                                                                            ACCEPTED
                                                                        12-15-00001-CR
                                                           TWELFTH COURT OF APPEALS
                                                                         TYLER, TEXAS
                                                                   9/4/2015 11:47:15 PM
                                                                              Pam Estes
                                                                                 CLERK

             NUMBER 12-15-00001-CR

  IN THE TWELFTH DISTRICT COURT OF APPEALS     FILED IN
                                        12th COURT OF APPEALS
                TYLER, TEXAS                 TYLER, TEXAS
                                               9/4/2015 11:47:15 PM
                                                      PAM ESTES
                                                        Clerk
                 OSCAR PERKINS,
                    Appellant
                        v.
               THE STATE OF TEXAS,
                     Appellee

From the 114th District Court of Smith County, Texas
         Trial Cause Number 114-1209-14

                 STATE’S BRIEF

        ORAL ARGUMENT NOT REQUESTED

                D. MATT BINGHAM
             Criminal District Attorney
                Smith County, Texas

                  AARON REDIKER
             Assistant District Attorney
        State Bar of Texas Number 24046692
        Smith County Courthouse, 4th Floor
                 Tyler, Texas 75702
               Phone: (903) 590-1720
                Fax: (903) 590-1719
        Email: arediker@smith-county.com
                                                     TABLE OF CONTENTS

Index of Authorities ............................................................................................................ 2
Statement of Facts............................................................................................................... 3
Summary of Argument....................................................................................................... 4
I.ISSUES ONE AND TWO: As the testimony of the victim was legally sufficient to prove
that appellant assaulted his wife by choking her, the trial court properly denied his
motion for an instructed verdict. ..................................................................................... 5
Standard of Review ............................................................................................................. 5
Argument.............................................................................................................................. 6
II.ISSUE THREE: As the offense contained in the requested instruction was not a
lesser-included offense of the charged offense, and appellant did not present
affirmative evidence rebutting or negating an element of the charged offense of
assault—family violence by choking, the trial court properly refused an instruction
on misdemeanor assault. ................................................................................................... 9
Standard of Review ............................................................................................................. 9
Argument............................................................................................................................ 10
Certificate of Compliance ................................................................................................ 14
Certificate of Service ........................................................................................................ 14




                                                                   1
                                              INDEX OF AUTHORITIES


Texas Cases
Aguilar v. State, 468 S.W.2d 75 (Tex. Crim. App. 1971) .................................................... 8
Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994) ................................................... 11
Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997) ....................................................... 9
Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012)................................................ 11
Dewberry v. State, 4 S.W.3d 735 (Tex. Crim. App. 1999) ................................................... 6
Goodman v. State, 66 S.W.3d 283 (Tex. Crim. App. 2001) ................................................. 9
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) ...................................................... 10
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ....................................................... 6
Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) .................................................... 5
Lofton v. State, 45 S.W.3d 649 (Tex. Crim. App. 2001) .................................................... 12
Madden v. State, 799 S.W.2d 683 (Tex. Crim. App. 1990) ................................................. 5
Price v. State, 457 S.W.3d 437 (Tex. Crim. App. 2015) ...................................................... 7
Williams v. State, 692 S.W.2d 671 (Tex. Crim. App. 1984) ................................................ 8
Wortham v. State, 412 S.W.3d 552 (Tex. Crim. App. 2013) ............................................. 10


Texas Statutes
Tex. Code Crim. Proc. Ann. art. 36.14 ............................................................................... 9
Tex. Penal Code Ann. § 22.01 ....................................................................................... 7, 11


Federal Cases
Jackson v. Virginia, 443 U.S. 307 (1979) .............................................................................. 5




                                                            2
                            NUMBER 12-15-00001-CR

                   IN THE TWELFTH DISTRICT COURT OF APPEALS
                                 TYLER, TEXAS

                                OSCAR PERKINS,
                                   Appellant
                                       v.
                              THE STATE OF TEXAS,
                                    Appellee

              From the 114th District Court of Smith County, Texas
                       Trial Cause Number 114-1209-14

                                 STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant

Criminal District Attorney, respectfully requesting that this Court overrule

appellant’s alleged issues and affirm the judgment of the trial court in the above-

captioned cause.


                                STATEMENT OF FACTS

      Appellant has stated the essential nature of the proceedings and the

evidence presented at trial with one important exception (Appellant's Br. 4): Mrs.



                                         3
Perkins, appellant’s wife and the victim of his assault, did not testify “she could

still breathe” while appellant choked her (VII Rep.’s R. at 37-39). In the interest of

judicial economy, any other facts not mentioned therein that may be relevant to

the disposition of appellant's issues will be discussed in the State's arguments in

response.


                               SUMMARY OF ARGUMENT

   The jury, as the sole judge of the weight and credibility of the witnesses, was

free to believe the victim’s testimony that she could not breathe when appellant

placed her in a chokehold. Furthermore, appellant has not pointed to any

affirmative evidence in the record directly germane to the lesser included offense

of misdemeanor assault or that refutes or negates the other evidence establishing

the greater offense.




