                                                                                        ACCEPTED
                                                                                   06-14-00093-CR
                                                                         SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                             12/22/2014 9:33:17 PM
                                                                                   DEBBIE AUTREY
                                                                                            CLERK

                           NO. 06-14-00093-CR

___________________________________________________________
                                                  FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
             IN THE COURT OF APPEALS SIXTH          DISTRICT
                                                        12/30/2014 1:52:00 PM
                                                             DEBBIE AUTREY
                    AT TEXARKANA, TEXAS                          Clerk
____________________________________________________________

                SAMUEL DELEON GARZA, APPELLANT

                                    V.

                   THE STATE OF TEXAS, APPELLEE

____________________________________________________________

                  APPEAL IN CAUSE NUMBER 29,017

               IN THE 196TH JUDICIAL DISTRICT COURT

                       OF HUNT COUNTY, TEXAS

____________________________________________________________

                    BRIEF FOR APPELLANT
____________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

     Comes now the Appellant and submits this brief pursuant to the

provisions of the Texas Rules of Appellate Procedure in support of his

request for the judgment of convictions to be overturned.

     Appellant Requests Oral Argument
                 IDENTITY OF PARTIES AND COUNSEL

Appellant’s Attorney:
Jason A. Duff
2615 Lee Street
P.O. Box 11
Greenville, Texas 75403-0011

Appellant’s Trial Attorney:
Chris Castanon
P.O. Box 851266
Mesquite, Texas 75149

Appellee:
The State of Texas by and through
Noble Walker
Hunt County District Attorney
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401

Appellee’s Trial Counsel:
G. Calvin Grogen, V
Hunt County District Attorney’s Office
4th Floor Hunt County Courthouse
2500 Lee Street
Greenville, Texas 75401




                                                   2
                                    TABLE OF CONTENTS



Identity of the Parties and Counsel ............................................................. 2

Table of Contents ....................................................................................... 3

Index of Authorities ..................................................................................... 4

Statement of the Case ................................................................................ 7

Issues Presented ........................................................................................ 8

Statement of the Facts ................................................................................ 9

Summary of the Argument ........................................................................ 13

Argument and Authorities ......................................................................... 14

        Issue Number One ......................................................................... 14
        The evidence is legally insufficient to prove beyond reasonable
        doubt, that Appellant committed Retaliation as indicted.



Prayer for relief ........................................................................................ 29

Certificate of compliance of typeface and Word Count ............................. 30

Certificate of Service ................................................................................. 31




                                                                                                           3
                                     INDEX OF AUTHORITIES

FEDERAL CASES:

Jackson v. Virginia, 443 U.S. 307. ............................................................ 12

STATE CASES:

Ates v. State, 644 S.W.2d 843 (Tex.App.1982)......................................... 14

Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) ...................... 15

Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001) .................. 15

Gross v. State, 380 S.W.3d 181 (Tex.Crim.App.2012).. ............................ 17

Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App.2007) .......................... 17

Laster v. State, 275 S.W. 3d 512 (Tex. Crim. App. 2009) ......................... 12

Johnson v. State 673 SW. 2d 190 (Tex. Crim. App. 1984) ........................ 14

Louis v. State, 159S.W.3d 236(Tex. App.—Beaumont 2005, pet.ref'd) ..... 13

Navarro v.State, 810 S.W.2d 432                           (Tex. App.—San Antonio 1991, pet.

refd) .......................................................................................................... 13

Reedy v. State, 214 S.W. 3d 567 (Tex. App.—Austin 2006) ..................... 13

Shelton v. State, 795 S.W.2d 162, 167 (Tex.Crim.App.1989). .................. 13

Urbano v. State, 837 S.W.2d 114, 116 (Tex.Crim.App. 1992). .................. 13

Washington v. State 127 S.W. 3d 197 (Tex. App. Houston [1st Dist.] 2003,

pet. dism’d). .............................................................................................. 13




                                                                                                                 4
STATE STATUTES:

Tex. Penal Code Ann. § 6.03(a)&(b) (Casemaker 2014) ........................... 13

Tex. Penal Code Ann. § 36.06(a)(1)(A)&(B) (Casemaker 2014) ............... 13




                                                                                5
                         STATEMENT OF THE CASE



        This is an appeal of the judgment and sentence in a criminal case for

the 196th Judicial District, in Hunt County, Texas. Appellant was convicted

of, Obstruction or Retaliation in 29,017.

