                                                                           ACCEPTED
                                                                       01-14-00744-CR
                                                            FIRST COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                  6/19/2015 4:52:14 PM
                                                                 CHRISTOPHER PRINE
                                                                                CLERK

 Nos. 01-14-00744-CR and 01-14-00745-CR

                    In the                            FILED IN
Court of Appeals for the First District of Texas1st COURT OF APPEALS
                                                    HOUSTON, TEXAS
                 At Houston
                                              6/19/2015 4:52:14 PM
                                              CHRISTOPHER A. PRINE
                                                      Clerk
      Cause Nos. 1326112 and 1383738
         In the 248th District Court
          Of Harris County, Texas


      ARTAVIOUS DEON HOLLINS
             Appellant

                      v.

          THE STATE OF TEXAS
                Appellee


 APPELLANT’S SUPPLEMENTAL BRIEF



                             Casey Garrett
                             4010 Bluebonnet, Suite 204
                             Houston, Texas 77025
                             (713) 228-3800
                             Texas Bar No. 00787197




     ORAL ARGUMENT REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL

Appellant: Artavious Deon Hollins

Counsel for Appellant at Trial:
             Mr. T. B. Todd Dupont, II
             Texas State Bar No. 24004289
             3700 North Main Street
             Houston, Texas 77009
             713-682-1800
             Mr. Mike Driver
             Texas Bar No. 24069634
             402 Main, 4th Floor
             Houston, Texas 77002
             713-417-4809

Counsel for Appellant on Appeal:
             Casey Garrett
             4010 Bluebonnet, Suite 204
             Houston, Texas 77025
             Texas Bar No. 00787197
             713-228-3800

Counsel for the State at Trial:
              John Wakefield
              Assistant District Attorney
              Texas Bar No. 24054125
              1201 Franklin Street, Suite 600
              Houston, Texas 77002
              713-755-6881

Counsel for the State on Appeal:
              Harris County District Attorney’s Office
              Appellate Division
              1201 Franklin, Suite 600
              Houston, Texas 77002
              (713) 755-5800

Trial Judge: The Honorable Katherine Cabaniss




                                        2
                                          TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. 2

TABLE OF CONTENTS ................................................................................................ 3

INDEX OF AUTHORITIES........................................................................................... 4

STATEMENT OF THE CASE....................................................................................... 5

SUPPLEMENTAL ISSUE PRESENTED...................................................................... 6


       The evidence presented at trial was legally insufficient to support a
       conviction for tampering with the evidence.


SUMMARY OF THE ARGUMENT ............................................................................. 7

STATEMENT OF FACTS ............................................................................................. 7

APPELLANT’S FIRST SUPPLEMENTAL POINT OF ERROR ................................. 9

PRAYER ....................................................................................................................... 13

CERTIFICATE OF SERVICE ..................................................................................... 14




                                                             3
                                         INDEX OF AUTHORITIES

Cases

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).............................10

Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560
(1979)......................................................................................................................10

Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) ............................... 10


Statutes

Tex. Penal Code Ann. sec. 37.09(a). (West 2014).............................................................10




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                           STATEMENT OF THE CASE

       Mr. Artavious Hollins was charged by indictment with the felony offense of

murder (R.R.3 – 14). He was also indicted with the felony offense of tampering

with evidence (R.R.3 – 14). Mr. Hollins pled not guilty to both of the charges and

the cases were tried together before a jury (R.R.3 – 14). The jury found Mr.

Hollins guilty of murder and guilty of tampering with evidence (C.R. 308). The

jury assessed punishment at confinement for life in the Texas Department of

Criminal Justice, Institutional Division, in the murder case. The jury assessed

punishment at confinement for twenty-five years in the Texas Department of

Criminal Justice, Institutional Division, in the tampering case. Mr. Hollins filed

timely notice of appeal.




                                        5
             SUPPLEMENTAL ISSUE PRESENTED


The evidence presented at trial was legally insufficient to support a
conviction for tampering with the evidence.




                                 6
                      SUMMARY OF THE ARGUMENT

      The State presented insufficient evidence that Mr. Hollins tampered with

any evidence or disposed of any weapons.



                           STATEMENT OF FACTS

      Mr. Hollins and his girlfriend moved into an apartment complex on West

34th Street known as Casa Nube, and within a matter of days, one of the women

living in the complex started arguing with him (R.R.4 – 196-204). At first, the

woman and Mr. Hollins merely exchanged some words back and forth, and Mr.

