                                                                                    PD-0840-14
                                                                   COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                Transmitted 1/29/2015 10:32:39 AM
 January 29, 2015                                                 Accepted 1/29/2015 11:12:10 AM
                                                                                     ABEL ACOSTA
                                   PD-0840-14                                                CLERK


                                     IN THE
                      COURT OF CRIMINAL APPEALS
                        SITTING AT AUSTIN, TEXAS
                _________________________________________________

                             KEIONA DASHELLE NOWLIN,

                                                   PETITIONER

                                         V.

                              THE STATE OF TEXAS

                    ___________________________________________

                  ON REVIEW FROM THE TENTH COURT OF APPEALS
                              No. 10-12-00239-CR
              AN APPEAL OF A CONVICTION IN CAUSE NO. 2011-2523-C1
                   FROM THE 19TH JUDICIAL DISTRICT COURT OF
                           MCLENNAN COUNTY, TEXAS

                    ____________________________________________


                                   STATE'S BRIEF

                    ____________________________________________


ABELINO "ABEL" REYNA                          GABRIEL C. PRICE
Criminal District Attorney                    Appellate Division
McLennan County, Texas                        State Bar No. 24068071

                                              219 North 6th Street, Suite 200
                                              Waco, Texas 76701
                                              [Tel.] (254) 757-5084
                                              [Fax] (254) 757-5021
                                              [Email]
                                              gabe.price@co.mclennan.tx.us
                                         i
                     Identity of Parties and Counsel


Petitioner                               Keiona Dashelle Nowlin

Petitioner’s Trial Attorney              Mr. Robert Callahan
                                         Mr. Cody Stapp
                                         100 N. 6th St.,
                                         Waco, Texas 76701

Petitioner’s Attorney on Appeal          Mr. John Donahue
                                         204 N. 6th. St.
                                         Waco, Texas 76701

State’s Trial Attorney                   Mr. Robert Moody
                                         Mr. Mark Parker
                                         Assistant Criminal District
                                         Attorneys
                                         219 North 6th Street, Suite 200
                                         Waco, Texas 76701

State’s Attorney on Appeal               Abelino ‘ Abel’ Reyna
                                         Criminal District Attorney
                                         Alex J. Bell
                                         Assistant Criminal District
                                         Attorney
                                         219 North 6th Street, Suite 200
                                         Waco, Texas 76701




                                    ii
                                               Table of Contents


Contents
Identity of Parties and Counsel............................................................................ ii
Table of Contents .................................................................................................. iii
Table of Authorities .............................................................................................. iv
Statement of the Case ............................................................................................ v
Issues Presented .................................................................................................... vi
Statement of Facts ...................................................................................................1
Summary of Argument ..........................................................................................2
Argument .................................................................................................................3
  Issue 1 The evidence was legally sufficient to support a conviction ...........3
  LAW .......................................................................................................................4
     Elements of Hindering Apprehension .................................................................4
     Legal Sufficiency ..................................................................................................5
  ARGUMENT.........................................................................................................8
     Relief ..................................................................................................................13
Prayer ......................................................................................................................16
Certificate of Compliance ....................................................................................16
Certificate of Service .............................................................................................17




                                                              iii
                                          Table of Authorities

Supreme Court Opinions
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ..... 5, 6

Texas State Opinions
Beardsley v. State, 738 S.W.2d 681 (Tex. Crim. App. 1987) ............................... 7
Canida v. State, 434 S.W.3d 163 (Tex. Crim. App. 2014) ................................. 14
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) ................................. 6
Dillon v. State, 574 S.W.2d 92 (Tex. Crim. App. 1978) ...................................... 7
Gardner v. State, 736 S.W.2d 179 (Tex. App.—Dallas 1987) ............................. 7
Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) ..................................... 7
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ................................... 6, 7
Menchaca v. State, 901 S.W.2d 640 (Tex. App.—El Paso 1995) ........................ 8
Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012) .................................. 7
Nowlin v. State, 2014 Tex. App. LEXIS 5309 (Tex. App. Waco May 15 2014) . 9
Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) ................................... 6
Sharpe v. State, 881 S.W.2d 487 (Tex. App.—El Paso 1994) ............................. 8
Trejo v. State, 766 S.W.2d 381 (Tex. App.—Austin 1989) ................................. 8

Texas State Statutes
Tex. Penal Code Ann. § 38.05(a)(1) (West 2009) ............................................... 4
Tex. Penal Code Ann. § 38.05(d) (West 2009) ................................................... 5