        Appellant was assessed a sentence of 80 years in 29,017 by the

Jury.




                                                                              6
                         ISSUE PRESENTED


Issue One:     The evidence is legally insufficient to prove beyond
     reasonable doubt, that Appellant committed Retaliation.




                                                                      7
                      STATEMENT OF THE FACTS



     On May 31, 2013 the grand jury returned an indictment for appellant

for relation alleged to have occurred on February 8, 2014. The Indictment

read as follows:

“THE GRAND JURORS, FOR THE COUNTY OF HUNT, STATE OF
TEXAS, DULY SELECTED, IMPANELED, SWORN, ORGANIZED, AND
CHARGED TO INQUIRE OF OFFENSESCOMMITTED IN SAID COUNTY
AND STATE, UPON THEIR OATHS PRESENT IN AND TO SAID COURT
THAT ON OR ABOUT THE 8'" DAY OF FEBRUARY , 2013, A. D., IN THE
COUNTYAND STATE: AFORESAID, AND BEFORE THE PRESENTMEI
IT OF THIS INDICTMENT;

SAMUEL DELEON GARZA

did then and there intentionally or knowingly harm or threaten to harm
MARIA ULLOA, hereinafter called Complainant, by an unlawful act,
namely:

    (1) On February 4, 2013, Defendant harmed Complainant by kicking
Complainant's leg or by pushing Complainant to or against the floor;

      (2) On February 4, 2013, Defendant harmed Complainant by pushing
Complainant to or against the floor or by striking Complainant's chest or
body;

    (3) On February 5, 2013, Defendant: harmed Complainant by striking
Complainant's head or face or by pulling Complainant's hair or by pushing
Complainant to or against the floor; OR

    (4) On February 8, 2013, Defendant harmed or threatened to harm
Complainant by breaking her vehicle's window and texting "Eye for an eye!



                                                                            8
Bitch";

and said unlawful act was in retaliation for or on account of the service or
status of Complainant as a witness or a prospective witness or an
informant or a person who had reported the occurrence of a crime,
namely:

And it is further presented in and to said Court that, prior to the commission
of the aforesaid offense, on the 19th day of FEBRUARY, 2009 A.D.,
in cause number 24508 in the 354'" JUDICIAL DISTRICT COURT of HUNT
County, Texas, the Defendant was convicted of POSSESSION OF A
CONTROLLED SUBSTANCE, NAMELY METHAMPHETAMINE, IN AN
AMOUNT OF 4 GRAMS OR ORE BUT LESS THAN 200 GRAMS and said
conviction is a final conviction;

And it is further presented in and to said Court that, prior to the
commission of the aforesaid offenses, on the 28th day of FEBRUARY,
2011 A.D., in cause number 26935 in the 354th JUDICIAL DISTRICT
COURT of HUNT County, Texas, the Defendant was convicted of
POSSESSION OF A CONTROLLED SUBSTANCE PG 1 >=1G<4G and
said conviction is a final conviction;

      AGAINST THE PEACE AND DIGNITY OF THE STATE.”

(CR Vol. p.10-11)(emphasis added)

      At trial, the alleged victim Maria Ulloa stated that she first met

appellant in December of 2012. (RR Vol. 4 p. 94). Ulloa, testified that

Appellant assaulted her on February 2nd and 4th of 2013. (RR Vol. 4 p.

102), (RR Vol. 4 p. 108- 114). Ulloa then testified that Appellant

burglarized her home in the early morning of February 5, 2014 (RR Vol.

130). After those instances Ulloa directed Appellant to g to her truck and

retrieve any of his property including his speakers. (RR Vol. 4 p. 137). Not



                                                                               9
long after telling Appellant to retrieve his things Ulloa received a text

message from someone she had in her phone as “Kelcie.” (RR Vol. 10

State’s Exhibit 66). Victim did not see Appellant again until April 7, 2013.

(RR Vol. 4 p. 143).




                                                                               10
                      SUMMARY OF THE ARGUMENT

Issue One:     The evidence is legally insufficient to prove beyond
reasonable doubt, that Appellant committed Retaliation.

      The evidence presented at trial could not have led a rational jury to

find that Appellant’s unlawful acts were in retaliation in retaliation for or on

account of the service or status of Ulloa as a witness or a prospective

witness or an informant or a person who had reported the occurrence of

crimes in that were finalized in 2009 and 2011. Concluding so, based on

the evidence presented at trial, would have been speculation or suspicion

by the factfinder. Thus, the evidence is legally insufficient to convict

Appellant in this case.




