                                                                     ACCEPTED
                                                                 12-15-00001-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                            7/22/2015 9:05:58 PM
                                                                   CATHY LUSK
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-15-00001-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    7/22/2015 9:05:58 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS




                    OSCAR PERKINS,
                      APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




        ON APPEAL IN CAUSE NUMBER 114-1209-14
       FROM THE 114TH JUDICIAL DISTRICT COURT
              OF SMITH COUNTY, TEXAS
    HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING


                  APPELLANT’S BRIEF


JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437

ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Oscar Perkins

APPELLANT’S TRIAL COUNSEL
    M. Brent Ratekin
    422 S. Spring Street
    Tyler, Texas 75702

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Leslie McLean
    Jacob Putman
    Gerald Privin
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702

APPELLEE’S APPELLATE COUNSEL
    Mike West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702




                                 ii
                                 TABLE OF CONTENTS
                                                                                           PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

       ISSUE ONE: THERE WAS LEGALLY INSUFFICIENT
       EVIDENCE TO FIND APPELLANT GUILTY OF THE
       OFFENSE OF ASSAULT.

       ISSUE TWO: IT WAS ERROR FOR THE TRIAL COURT TO
       DENY APPELLANT’S MOTION FOR DIRECTED VERDICT.

       ISSUE THREE: THE TRIAL COURT ERRED IN NOT
       INCLUDING A LESSER INCLUDED OFFENSE IN THE JURY
       CHARGE.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    B. Law Requiring Display of Weapon. . . . . . . . . . . . . . . . . . . . . . . 7
    C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
    D. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
                                                 iii
ISSUE THREE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 11
    A. Law on Lesser-included Offenses. . . . . . . . . . . . . . . . . . . . . . .                    11
    B. Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   13
    C. Remedy and relief requested.. . . . . . . . . . . . . . . . . . . . . . . . . .                 14

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16




                                                   iv
                                TABLE OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 37.08 (West 2013). . . . . . . . . . . . . . . 11
TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2013). . . . . . . . . . . . . . . 11
TEX. PENAL CODE ANN. §12.42(d) (West 2013). . . . . . . . . . . . . . . . . . . 2, 3
TEX. PENAL CODE ANN. §22.01 (West 2013). . . . . . . . . . . . . . . . 1, 3, 7, 13


CASES
Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012). . . . . . . . . . 12
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). . . . . . . . . . . . . 9
Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App. 1999).. . . . . . . . . . . 9
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007).. . . . . . . . . . . . . 12
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
    61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). . . . . . . 6
Madden v. State, 799 S.W.2d 683 (Tex. Crim. App. 1990).. . . . . . . . . . . 7
Moreno v. State, 755 S.W.2d 866 (Tex. Crim. App. 1988). . . . . . . . . . . 10
Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986). . . . . . . . . . . . . 9
Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011). . . . . . . . . . 12, 13
Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211,
    72 L.Ed.2d 652 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Turro v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993). . . . . . . . . . . . . 10
Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007). . . . . . . . . . 10
Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996). . . . . . . . . . . 7


RULES
TEX. R. APP. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
                                                   v
TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                    vi
                                        NO. 12-15-00001-CR

OSCAR PERKINS,                                          §    IN THE COURT OF APPEALS
APPELLANT                                               §
                                                        §
VS.                                                     §    12TH JUDICIAL DISTRICT
                                                        §
THE STATE OF TEXAS,                                     §
APPELLEE                                                §    TYLER, TEXAS


                                      APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:

        Comes now Oscar Perkins (“Appellant”), by and through his attorney

of record, James Huggler, and pursuant to the provisions of TEX. R. APP.

PROC.38, et seq., respectfully submits this brief on appeal.




                                 STATEMENT OF THE CASE

        Appellant was indicted in cause number 114-1209-14 and charged

with the third degree felony offense of Assault. I CR 11.1 TEX. PENAL

CODE ANN. §22.01(a)(1) and (b)(2) (West 2013). The punishment range

was enhanced to a habitual felony offender by the inclusion of two
1

The Clerk’s Record is designated “CR” with roman numeral preceding “CR” indicating the correct volume and an arabic
numeral following “CR” specifying the correct page in the record.
                                                        1
sequential felony convictions. I CR 8; TEX. PENAL CODE ANN. §12.42(d)

(West 2013). A jury was selected, and following evidence and argument

of counsel found Mr. Perkins guilty of the offense as indicted. I CR 96; IX

RR 74.2 The punishment phase was to the court. Following evidence and

argument of counsel, the court assessed a life sentence. I CR 100-103; X

RR 18-19. Notice of appeal was timely filed. I CR 106. This brief is

timely filed on or before July 22, 2015 following proper extension by this

Court.




