There were two enhancement allegations which made the range

of punishment 25 years to life in prison. Tex. Penal Code §12.42(d). Harvey pleaded

not guilty and a jury trial commenced. Harvey was convicted and punishment was

assessed by the jury at 65 years in TDC. No fine was imposed.



     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      On February 25, 2015, Mr. Harvey timely filed his Amended Notice of Appeal.

His brief was filed on July 21, 2015. The State’s reply brief was filed on August 18,

2015. On September 17, 2015, the Tenth Court of Appeals issued an opinion

overruling Harvey’s points of error and affirming his conviction.

      No motion for rehearing was filed. This petition for discretionary review is

being filed within 30 days of the Court of Appeal’s opinion.




                                         1
                            STATEMENT OF FACTS

      On April 9, 2013, two deputies with the McLennan County Sheriff’s Office

went to 2615 Bosque Blvd to serve an arrest warrant on Harvey. (R. 4, ppg. 15, 36).

As the deputies were pulling up to the house, so was the homeowner, Rebekah

Rosario. She gave the deputies consent to enter the house. (R. 3, pg. 37). Once

inside, they told Harvey to turn around and put his hands behind his back. (R. 3, pg.

40). It appeared to the deputies that Harvey did not really want to comply, so they

both grabbed hold of Harvey. Deputy Mabry grabbed her cuffs. (R. 3, pg. 40). The

Deputies testified that Harvey hit Mabry with his shoulder causing her to fall to the

ground. In the course of getting back up, Mabry and Ewing became entangled and

Ewing lost his hold on Harvey, who was able to escape out the front door. (R. 3, ppg.

20, 41-42). Both deputies were wearing uniforms that included long, BDU type

pants. (R. 3, pg. 43). After he escaped, they spent several hours looking for Harvey.

Some of the search included looking into a crawl space underneath the house. (R. 3,

pg. 45). Deputy Mabry testified that her pants were not torn and she did not notice

at the time of the altercation that she had a scrape on her knee. It was not until she

got back to office several hours later that she even noticed that she had a scrape. (R.

3, pg. 32).




                                          2
Court of Appeals

      As to his first point of error, the Court of Appeals held that because Harvey had

knocked Deputy Mabry to the ground as he was fleeing from the deputies, that he had

committed assault against a public servant since she suffered a scraped knee.

      As to Harvey’s second point of error, the court of appeals held that the error

was waived by the failure to object un the trial court.

                    GROUND FOR REVIEW (RESTATED)

           Whether the evidence was legally insufficient to prove that
      Harvey caused the injury.

           REASONS FOR REVIEW AS TO GROUND FOR REVIEW

      1.     The Court of Appeals has decided an important question of state
             or federal law that has not been, but should be, settled by the
             Court of Criminal Appeals.

      2.     The Court of Appeals has so far departed from the accepted and
             usual course of judicial proceedings as to call for an exercise of
             the Court of Criminal Appeals' power of supervision.


              ARGUMENTS AND AUTHORITIES IN SUPPORT
                OF PETITIONER’S GROUND FOR REVIEW

      In order to convict Harvey of this offense, the State was required to prove that

Harvey intentionally, knowingly or recklessly caused bodily injury to Deputy Mabry,

who was then acting as a public servant. Tex. Penal Code §22.01. During the course


                                          3
of the trial, the issue which arose was whether Harvey caused the injury.

      The State is required to introduce evidence showing the defendant's guilt. See

TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon Supp. 2013). The evidence is

sufficient under article 1.15 if it embraces every essential element of the offense

charged and establishes the defendant's guilt. See Stone v. State, 919 S.W.2d 424, 427

(Tex. Crim. App. 1996). Breaux v. State, 16 S.W.3d 854, 857 (Tex. App. Houston

14th Dist. 2000, pet ref’d).

      In this case, Deputy Mabry testified that she did not notice the scrape on her

knee until she got back to the office, which by her own admission was several hours

later. Further, Deputy Ewing testified that during that period of time they had looked

for Harvey and the search included looking under the house in the crawl space. There

was no testimony that Deputy Mabry complained of or even noticed the injury or

“pain” at the time of the altercation. In essence, the testimony in this trial amounted

to speculation that Harvey caused the injury.

      There is no greater "manifest injustice" than to send a person to prison whose

guilt has not been established beyond a reasonable doubt. Johnson v. State, 978

S.W.2d 703, 707 (Tex. App. Corpus Christi 1998), aff’d 23 S.W.3d 1 (Tex. Crim.

App. 2000). While this principle appears most often in cases of the now defunct

factual sufficiency review, Harvey contends that it still applies in cases of legal

                                          4
insufficiency. The evidence in this case was insufficient and his conviction should

be reversed.

Conclusion

      Mr. Harvey contends that his conviction should be reversed and a judgment of

acquittal entered.

                                    PRAYER

      WHEREFORE, PREMISES CONSIDERED, Mr. Harvey respectfully

requests that this Honorable Court review the transcript of the proceedings in this

case, and after such review, determine that the Court of Appeals improperly decided

his point of error; reverse the decision of the Court of Appeals, and remand to the

Court of Appeals with instructions that a judgment of acquittal be entered.

                                             Respectfully submitted,

                                              /S/ John Donahue
                                             JOHN DONAHUE
                                             TBA #05968300
                                             204N. 6th St.
                                             Waco, Texas 76701
                                             (254) 752-9090
                                             Fax (254) 753-1232
                                             Texascriminalattorney@yahoo.com




                                         5
                         CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing Corrected
Petition for Discretionary Review was forwarded to the following on October 16,
2015.

                                            /S/ John Donahue
                                           JOHN DONAHUE

Sterling Harmon                            Christopher David Harvey, #02016029
Ass’t District Attorney                    Ellis Unit
McLennan County, Texas                     1697 FM 980
Waco, TX 76701                             Huntsville, TX 77343
(254) 757-5084
(254) 757- 5021
Sterling.Harmon@co.mclennan.tx.us




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CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements

1.   This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i)
     because:

     O     this brief contains 1631 words, including the parts of the brief exempted
           by TEX. R. APP. P. 9.4(i)(1), or,

     G     this brief uses a monospaced typeface and contains _____ lines of text,
           excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).

2.   This brief complies with the typeface requirements and the type style
     requirements of TEX. R. APP. P. 9.4(e) because:

     O     this brief has been produced on a computer in conventional typeface
           using Corel Wordperfect 8.0 in Times New Roman 14 point font in the
           body of the brief and Times New Roman 12 point font in the footnotes.

     G     this brief is a typewritten document printed in standard 10 character per
           inch monospaced typeface.



 /S/ John Donahue
JOHN DONAHUE
Attorney for Appellant
Dated: October 16, 2015




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