                                                                                   11
                                 ARGUMENT


       Issue One: The evidence is legally insufficient to support

                         the conviction of Appellant

      In a criminal case, an appellant may raise legal sufficiency for the first

time on appeal. Washington v. State 127 S.W. 3d 197 (Tex. App. Houston

[1st Dist.] 2003, pet. dism’d). When reviewing legal sufficiency of the

evidence, a court must look at all of the evidence in the light most favorable

to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense were proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319; Vodochodsky v.

State, 158 S.W. 3d 502, (Tex. Crim. App. 2005). While giving the proper

deference to the factfinder’s role this court must safeguard against the rare

occurrence when a factfinder does not act rationally. Laster v. State, 275

S.W. 3d 512 (Tex. Crim. App. 2009).

      In this case Appellant was charged with Retaliation. (CR Vol. 1 p.

10). Under the Texas Penal Code, " [a] person commits an offense if he ...

intentionally or knowingly harms or threatens to harm another by an

unlawful act, in retaliation for or on account of the service or status of

another as a witness, prospective witness, informant, a person who has




                                                                              12
reported, or who the actor knows intends to report the occurrence of a

crime. Tex. Penal Code Ann. § 36.06(a)(1)(A)&(B) (Casemaker 2014).

      The state must prove that Defendant acted with a conscious objective

or desire to cause the result, or that he was aware that his conduct was

reasonably certain to cause the result. Tex. Penal Code Ann. § 6.03(a)&(b)

(Casemaker 2014).

      Proof that amounts to only a strong suspicion of guilt or a mere

probability of guilt is insufficient to sustain a conviction. Urbano v. State,

837 S.W.2d 114, 116 (Tex.Crim.App. 1992); Navarro v.State, 810 S.W.2d

432, 435 (Tex. App.—San Antonio 1991, pet. refd).

      If circumstantial evidence provides no more than a suspicion, the jury

is not permitted to reach a speculative conclusion. Louis v. State,

159S.W.3d 236, 246 (Tex. App.—Beaumont 2005, pet.ref'd). It is the

function of appellate courts to ensure that no one is convicted of a crime

except upon proof beyond a reasonable doubt. Shelton v. State, 795

S.W.2d 162, 167 (Tex.Crim.App.1989). Due process requires no less.

Reedy v. State, 214 S.W. 3d 567 (Tex. App.—Austin 2006).

      In this case the State did not prove beyond a reasonable doubt that

Defendant acted with a conscious objective or desire to cause the result, or

that he was aware that his conduct was reasonably certain to be in



                                                                                 13
retaliation of anything as alleged in the indictment or otherwise. There is

no evidence that the actions of Defendant were made in retaliation for the

service or status of Ulloa as a witness or prospective witness or an

informant or a person how had reported the occurrence of a crime.

      "It is a well-recognized principle of law in this State that, to sustain a

conviction, it should appear not only that an offense as charged has been

committed but there should also be proof to a degree of certainty greater

than a mere probability of strong suspicion tending to establish that the

party charged was the person who committed or was a participant in its

commission. There must be legal and competent evidence pertinently

identifying the defendant with the transaction constituting the offense

charged against him." Ates v. State, 644 S.W.2d 843 (Tex.App.1982);

Johnson v. State 673 SW. 2d 190 Tex. Crim. App. 1984).

      In this case the State alleged that Appellant retaliated on the victim in

the form of his acts committed on February 4, 5, and 8, 2013. State

alleged further that the retaliating acts were the result of that the and said

unlawful act was in retaliation for or on account of the service or status of

Ulloa as a witness or a prospective witness or an informant or a person

who had reported the occurrence of crimes that occurred prior to February

2009 and February 2011. (CR Vol. 1 p. 10). Yet by the victim’s own



                                                                                   14
testimony, she did not even meet Appellant until December of 2012. (RR

Vol. 4 p. 94).

      The evidence presented at trial clearly does not prove beyond a

reasonable doubt that Appellant committed Retaliation as alleged. Even

the court’s charge fails to otherwise clarify if the State alleged some other

offence. (CR Vol. 1 p.76).

      The hypothetically correct jury charge cannot completely rewrite the

indictment, but such a charge need not “track exactly all of the allegations

in the indictment.” Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App.