Rules
Tex. R. App. P. 9.4(e) ........................................................................................... 14
Tex. R. App. P. 9.4(i) ........................................................................................... 14
Tex. R. App. P. 9.4(i)(1) ....................................................................................... 15


                                                         iv
                          Statement of the Case


     Petitioner, KEIONA DASHELLE NOWLIN, was charged by
indictment with HINDERING APPREHENSION OF A FELON COUNT I

and ESCAPE COUNT II as proscribed by Section 38.05 and 38.06 of the
Texas Penal Code. This offense was alleged to have been committed on or
about the 13th day of October, 2011, in McLennan County, Texas. 1 CR 6.

     Petitioner pled not guilty to both counts. 1 CR 54. Trial was before the
court beginning and ending June 26th, 2012 with a verdict of guilty on
Count I and not guilty on Count II. Punishment was assessed by the court
at four years imprisonment on the Hindering Apprehension Count in the
Texas Department of Criminal Justice – Institutional Division and no fine. 1
CR 58.
     The Tenth Court of Appeals affirmed in a memorandum opinion on
May 15, 2014.




                                     v
                                Issues Presented

Petitioner’s Issues Presented and State’s Response to each:
1. The Tenth Court erred in holding that the evidence was sufficient to

prove that Nowlin knew Degrate was being arrested for a felony offense.
State’s Response: The Tenth Court correctly held that the evidence was
legally sufficient to prove that Nowlin knew that Degrated was charged,

arrested for or convicted of a felony offense. The Tenth Court correctly
gave deference to the Trial Court’s factfinding duty and the reasonable
inferences the Trial Court relied on in finding Nowlin guilty.




                                         vi
                             Statement of Facts

      On October 13, 2011, Deputy U.S. Marshals (The Marshals) were
attempting to arrest Demarcus Degrate (Degrate) on a warrant for the
offense of Felon in Possession of a Firearm. 4 RR 15. After receiving

information on a potential location for Degrate, The Marshals started to
watch that location. 4 RR 16-17. Eventually, The Marshals spotted Degrate
and Petitioner (Nowlin) exiting the residence. 4 RR 17. The Marshals called
for additional units and then went to execute the warrant on Degrate. 4 RR
19. Nowlin warned Degrate, “Those are the Marshals” and “That’s the
laws. Run.” 4 RR 52. Degrate then took off running from The Marshals. 4
RR 19. Nowlin then began to run in a different direction. 4 RR 41. She was
eventually stopped by Deputy Marshal Slavich. 4 RR 41. Nowlin was
placed in handcuffs and detained in Deputy Slavich’s vehicle. 4 RR 42.
Nowlin was then able to manipulate the seatbelt latch, unbuckle herself,
open the door of the vehicle and again flee from the scene. 4 RR 43. While
fleeing, Nowlin lost her balance and fell head first to the ground. 4 RR 43.

She was then placed under arrest. 4 RR 44. Nowling admitted to Deputy
Slavich, “she didn’t want her man to get arrested,” and “she knew he
(Degrate) was supposed to come up and turn himself in on Wednesday.”4
RR 52. Nowlin also told Deputy Slavich that she “knew he (Degrate) was
out on bond and the bondsman was going off his bond.” 4 RR 53. Nowlin
had the name “Demarcus Degrate” tattooed just below her clavicle notch. 4


                                      1
RR 54. Nowlin explicitly told Deputy Slavich that “she warned him
(Degrate).” 4 RR 74.




                            Summary of Argument

        The evidence is legally sufficient to prove that Petitioner knew
Demarcus Degrate was charged, arrested for or convicted of a felony. The

evidence of the close intimate relationship between Nowlin and Degrate,
the actions of Nowlin at the scene, and the admissions that Nowlin made to
Deputy Slavich provided a rational basis for the Trial Court’s verdict in this
case.
        In the alternative, Petitioner’s requested remedy is incorrect. The only
element being challenged before This Court is the aggravating element of
whether Nowlin knew Degrate was charged, being arrested for or
convicted of a felony. Where a court finds that the evidence of the
aggravating element of an offense is insufficient, the court may reform the
verdict to a lesser included offense that was necessarily proven by the
remaining evidence and an acquittal in not proper.