                                ISSUES PRESENTED

Issue One: There was legally insufficient evidence to find Appellant
guilty of the offense of assault.

Issue Two: It was error for the trial court to deny Appellant’s motion
for directed verdict.

Issue Three: The trial court erred in not including a lesser included
offense in the jury charge.




2
 References to the Reporter’s Record are made using “RR” with a roman numeral preceding
“RR” indicating the volume and an arabic numeral following “RR” specifying the correct page.
                                              2
                     STATEMENT OF THE FACTS

     Oscar Perkins was indicted in cause number 114-1209-14 and

charged with the third degree felony offense of Assault by causing bodily

injury to Patsy Perkins, his estranged wife, by impeding her normal

breathing and circulation of the blood by applying pressure to her neck.

I CR 11. TEX. PENAL CODE ANN. §22.01(a)(1) and (b)(2) (West 2013). The

third degree felony punishment range was enhanced to a habitual felony

offender by the inclusion of two sequential felony convictions. I CR 8; TEX.

PENAL CODE ANN. §12.42(d) (West 2013). Mr. Perkins had rejected a plea

offer of twenty years prior to trial. VI RR 14-15.

     Patsy Perkins is the estranged wife of Oscar Perkins. VII RR 18-19.

He had moved out of their home approximately four months prior to the

acts alleged, apparently due to an affair by Mr. Perkins, or at least the

conclusion by Mrs. Perkins that he had had an affair. VII RR 19, 28. Mrs.

Perkins was involved in a car accident which totaled her suburban on July

2, 2014. VII RR 21, 23-24. Because the car was in both their names, both

signatures were required to be on the settlement check. VII RR 24. After

a title loan was paid, the settlement amount was $1300. VII RR 27-28.

                                     3
They had several conversations by phone about the settlement. VII RR

25. Many of these conversations ended in argument, cursing and hanging

up by one of the parties. VII RR 28.

     The day of the incident, they had a brief conversation and Mrs.

Perkins told her husband that she would not give him any of the money,

and Mr. Perkins telling her not to cash the check. VII RR 30. That

afternoon, Mr. Perkins came to their house. VII RR 32. She let him in

and they spoke in the living room area. VII RR 32. At this point, Mrs.

Perkins alleged her husband hit her with a pillow five times, then with a

fist, and that both caused pain. VII RR 34. They went to the bedroom to

get the check and that is when she testified that he put her in a

chokehold. VII RR 36. She testified that it caused pain, but she could still

breathe.   VII RR 37-38. She told him that she loved him and this

apparently caused him to stop. VII RR 38. She went to a neighbor’s house

and contacted the police. VII RR 40-41. She saw that his car had left and

returned to their home. VII RR 41. Mrs. Perkins was taken to a hospital.

VII RR 42.

     Other witnesses testified regarding the investigation, her medical

                                     4
treatment and her discussions with the District Attorney’s Office

regarding her desire not to prosecute her husband.          Following the

evidence and argument of counsel, Mr. Perkins was found guilty of the

offense as indicted. I CR 96; IX RR 74.

     During the sentencing phase, Mr. Perkins entered a plea of true to

each enhancement paragraph.         X RR 7-8.    Following evidence and

argument of counsel, the court assessed a life sentence. I CR 100-103; X

RR 18-19. A further discussion of the relevant facts is included in the

argument section of this brief.




                     SUMMARY OF ARGUMENT

     There are two sets of issues for this Court to consider. The first and

second issue raised regard the legal sufficiency of the evidence and

whether the trial court erred in denying the motion for a directed verdict.

     The final issue regards the trial courts failure to conduct the

required test to determine if a lesser included charge is appropriate and

the error by denying that charge.




                                     5
                                ARGUMENT

Issue One, Restated: There was legally insufficient evidence to find
Appellant guilty of the offense of assault.

Issue Two, Restated: It was error for the trial court to deny
Appellant’s motion for directed verdict.