                                          4
I. ISSUES ONE AND TWO: As the testimony of the victim was legally sufficient to prove
that appellant assaulted his wife by choking her, the trial court properly denied his
motion for an instructed verdict.


                                 STANDARD OF REVIEW

   Articulating the standard of review for legal sufficiency in Jackson v. Virginia, 443

U.S. 307, 319 (1979), the Supreme Court stated that, "the relevant question is

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." “A challenge to the trial judge's ruling on a motion

for an instructed verdict is in actuality a challenge to the sufficiency of the

evidence to support the conviction.” Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim.

App. 1990). When conducting a legal sufficiency review, a reviewing court must

ask whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt, and not whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt. Laster v. State,

275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The same standard applies equally to

circumstantial and direct evidence. Id. When examining the evidence for legal

                                           5
sufficiency, a reviewing court’s role is not to become a “thirteenth juror”, and it

may not “re-evaluate the weight and credibility of the record evidence” and

thereby substitute its judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735,

740 (Tex. Crim. App. 1999). Thus, “[t]he reviewing court must give deference to

the responsibility of the trier of fact to fairly resolve conflicts in testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443

U.S. at 318-19) (internal quotation marks omitted).


                                      ARGUMENT

   In his first and second issues, appellant argues that the evidence showing he

intentionally, knowingly, or recklessly impeded the normal breathing or

circulation of the blood of his wife by applying pressure to her throat or neck was

legally insufficient, and the trial court thus erred by failing to grant his motion for

an instructed verdict (Appellant’s Br. 6-10; Clerk’s R. at 8). A person commits the

offense of assault—family violence by choking if: “(1) the accused intentionally,

knowingly, or recklessly causes bodily injury to another; (2) the victim was a

                                          6
person described in certain sections of the Family Code; and (3) the offense was

committed by intentionally, knowingly, or recklessly impeding the normal

breathing or circulation of the blood of the person by applying pressure to the

person's throat or neck or by blocking the person's nose or mouth.” Price v. State,

457 S.W.3d 437, 442 (Tex. Crim. App. 2015) (internal quotation marks omitted). See

Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(B) (West 2014). Mrs. Perkins, the sole

eyewitness and victim of the charged offense, testified at trial that the assault

occurred following a disagreement with appellant over the phone regarding the

division of an insurance claim settlement check (VII Rep.’s R. at 30). After arriving

at her home, appellant told her that he was going to kill her, struck her several

times with a pillow, punched her in the head twice, and then put Mrs. Perkins in a

chokehold from behind, squeezing her neck between his forearm and bicep while

placing his other forearm on the back of her neck (Id. at 32, 34-39). Mrs. Perkins

then fell on her knees because she could not breathe, and appellant eventually

released her (Id. at 38-39, 59). Sergeant Flores, the Lindale police officer who

arrived on the scene after Mrs. Perkins called 911, observed redness, swelling, and


                                         7
bruising around her neck and an indentation from one of Mrs. Perkins’s earrings

being pushed into the skin (Id. at 156-58, 160). Moreover, Dr. Weber, the emergency

room physician who later treated Mrs. Perkins that day, testified that a CT scan of

her neck showed a straightening of the spine consistent with muscle spasms,

which could have been caused by trauma to the neck through being choked (Id. at

109-11).

   Nevertheless, appellant argues that the only evidence of choking came from

Mrs. Perkins, whose credibility was called into question by, among other things,

her contradictory statements about attempting to file an affidavit of non-

prosecution (Appellant’s Br. 8). However, an eyewitness’s testimony alone may be

sufficient to support a jury’s verdict. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim.

App. 1971). “The trier of fact is the sole judge of the weight and credibility of the

witnesses and may believe or disbelieve all or any part of any witness' testimony.”

Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). “What weight to give

contradictory testimonial evidence is within the sole province of the jury, because

it turns on an evaluation of credibility and demeanor.” Cain v. State, 958 S.W.2d 404,


                                          8
408-409 (Tex. Crim. App. 1997). Considering its verdict of guilty, the jury obviously

believed Mrs. Perkins’s account of the assault and resolved any inconsistencies

against appellant, as it was within the sole province of the jury to do. See id. When

viewed in the light most favorable to the prosecution, Mrs. Perkins’s testimony

that she could not breathe when appellant applied pressure to her neck was legally

sufficient to support the jury’s verdict. See Goodman v. State, 66 S.W.3d 283, 286 (Tex.

Crim. App. 2001) (“Direct evidence of ‘X’ fact is always legally sufficient to support

a finding of ‘X’ fact.”). Appellant’s first and second issues are therefore without

merit and should be overruled.


II. Issue Three: As the offense contained in the requested instruction was not a
lesser included offense of the charged offense, and appellant did not present
affirmative evidence rebutting or negating an element of the charged offense of
assault—family violence by choking, the trial court properly refused an instruction
on misdemeanor assault.