Hollins tried to avoid any further escalation by going into his apartment and

closing the door (R.R.3 – 140-143, 4 – 22-25, 204-215). At some point during this

confrontation between Shae and Mr. Hollins, other residents got involved,

including Tranea Jones and Andre Lewis. Andre Lewis appeared on the scene with

a gun in his pocket, which he displayed to Mr. Hollins in a manner that was not

immediately threatening but let Mr. Hollins know he was armed (R.R.4 – 27-30).

      The woman who began the argument, however, known to her friends as

Shae, was not satisfied. She called a man she knew to come to Casa Nube and

confront Mr. Hollins. She referred to this man as “D.” Shae and D yelled at Mr.

Hollins through the door of his apartment (R.R.3 – 140-144, R.R.4 – 33-45). They

threw rocks, boards, and perhaps something like a log at the doors and windows of



                                       7
Mr. Hollins’ apartment. They were yelling and kicking his front door. Both Shae

and D hoped to get Mr. Hollins outside so D could fight Mr. Hollins. Mr. Hollins

stayed in his apartment and avoided any further conflict or interaction with D or

Shae (R.R.3 – 140-150, R.R.4 – 33-45).

      Approximately a week later, Shae started harassing Mr. Hollins again. She

was bringing up the fight from the week before with other residents in the

apartment complex (R.R.3 – 152-155). Shae spoke to Derrick Williams about what

had happened between her and Mr. Hollins, but did not explain that she and D had

already “taken care of it” by destroying Mr. Hollins’ property and throwing bricks,

boards, rocks and logs into his apartment. (R.R.3 – 155).

      Derrick Williams became incensed by what Shae told him about Mr.

Hollins and started across a small courtyard toward Mr. Hollins’ apartment to fight

him or confront him in some manner. Tranea Jones was watching the courtyard

from her upstairs balcony and informed her roommate and partner, Andre Lewis,

that Derrick Williams and Mr. Hollins were about to fight (R.R.3 – 155-160).

Andre Lewis put on his shoes and ran downstairs. Derrick Williams and Andre

Lewis were making comments and being aggressive toward Mr. Hollins, and at

one point Derrick Williams told Mr. Hollins he was going to “whoop his behind.”

(R.R.3 – 152, 155-161). Mr. Hollins testified at trial that Derrick Williams and

Andre Lewis told him he had to leave the apartment complex that night, and that

both he and his wife were afraid to leave their belongings unattended because of

the aggression toward him by the other residents.


                                         8
       Derrick Williams and Andre Lewis advanced toward Mr. Hollins’

apartments. The witnesses told conflicting stories about how, exactly, it happened.

Mr. Hollins testified he was in the bathroom when Derrick Williams and Andre

Lewis came into his apartment unannounced and without warning. Tranea Jones

testified that Mr. Hollins “invited” them into his apartment, but she clarified that

he said it in a defensive way, telling them to “come on, then, come on in,” and his

tone was intended to say, “if you come in, basically I’m going to use that as self-

defense,” (R.R.3 – 159), indicating that Mr. Hollins felt threatened and was trying

to retreat into his own home. Regardless of how it happened, all the witnesses

agree that Derrick Williams went into Mr. Hollins’ apartment. Andre Lewis

alternately claimed that he wasn’t in the apartment or that he was; and he testified

at trial that he saw Mr. Hollins pull a gun out of his back waistband. Mr. Hollins

testified that Derrick Williams was carrying the gun. All the witnesses agreed that

Mr. Hollins and Derrick Williams tussled over a gun and the gun “went off” and

no one thought Mr. Hollins intended to shoot Derrick Williams.



         APPELLANT’S FIRST SUPPLEMENTAL POINT OF ERROR

       The evidence presented at trial was legally insufficient to support a
       conviction for tampering with the evidence.

       In determining whether evidence is sufficient, a reviewing court views all

the evidence in the light most favorable to the prosecution to determine whether

any rational trier of fact could have found the essential elements of the offense



                                         9
beyond a reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012), citing Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788-89, 61

L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App.

2010). When the record supports conflicting inferences, a reviewing court must

presume that the fact finder resolved the conflicts in favor of the prosecution and

defer to that determination. Wise v. State, 364 S.W.3d at 903 (quoting Jackson,

443 U.S. at 326, 99 S.Ct. at 2788-89). The fact finder determines the weight and

credibility of the evidence. Id.

       Ordinarily, to sustain a conviction for murder the evidence must

demonstrate that the person (1) knowing that an investigation or official

proceeding is pending or in progress (2) alters, destroys or conceals any thing with

intent to impair its availability as evidence. Tex. Penal Code Ann. sec. 37.09(a).