                           A. Standard of Review

      Appellant contends that the evidence is legally insufficient to

support the verdict. The standard for reviewing a legal sufficiency

challenge is whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson

v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d

560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993). The evidence is examined in the light most favorable to the

verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871

S.W.2d at 186. A successful legal sufficiency challenge will result in

rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457

U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).

      A challenge to the trial court’s ruling on a motion for directed verdict

is, in actuality, a challenge to the sufficiency of the evidence to support the

                                       6
conviction. Therefore, the standard of review is the same as that used in

reviewing the sufficiency of the evidence. Madden v. State, 799 S.W.2d

683, 686 (Tex. Crim. App. 1990); Williams v. State, 937 S.W.2d 479, 482

(Tex. Crim. App. 1996).



                       B. Elements of the Offense

     A person commits an offense if they intentionally or knowingly cause

bodily injury to a family member by intentionally, knowingly or recklessly

impeding the normal breathing or circulation of the blood of the person by

applying pressure to their throat or neck.      TEX. PENAL CODE ANN.

§22.01(a)(1) and (b)(2) (West 2012).     The element related to their

relationship was not contested.



                     C. Application to These Facts

     At the conclusion of the State’s case, Mr. Perkins sought an

instructed verdict on this issue. VIII RR 85. The case comes down to the

credibility of Patsy Perkins. She was the only witness who testified

regarding choking. Without her testimony, the State’s proof fails. The

issue is that her credibility was drawn into question repeatedly, and on a

                                    7
variety of issues.

     Mrs. Perkins testified that she was more upset that her husband

talked about her in a negative way to another person than she was about

him having an affair. VII RR 51. The check from the insurance company

had been agreed by them to be divided, then Mrs. Perkins refused. VII RR

52. She admitted that he was legally entitled to 50% of the proceeds, but

she deposited the whole amount into her account without his signature.

VII RR 52, 53, 56. She was able to speak during this time. VII RR 62.

     Mrs. Perkins spoke with two different Smith County prosecutors

about the case. VII RR 71, 72. She attempted to file an affidavit of non-

prosecution with the arresting agency. VIII RR 64. She later told the

prosecutors that she did not ever attempt to file an affidavit of non-

prosecution. VIII RR 124, 130. She also maintained this version during

trial, that she had never tried to drop the charges. VIII RR 106-108.

     Her treating physician testified that her injuries could be consistent

with choking, they could also be consistent with other things. VII RR 114.

Her CT scan indicated no injuries. VII RR 115, 122. There was no

medical proof of her injuries, other than her complaint. VII RR 116.

There was no bruising on her neck or her jaw. VII RR 120. The CT scan

                                    8
also did not show any bruising under the skin. VII RR 126. There was no

damage to her throat that was observed. VII RR 131.

     The only evidence that any choking in this case could impede normal

circulation came from Dr. Weber who stated “Yeah, I would suspect so, if

it was done forcefully enough.” VII RR 132. This statement does not rise

to the level of proof required for that element, that the blood flow was

actually impeded. So the case comes down to whether Mrs. Perkins

normal breathing was impeded. By her own testimony, she was still able

to speak, and there was no medical proof of injuries.

     Finally, an unrelated witness testified that the day of the assault,

Mr. Perkins was dropped off and he took Mrs. Perkins to the gas station

leaving Mr. Perkins in the house. VIII RR 89-90.

     The jury, as the trier of fact, "is the sole judge of the credibility of the

witnesses and of the strength of the evidence." Fuentes v. State, 991

S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe

or disbelieve any portion of the testimony. Sharp v. State, 707 S.W.2d

611, 614 (Tex. Crim. App. 1986). The jury may also draw reasonable

inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d

126, 133 (Tex. Crim. App. 1996). When faced with conflicting evidence, the

                                       9
appellate court presumes the trier of fact resolved conflicts in the

prevailing party's favor. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim.

App. 1993).

     However, the duty of a reviewing court requires ensuring that the

evidence presented actually supports a conclusion that the defendant

committed the crime charged. Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007). An appellate court can not uphold a fact-finder's

decision if it is irrational or unsupported by more than a mere modicum

of the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.

1988).

     In this case, the State’s case is made or not by the testimony of the

complaining witness, and we have an estranged spouse who had a motive

to mislead, specifically the check she deposited in her account without her

husband’s signature.      She attempted to file an affidavit of non-

prosecution, stated to prosecutors that she had not done so.