                                  STANDARD OF REVIEW

   “[T]he judge shall, before the argument begins, deliver to the jury, except in

pleas of guilty, where a jury has been waived, a written charge distinctly setting

forth the law applicable to the case . . .” Tex. Code Crim. Proc. Ann. art. 36.14 (West


                                           9
2014). In Hall v. State, the Court of Criminal Appeals “sets forth the two-part

analysis used to determine whether a defendant is entitled to a jury instruction on

a lesser-included offense.” Wortham v. State, 412 S.W.3d 552, 554 (Tex. Crim. App.

2013) (citing Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007)). “Using the

‘cognate pleadings’ approach, an appellate court must first consider whether the

offense contained in the requested instruction is a lesser-included offense of the

charged offense. If it is, the court must then determine whether the evidence

admitted at trial supports the instruction.” Id. (footnote omitted). Under the

second part of the analysis, “anything more than a scintilla of evidence may be

sufficient to entitle a defendant to a lesser charge. In other words, the evidence

must establish the lesser-included offense as a valid, rational alternative to the

charged offense.” Hall, 225 S.W.3d at 536.


                                     ARGUMENT

   In his third issue, appellant argues that the trial court erred in refusing to

instruct the jury on the offense of misdemeanor assault as a lesser-included

offense of assault—family violence by choking (Appellant’s Br. 11-14). See Tex.

                                        10
Penal Code Ann. § 22.01(a)(1), (b)(2)(B) (West 2014). As the Court of Criminal

Appeals explained in Cavazos v. State:

       [A]nything more than a scintilla of evidence may be sufficient to entitle a
       defendant to a charge on a lesser offense. . . . If the evidence raised at trial
       casts doubt on the greater offense, a lesser-included offense instruction
       allows the jury to vote for a rational alternative. While it is true that the
       evidence may be weak or contradicted, the evidence must still be directly
       germane to the lesser-included offense and must rise to a level that a
       rational jury could find that if Appellant is guilty, he is guilty only of the
       lesser-included offense. Meeting this threshold requires more than mere
       speculation—it requires affirmative evidence that both raises the lesser-
       included offense and rebuts or negates an element of the greater offense.

Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012) (citations omitted). “[I]t

is not enough that the jury may disbelieve crucial evidence pertaining to the

greater offense 1 ; there must be some evidence directly germane to a lesser

included offense for the factfinder to consider before an instruction on a lesser

included offense is warranted.” Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App.

1994). “A defendant’s own testimony that he committed no offense, or testimony




1
 At the charge conference, appellant’s trial counsel justified his request for the lesser included
offense instruction by stating, “[t]he jury could very well believe that Mr. Perkins hit her in the
head but did not choke her.” (VIII Rep.’s R. at 137).


                                                11
which otherwise shows that no offense occurred at all, is not adequate to raise the

issue of a lesser-included offense.” Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim.

App. 2001). Under the first part of the Hall analysis, misdemeanor assault causing

bodily injury by striking with a closed fist is not a lesser included offense of

assault—family violence by choking as charged in the indictment because the

required injury is “normal breathing or circulation of the blood has been impeded.”

Price, 457 S.W.3d at 443. Secondly, appellant challenges the trial court’s denial of

the instruction under the second part of the Hall analysis, arguing that: “Dr. Weber

testified that while [Mrs. Perkins’s] complaints could have been caused by choking,

they also could have been caused in other ways.” (Appellant’s Br. 13). Other than

this mere speculation, however, appellant has not pointed to any evidence in the

record rising to the level of convincing a rational jury that, if he is guilty, he is

guilty only of misdemeanor assault (Appellant’s Br. 11-13). See Cavazos, 382 S.W.3d

at 385; Hooper, 214 S.W.3d at 16 (“Speculation is mere theorizing or guessing about

the possible meaning of facts and evidence presented.”). As appellant has not

shown any affirmative evidence directly germane to the lesser included offense of


                                         12
misdemeanor assault or that refutes or negates the other evidence establishing the

greater offense, his third issue is without merit and should be overruled.

                                      PRAYER

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the Court

overrule appellant’s alleged issues and affirm the judgment of the 114th District

Court of Smith County, Texas, in the above-captioned cause.

                                             Respectfully submitted,

                                             D. MATT BINGHAM
                                             Criminal District Attorney
                                             Smith County, Texas

                                             /s/ Aaron Rediker
                                             Aaron Rediker
                                             Assistant District Attorney
                                             SBOT #: 24046692
                                             100 North Broadway, 4th Floor
                                             Tyler, Texas 75702
                                             Office: (903) 590-1720
                                             Fax: (903) 590-1719 (fax)
                                             arediker@smith-county.com




                                        13
                            CERTIFICATE OF COMPLIANCE

   Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

attorney certifies that the word count for this document is 1,959 words as

calculated by Microsoft Word 2013.

                                            /s/ Aaron Rediker
                                            Aaron Rediker


                              CERTIFICATE OF SERVICE

   The undersigned hereby certifies that on this 4th day of September 2015, the

State’s Brief in the above-numbered cause has been electronically filed, and a

legible copy of the State's Brief has been sent by email to James W. Huggler Jr.,

attorney for appellant, at JHugglerLaw@sbcglobal.net.




                                            /s/ Aaron Rediker
                                            Aaron Rediker




                                       14