                                        2
                                 Argument

Issue 1 The evidence was legally sufficient to support a conviction

      Petitioner argued in the Tenth Court of Appeals that the evidence

was legally insufficient to sustain a conviction on two grounds. First, that

the evidence was insufficient to prove that Nowlin “warned” Degrate of

impending discovery or apprehension; Second, that the evidence was

insufficient to prove Nowlin knew that Degrate was charged with a felony

offense. The Tenth Court of Appeals, in a memorandum opinion, rejected

both arguments, holding the evidence was legally sufficient to uphold the

conviction under both issues. Petitioner abandoned the first issue

presented to the Tenth Court of Appeals and proceeded only on the second

issue in the Petition for Discretionary Review. This Honorable Court

granted Petitioner’s request on the single issue of “Whether the court of

appeals was correct in holding that the evidence was legally sufficient to

prove that Nowlin knew Degrate was charged with a felony offense.” The

only question raised by Petitioner is whether evidence of the aggravating




                                      3
element, raising the level of offense from a Misdemeanor to a Felony, is

legally sufficient.


LAW

Elements of Hindering Apprehension
      A person is guilty of the offense of hindering apprehension or

prosecution if it is shown that "with intent to hinder the arrest, prosecution,

conviction, or punishment of another for an offense...or with intent to

hinder the arrest of another under the authority of a warrant or capias, he:

(1) harbors or conceals the other; (2) provides or aids in providing the other

with any means of avoiding arrest or effecting escape; or (3) warns the

other of impending discovery or apprehension." Tex. Penal Code Ann.

§ 38.05(a)(1) (West 2009). The offense of hindering apprehension is a class

A misdemeanor except an offense is a felony of the third degree if the

person who is harbored, concealed, provided with a means of avoiding

arrest or effecting escape, or warned of discovery or apprehension is under

arrest for, charged with, or convicted of a felony, including an offense

under Section 62.102, Code of Criminal Procedure, or is in custody or



                                       4
detention for, is alleged in a petition to have engaged in, or has been

adjudicated as having engaged in delinquent conduct that violates a penal

law of the grade of felony, including an offense under Section 62.102, Code

of Criminal Procedure, and the person charged under this section knew

that the person they harbored, concealed, provided with a means of

avoiding arrest or effecting escape, or warned of discovery or

apprehension is under arrest for, charged with, or convicted of a felony, or

is in custody or detention for, is alleged in a petition to have engaged in, or

has been adjudicated as having engaged in delinquent conduct that

violates a penal law of the grade of felony. Id. § 38.05(d).


Legal Sufficiency
      Evidence is legally sufficient to support a conviction if, after assessing

all the evidence in the light most favorable to the verdict, any rational trier

of fact could find the essential elements of the crime beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979). An appellate court reviews all of the evidence, whether it was

properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex.


                                        5
Crim. App. 2007). Direct and circumstantial evidence are equally probative,

and circumstantial evidence alone can be sufficient to establish guilt. Id.;

Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995).

      It is the factfinder's duty "to resolve conflicts in the testimony, to

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

ultimate facts." Jackson, 443 U.S. at 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560. The

appellate court is to "determine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict." Hooper v.

State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). When the record supports

conflicting inferences, the appellate court presumes that the factfinder

resolved the conflicts in favor of the prosecution and therefore defer to that

determination. Jackson, 443 U.S. at 326, 99 S. Ct. 2781, 61 L. Ed. 2d 560.

      Direct and circumstantial evidence are treated equally:

"Circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper, 214 S.W.3d at 13. “It is the State's burden to prove


                                        6
each element of the offense beyond a reasonable doubt, not to exclude

every conceivable alternative to a defendant's guilt.” Merritt v. State, 368

S.W.3d 516, 526 (Tex. Crim. App. 2012) (citing State v. Turro, 867 S.W.2d 43,

47 (Tex. Crim. App. 1993) (explaining that “the evidence is not rendered

insufficient simply because appellant presented a different version of the

events”)). In a circumstantial evidence case, it is not necessary that each

fact, by itself, directly and independently prove the guilt of the accused.

The cumulative force of all the incriminating circumstances may be

sufficient to warrant a conclusion of guilt. Beardsley v. State, 738 S.W.2d 681,

685 (Tex. Crim. App. 1987). Circumstantial evidence cases have no different

standard of review than those cases supported by direct evidence. Geesa v.

State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991).

      Proof of a culpable mental state generally exists in circumstantial

evidence. Gardner v. State, 736 S.W.2d 179, 182 (Tex. App.—Dallas 1987),

aff'd, 780 S.W.2d 259 (Tex. Crim. App. 1989). Thus, proof of knowledge is

an inference drawn by the trier of fact from all the circumstances. Dillon v.