2001). The “‘law’ as ‘authorized by the indictment’ must be the statutory

elements” of the offense charged “as modified by the charging instrument.”

Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000), overruled in

part on other grounds by Gollihar, 46 S.W.3d 243. Thus, if the essential

elements of the offense are modified by the indictment, the modification

must be included. Gollihar, 46 S.W.3d at 254. However, the hypothetically

correct charge “need not incorporate allegations that give rise to immaterial

variances.” Id. at 256.

      Here, any variance is in the allegations made between the indictment

and the charge are material. The State alleged that the offensive conduct

was in retaliation the victim’s status relating to crimes that occurred before



                                                                                15
the victim even knew appellant. Even if, in the unlikely instance that victim

was the individual reporting the 2009, and 2011 crimes, there is no

evidence that she had a status as a witness, or reporter in connection to

those crimes. Moreover, there is no evidence that Appellant made any act

in retaliation to her connection the 2009 and 2011 crimes.

      Even if this Court rejects the above argument that there is no

evidence Appellant committed the crime specifically alleged in the

indictment, the evidence is insufficient to prove that Appellant was the

individual who destroyed the victims truck window or sent her any text

message. Once more the evidence is in sufficient that Appellant acted with

the conscious object to retaliate on the victim for her reporting of any crime.

      Furthermore if the factfinder accepts the contention that the victims

truck window was smashed after a confrontation with the Appellant and that

victim received a text message from someone stating “eye for an eye,” the

evidence is still insufficient that Appellant is actually the individual to

commit those acts on February 8, 2013. (RR Vol. 10 State’s Exhibit 66).

      The State failed present evidence that Defendant’s actions amounted

to a conscious objective or desire for the broken window and text message

to be in retaliation of a prior crime. Moreover there is simply insufficient




                                                                               16
evidence that Appellant’s mental state was related the specific occurrences

testified to by the victim.

      Juries are permitted to draw reasonable inferences from the

evidence, but they are not permitted to draw conclusions based on

speculation. Gross v. State, 380 S.W.3d 181 (Tex.Crim.App.2012); Hooper

v. State, 214 S.W.3d 9, 15 (Tex.Crim.App.2007). Speculation is the mere

theorizing or guessing about the possible meaning of the facts and

evidence presented Id. at 16.

      Other witnesses, do not add evidence that Appellant was a guilty

beyond a reasonable doubt. It would only be theorizing or guessing about

the possible meaning of the facts and evidence presented to conclude that

Appellant acted in retaliation on February 8, 2013.

      In this case, there was no testimony or evidence brought at trial that a

rational jury could have found beyond a reasonable doubt that Appellant

committed Retaliation or was responsible under Texas Penal Code.

      Concluding so, based on the evidence presented at trial, would have

been speculation or suspicion by the factfinder. Thus, the evidence is

legally insufficient to convict Appellant of Retaliation in this case.




                                                                            17
                           PRAYER FOR RELIEF

      Wherefore, premises considered, Appellant respectfully prays that his

conviction in the above entitled and numbered cause be reversed and

acquit him. Appellant further prays for all other lawful relief to which he

may be entitled, at law or in equity.

                                                 Respectfully submitted,




                                                 _____/s/ Jason A. Duff____
                                                 Jason A. Duff
                                                 State Bar No. 24059696
                                                 2615 Lee Street
                                                 P.O. Box 11
                                                 Greenville, TX 75403-0011
                                                 Attorney for the Appellant




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 CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

      In accordance with Texas Rules of Appellate Procedure 9.4 (e) and

(i), the undersigned attorney or record certifies that Appellants Brief

contains 14-point typeface of the body of the brief, 12-point typeface for

footnotes in the brief and contains 1,945 words, excluding those words

identified as not being counted in appellate rule of procedure 9.4(i)(1), and

was prepared on Microsoft Word 2010.



_____/s/ Jason A. Duff____
Jason A. Duff
Attorney for the Appellant




                                                                             19
                      CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the above and

foregoing instrument was forwarded to Hunt County District Attorney Noble

Walker, P.O. Box, 1097, Greenville, Texas 75403, and the Court of

Appeals on this the 22nd day of December 2014, by Electronic Filing

Service.




                                              _____/s/ Jason A. Duff____
                                                             Jason A. Duff
                                                 Attorney for the Appellant




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