(West 2014). A person acts “intentionally” or with intent with respect to the nature

of his conduct or to a result of his conduct when it is “his conscious objective or

desire to engage in the conduct or cause the result.” Tex. Penal Code Ann. sec.

6.03(a); Wise, 364 S.W.3d at 903. A person acts knowingly or with knowledge of

the nature of his conduct or circumstances “when he is aware of the nature of his

conduct or that the circumstances exist.” Tex. Penal Code Ann. sec. 6.03(b).

       Officer Christopher Castellani testified he was in pursuit of a man wearing

a white shirt and a black hat (R.R.3 – 48). He said another officer found a white

shirt and a black hat in a different location (R.R.3 – 48). He said later that day a

dog found a firearm in the bushes not far from where the shirt and hat were found


                                        10
(R.R.3 – 54). The dog found a pink Palmer frame pistol with a black slide (R.R.3 –

71). The distance between the pistol and the clothing was a matter of seconds on

foot (R.R.3 – 71). A tank top style t-shirt was found at the scene (R.R.3 – 94). All

the items were in the vicinity and very close to the apartment complex where the

shooting took place (R.R.3 – 101).

       On the day of the shooting, all the witnesses’ agree that Mr. Hollins did not

start or cause any arguments and that Shae, Williams and Lewis were being

aggressive toward Mr. Hollins. Mr. Lewis testified that every time Mr. Hollins

would begin to come out toward the courtyard and the other residents began

escalating the fight or walking toward him, he would immediately retreat back into

his home. Tranea Jones testified that Derrick Williams threatened to “whoop his

behind,” and Mr. Hollins continued to retreat until eventually he began saying

things like, “well, come on, come on then,” and eventually said, “come into my

house.” Tranea Jones referred to this statement as an “invitation,” but her

testimony made clear that she understood it to be in the nature of a dare, more of a

way to call the bluff of Derrick Williams and Andre Lewis by daring them to

follow Mr. Hollins into his own home. In fact, Tranea got Andre Lewis involved

because she could tell that Derrick Williams was pursuing the conflict and heading

toward Mr. Hollins’ apartment.

       All the witnesses testified that there was a struggle for a gun inside Mr.

Hollins’ apartment. Tranea Jones testified, “I was already around there because

when Artavious realized that he had shot Derrick – because I don’t think


                                        11
Artavious knew he shot Derrick until he seen Derrick when Derrick said, “it didn’t

have to go like this.” (R.R.3 – 167). Mr. Hollins also testified he didn’t know if

anyone was hurt when he ran away from the scene. He knew the gun had gone off,

and he knew Derrick Williams had fallen somewhere outside of his apartment, but

he was not aware that Derrick Williams had been shot.

       Despite the inconsistencies in testimony, the witnesses at trial made several

things clear: 1) Mr. Hollins was not the aggressor in any of the incidents at Casa

Nube Apartments; 2) Mr. Hollins repeatedly declined to fight with the neighbors

who were trying to instigate a conflict and instead retreated into his home; 3)

Derrick Williams and Andre Lewis went into his home in the midst of a yelling

match when at least one other resident believed a fight was about to start; and 4)

Mr. Hollins did not intend to shoot or even know he’d shot Derrick Williams after

the tussle in his apartment.

       The investigating officers found all of the evidence in locations very close

to where Mr. Hollins had been confronted by a group of angry neighbors. The

evidence merely showed that he discarded the evidence as he fled the scene, not

that he concealed or altered or otherwise attempted to prevent the investigation

from proceeding. To the contrary, investigators found a tank top next to the body

of Derrick Williams. The pistol in this case was found steps from where Mr.

Hollins’ other clothing was found. The State was unable to demonstrate that Mr.

Hollins concealed any evidence and unable to demonstrate that he intended to

conceal any evidence. The evidence at trial was legally insufficient to support a


                                        12
conviction for tampering and the case should be reversed and Mr. Hollins should

be acquitted.



                                    PRAYER

       Appellant respectfully prays this Honorable Court to reverse the conviction

and acquit Mr. Hollins.



                                               Respectfully submitted,



                                                     /s/ Casey Garrett
                                               Casey Garrett
                                               4010 Bluebonnet, Suite 204
                                               Houston, Texas 77025
                                               (713) 228-3800
                                               Texas Bar No. 00787197




                                       13
                            CERTIFICATE OF SERVICE

       This is to certify that a copy of the foregoing instrument has been provided

to the District Attorney’s Office electronically.




                                                          /s/ Casey Garrett
                                                    Casey Garrett
                                                    4010 Bluebonnet, Suite 204
                                                    Houston, Texas 77025
                                                    (713) 228-3800
                                                    Texas Bar No. 00787197




                                          14