State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978); Trejo v. State, 766 S.W.2d


                                       7
381, 385-86 (Tex. App.—Austin 1989). A jury can infer knowledge or intent

from the acts, conduct, and remarks of the accused and from the

surrounding circumstances. Menchaca v. State, 901 S.W.2d 640, 652 (Tex.

App.—El Paso 1995); Sharpe v. State, 881 S.W.2d 487, 490 (Tex. App.—El

Paso 1994).


ARGUMENT

      The Tenth Court of Appeals did not err in holding that the evidence

was legally sufficient as to the aggravating factor that Nowlin knew

Degrate was charged, arrested for or convicted of a felony offense.

      The U.S. Marshals were out to arrest Degrate for the offense of Felon

in Possession of a firearm. 4 RR 40. Petitioner “did not want her man to get

arrested.” 4 RR 52. Petitioner knew Degrate had been arrested, was on a

State bond, that he had a problem with his bond, and that he was supposed

to turn himself in. 4 RR 52-53. She was Degrate’s companion and had his

name tattooed on her chest. State’s Ex. 3. She knew something that caused

her to yell at Degrate to run as soon as she recognized the U.S. Marshals’

vehicles. 4 RR 27, 28, 52-53. Petitioner attempted to flee from the area but

                                      8
was placed into custody herself. 4 RR 53. Additionally, she made efforts to

escape her detention by opening the door and running away while still

handcuffed. 4 RR 43. She admitted to warning Degrate that he was going to

be apprehended. 4 RR 52-53.

      The Tenth Court of Appeals relied on the relevant circumstances

around the relationship between Nowlin and Degrate, the actions of

Nowlin on the date of the offense and the admissions by Nowlin to Deputy

Slavich in affirming the Trial Court’s decision to find Petitioner guilty of

felony hindering apprehension. Nowlin v. State, 2014 Tex. App. LEXIS 5309,

at 11 (Tex. App. Waco May 15 2014). Petitioner’s argument would have

This Court ignore basic common sense.

      First, in order to find the evidence insufficient that Nowlin knew

Degrate was charged with a felony, This Court would have to ignore the

close intimate relationship between Nowlin and Degrate. The relationship

between the individuals is a circumstance that is intertwined with the

crime that Nowlin committed. The fact that she was in an intimate

relationship with Degrate is evidence that she has knowledge of important


                                       9
or intimate details of Degrate’s life, including what crimes he has

committed and what he is wanted for. Nowlin warned Degrate because she

“didn’t want her man to get arrested.” 4 RR 52. This shows Nowlin’s

knowledge of Degrate’s criminal activity and his status as being wanted for

that criminal activity.

      Second, This Court would have to ignore the fact that Nowlin knew

Degrate was wanted on an outstanding bond issue and needed to turn

himself in. The fact that she admitted to knowing about Degrate’s criminal

charges that were pending and that she knew Degrate was going to be

arrested is evidence that she was aware of his criminal conduct and was

aware that he was wanted. Being that Nowlin was aware of Degrate’s

criminal conduct; it was not unreasonable for the Trial Court to infer that

she knew why he was wanted. These two facts alone are sufficient evidence

for the Trial Court to reasonably infer that Nowlin knew of Degrate’s

criminal exploits and knew he was wanted on a felony charge.

      In addition to the above facts, this court would also have to ignore

Nowlin’s actions at the scene of the offense. As soon as she recognized the


                                      10
U.S. Marshal’s vehicles she warned Degrate and told him to run. 4 RR 52.

She then fled herself before being apprehended. 4 RR 41. Once

apprehended, she then fled the custody of Deputy Slavich while in

handcuffs. 4 RR 43. Nowlin’s actions at the scene provide additional

evidence for the Trial Court’s finding Petitioner guilty of a felony offense.

The actions taken by Nowlin are evidence of her knowledge of the serious

nature of the criminal conduct of Degrate. Opening herself up to criminal

charges is a large risk. The Trial Court was reasonable to conclude that

Nowlin took this risk because she knew the serious nature of the reason

Degrate was wanted.

      Lastly, this court would have to ignore the admissions made by

Nowlin. Deputy Slavich testified that Nowlin stated, “she knew the

Marshal’s vehicles by sight” and stated that “she didn’t want her man to

get arrested.” 4 RR 52. The fact that Nowlin knew the Marshal’s vehicles by

sight shows that she was familiar with law enforcement and actively

learned what the vehicles from a specific law enforcement agency looked

like in order to protect her intimate partner, Degrate, from getting arrested.


