                                                                                        ACCEPTED
                                                                                   06-14-00090-CR
                                                                         SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                            12/23/2014 12:40:42 AM
                                                                                   DEBBIE AUTREY
                                                                                            CLERK

                           NO. 06-14-00090-CR

___________________________________________________________
                                                  FILED IN
                                                        6th COURT OF APPEALS
                                                          TEXARKANA, TEXAS
             IN THE COURT OF APPEALS SIXTH          DISTRICT
                                                        12/30/2014 1:55:00 PM
                                                             DEBBIE AUTREY
                    AT TEXARKANA, TEXAS                          Clerk
____________________________________________________________

                SAMUEL DELEON GARZA, APPELLANT

                                    V.

                   THE STATE OF TEXAS, APPELLEE

____________________________________________________________

                  APPEAL IN CAUSE NUMBER 28,998

               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 ................................................................................ 6

Issues Presented ........................................................................................ 7

Statement of the Facts ................................................................................ 8

Summary of the Argument .......................................................................... 9

Argument and Authorities ......................................................................... 10

        Issue Number One ......................................................................... 10
        The evidence is legally insufficient to prove beyond reasonable
        doubt, that Appellant committed Burglary of a Habitation.


Prayer for relief ........................................................................................ 16

Certificate of compliance of typeface and Word Count ............................. 17

Certificate of Service ................................................................................. 18




                                                                                                           3
                                     INDEX OF AUTHORITIES

FEDERAL CASES:

Jackson v. Virginia, 443 U.S. 307. ............................................................ 10

STATE CASES:

Ates v. State, 644 S.W.2d 843 (Tex.App.1982)......................................... 10

Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000) ...................... 12

Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001) .................. 12

Gross v. State, 380 S.W.3d 181 (Tex.Crim.App.2012).. ............................ 14

Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App.2007) .......................... 14

Laster v. State, 275 S.W. 3d 512 (Tex. Crim. App. 2009) ......................... 10

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). .............................................................................................. 10




                                                                                                                 4
STATE STATUTES:

Tex. Penal Code Ann. § 1.07(a)(8) (Casemaker 2014) ............................. 11

Tex. Penal Code Ann. § 6.03(a)&(b) (Casemaker 2014) ........................... 11

Tex. Penal Code Ann. § 22.01(a)(1) (Casemaker 2014) ........................... 11

Tex. Penal Code Ann. § 30.01(a)(3) (Casemaker 2014) ........................... 10

Tex. Penal Code Ann. § 30.01(c)(2) (Casemaker 2014) ........................... 11




                                                                                 5
                       STATEMENT OF THE CASE



     This is an appeal of the judgments and sentences in a criminal case

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

convicted of Burglary of a Habitation 28,998. Appellant was assessed a

sentence of 73 years 28,998




                                                                           6
                        ISSUES PRESENTED


Issue One:      The evidence is legally insufficient to prove beyond
     reasonable doubt, that Appellant and the Victim have a dating
     relationship.




                                                                       7
                       STATEMENT OF THE FACTS


      The victim Maria Ulloa testified at trial that Appellant assaulted her on

February 2, 2013. In that episode Ulloa stated that Appellant by striking

her in the mouth and it caused her pain. (RR Vol. 4 p. 102-4) Ulloa then

stated that two days later, on February 4, 2014 Appellant assaulted her

again on two separate occasions. (RR Vol. 4 p 108). In the first instance

of February 4, 2013, Ulna stated that the Appellant kicked her in the leg

which caused pain and bruising. (RR Vol. 4 p.108-114). Then in the

second episode of February 4, 2013, Appellant, according to Ulloa, arrived

on her door step to apologize. (RR Vol. 4 p. 124). But when Ulloa refused

to speak to Appellant, he apparently pushed her, yanked her hair, and

stuck her till she was laying on the ground in pain. (RR Vol. 4. p. 123-128).

Ulloa called 911 and made a police report. (RR Vol. 4 p. 128). Ulloa

testified that After the police left and on the early morning of February 5,

2014 she barricade her bedroom door with a chair. (RR Vol. 4 p. 130).

Ulloa further stated that Appellant broke through her barricade and hit her

with his fists. (RR Vol. 4 p. 130).




                                                                               8
                      SUMMARY OF THE ARGUMENT

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

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

find that Appellant committed assault in the course of an unlawful entry.

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.




                                                                              9
                                ARGUMENT


       Issue One: The evidence is legally insufficient to support

                        the conviction of Appellant

      An appellant may raise legal sufficiency for the first time on appeal in

a criminal case. Washington v. State 127 S.W. 3d 197 (Tex. App. Houston

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

evidence,. 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 Burglary of a Habitation. (CR Vol.

1 p. 10). Under the Texas Penal Code, " [a] person commits an offense [of

burglary] if without the effective consent of the owner, enters a building or a

habitation commits or attempts to commit an assault" Tex. Penal Code

Ann. § 30.01(a)(3) (Casemaker 2014).




                                                                             10
      Burglary becomes a felony in the second degree if at trial it is shown

that the offense is committed in a habitation. Tex. Penal Code Ann.

§30.01(c)(2) (Casemaker 2014).

      By statute and by its indictment the State must also prove Appellant

committed Assault. Under the Texas Penal Code, " [a] person commits an

offense [of assault] if the person ... intentionally, knowingly, or recklessly,

causes bodily injury to another...." Tex. Penal Code Ann. § 22.01(a)(1)

(Casemaker 2014).

      ‘Bodily injury’ means physical pain, illness, or any impairment of

physical condition.” Id. at § 1.07(a)(8).

      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).

      Here, Ulloa did testify that Appellant broke through the door of her

bedroom. But there is no evidence that this entry caused bodily injury. It is

true that the State introduced photographic evidence of the state of Ulloa

after the break in, but no affirmative link that the depiction or bodily injury

was the result of the February 5, 2013 break in and not the prior alleged

assaults. Ulloa does not affirmatively testify that during this criminal



                                                                                  11
episode she experienced physical pain, illness, or any impairment of

physical condition as a result of the Appellant’s entry into her room and

striking her on February 5, 2014.

      A person is criminally responsible if the result would not have

occurred but for his conduct, operating either alone concurrently with

another cause, unless the concurrent cause was clearly sufficient to

produce the result and the conduct of the actor clearly insufficient. Tex.

Penal Code Ann. § 6.04(a) (Casemaker 2014).

      In this case the State specifically limited its indictment to include only

the language that Appellant committed assault with no mention of attempt.

      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




                                                                               12
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

of committing assault in the course of an unlawful entry. At trial the state

did not prove beyond a reasonable doubt that Ulloa suffered bodily injury.

The only evidence relating to her injuries were linked to the prior assaults

on February 4, 2013.

      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).




                                                                                 13
      "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).

      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, witnesses do not add evidence that caused bodily

injury by the February 5, 2013 entry to Ullna’s room. It would only be

theorizing or guessing about the possible meaning of the facts and

evidence presented to conclude that Appellant caused the injury in this

separate offense.



                                                                                   14
      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 is

guilty of this specific offense. Concluding so, based on the evidence

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

factfinder. Thus, the evidence is legally insufficient as indicted.




                                                                            15
                           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




                                                                              16
 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 1,378 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




                                                                             17
                      CERTIFICATE OF SERVICE

     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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