                              D. Conclusion

     This Court should sustain the first and second issues and reverse the

judgment of the trial court and render an acquittal to the charge of assault

                                     10
based on legally insufficient evidence.




Issue Three, Restated: It was error for the trial court to deny Appellant’s
request to include a lesser included instruction in the jury charge.

                   A. Law on Lesser-included Offenses

      In a prosecution for an offense with lesser included offenses, the jury

may find the defendant not guilty of the greater offense, but guilty of any

lesser included offense. TEX. CODE CRIM. PROC. ANN. art. 37.08 (West

2013. An offense is a lesser-included if: (1) it is established by proof of the

same or less than all the facts required to establish the commission of the

offense charged; (2) it differs from the offense charged only in the respect

that a less serious injury or risk of injury to the same person, property, or

public interest suffices to establish its commission; (3) it differs from the

offense charged only in the respect that a less culpable mental state

suffices to establish its commission; or (4) it consists of an attempt to

commit the offense charged to an otherwise included offense. Id. Art.

37.09.

      A two part test is used to determine whether a person is entitled to

a lesser-included offense instruction. The first step is a question of law

                                      11
and does not depend on the evidence. It may be, and to provide notice to

the defendant must be, capable of being performed before trial by

comparing the elements of the offense as they are alleged in the

information with the elements of the potential lesser included offense.

The second step should ask whether there is evidence that supports giving

the instruction to the jury. The defendant is entitled to an instruction on

a lesser included offense where the proof for the offense charged includes

the proof necessary to establish the lesser included offense and there is

some evidence in the record that would permit a jury to rationally find

that if the defendant is guilty, he is guilty only of the lesser included

offense. Anything more than a scintilla of evidence is sufficient to entitle

the defendant to the lesser included charge. Cavazos v. State, 382 S.W.3d

377, 382 (Tex. Crim. App. 2012); Hall v. State, 225 S.W.3d 524, 535-36

(Tex. Crim. App. 2007).

     Although the threshold showing is low, it is not enough that the jury

may disbelieve crucial evidence pertaining to the greater offense, but

rather, there must be some evidence directly germane to the lesser-

included offense for the finder of fact to consider before and instruction is

warranted. Sweed v. State, 351 S.W.3d 63, 67-68 (Tex. Crim. App. 2011).

                                     12
The standard may be satisfied if some evidence refutes or negates other

evidence establishing the greater offense or if the evidence presented is

subject to different interpretations. Sweed, 351 S.W.3d at 68.



                                B. Analysis

     Appellant sought a lesser included instruction for a class A

misdemeanor offense of assault causing bodily injury. TEX. PENAL CODE

ANN. §22.01(a)(1) (West 2013). The difference between the two charges

regards whether an assault causing bodily injury occurred, or whether

Mrs. Perkins’ normal breathing or circulation had been impeded. The

trial court did not conduct any analysis as to the lesser included offense.

VIII RR 137-139.

     Dr. Weber testified that while her complaints could have been

caused by choking, they also could have been caused in other ways. VII

RR 114. The injury which was not contested at trial was a bruise or

hematoma to her forehead. Mrs. Perkins testified that this injury caused

pain. VII RR 34. A lesser included charge should have been included in

the jury charge in this case.



                                    13
                    C. Remedy and Relief Requested

     The trial court correctly found that the specific subsection of

disorderly conduct was a lesser included offense to indecent exposure. The

error occurred when the trial court incorrectly found that there was not

a scintilla of evidence requiring the lesser instruction. The error requires

reversal and a new trial.




                                     14
                         PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that the trial court’s decision be reversed and judgment of acquittal

rendered, or that the case be reversed and remanded for a new trial, and

for other such relief as allowed by law.



                                              Respectfully submitted,

                                               /s/ James Huggler
                                              James W. Huggler, Jr.
                                              State Bar Number
                                              00795437
                                              100 E. Ferguson, Suite 805
                                              Tyler, Texas 75702
                                              903-593-2400
                                              903-593-3830 fax

                                              ATTORNEY FOR
                                              APPELLANT




                                    15
                      CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief of the Appellant has been

forwarded to counsel for the State by electronic filing on this the 22nd day

of July, 2015.




 /s/ James Huggler
James W. Huggler, Jr.


Attorney for the State:
Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702




                    CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 3,281 words as counted by
Corel WordPerfect version x5.


 /s/ James Huggler
James Huggler




                                     16