                                      11
The fact that she learned about The Marshals’ vehicles specifically is

another fact that the Trial Court relied on in finding that Nowlin knew

about Degrate’s criminal activity. The facts that she knew The Marshals

were there and that they were going to arrest Degrate shows her familiarity

with the charges and criminal activity of Degrate. There was no evidence

that Nowlin was wanted for any offense or on any warrant at the time of

the offense. The only evidence was that she knew the vehicles on sight and

she warned Degrate because “she didn’t want her man to get arrested.” It

stands to reason that, first, she knew he was wanted because she knew the

Marshals were there to arrest him and second, because of their relationship

she knew why he was wanted.

      Petitioner also relies on the fact of the federal indictment as the only

evidence of Degrate being sought for a felony. Pet. Br. 3. Petitioner’s sole

reliance on the sealed indictment is misplaced. Petitioner fails to take into

consideration the additional evidence discussed above that the trial court

relied on in finding Petitioner guilty. Whether the indictment was sealed or




                                      12
not does not affect Nowlin’s relationship with and knowledge of Degrate’s

criminal activity, her actions or her admissions to The Marshals.

         Because the evidence was legally sufficient for a rational factfinder to

infer Petitioner’s knowledge of Degrate’s criminal offenses, the Tenth

Court of Appeal’s decision should be affirmed.


Relief

         Petitioner’s requested relief is incorrect under the facts of this case. If

This Court finds that the evidence of Petitioner’s knowledge of Degrate

being charged, arrested for or convicted of a felony is insufficient, This

Court should reform the judgment to reflect a conviction for the lesser

included offense of misdemeanor hindering apprehension.

         “After a court of appeals has found the evidence insufficient to

         support an appellant's conviction for a greater-inclusive

         offense, in deciding whether to reform the judgment to reflect a

         conviction for a lesser-included offense, that court must answer

         two questions: 1) in the course of convicting the appellant of the

         greater offense, must the jury have necessarily found every

                                          13
      element necessary to convict the appellant for the lesser-

      included offense; and 2) conducting an evidentiary sufficiency

      analysis as though the appellant had been convicted of the

      lesser-included offense at trial, is there sufficient evidence to

      support a conviction for that offense? If the answer to either of

      these questions is no, the court of appeals is not authorized to

      reform the judgment. But if the answers to both are yes, the

      court is authorized—indeed required—to avoid the "unjust"

      result of an outright acquittal by reforming the judgment to

      reflect a conviction for the lesser-included offense.”

Canida v. State, 434 S.W.3d 163, 166 (Tex. Crim. App. 2014) citing Thornton

v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014).

      The underlying elements of hindering apprehension were found to

be sufficient by The Tenth Court of Appeals. Because only the aggravating

factor of whether Petitioner knew Degrate was charged, arrested for or

convicted of a felony is being challenged, all of the essential elements of




                                       14
misdemeanor hindering apprehension have necessarily been found by the

factfinder.




                                  15
                                   Prayer

      For the foregoing reasons, the State of Texas prays that this
Honorable Court affirm the conviction and punishment of KEIONA
DASHELLE NOWLIN and prays for such other and further relief as may

be provided by law.

                                           Respectfully Submitted:

                                           ABELINO ‘ABEL’ REYNA
                                           Criminal District Attorney
                                           McLennan County, Texas

                                           /s/Gabriel C. Price_____________
                                           GABRIEL C. PRICE
                                           Appellate Division
                                           219 North 6th Street, Suite 200
                                           Waco, Texas 76701
                                           [Tel.] (254) 757-5084
                                           [Fax] (254) 757-5021
                                           [Email]
                                           gabe.price@co.mclennan.tx.us
                                           State Bar No. 24068071
                         Certificate of Compliance
      This document complies with the typeface requirements of Tex. R.
App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document
also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if



                                      16
applicable, because it contains 2,721 words, excluding any parts exempted
by Tex. R. App. P. 9.4(i)(1).

                                Certificate of Service
      I certify that I caused to be served a true and correct copy of this
State’s Brief by eservice or email on Petitioner’s attorney of record and the
State Prosecuting Attorney.


DATE: 1/29/2015                                /s/Gabriel C. Price________________

                                               GABRIEL C. PRICE




                                          17
