                                                                           ACCEPTED
                                                                       03-14-00702-CR
                                                                               4934719
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                  4/17/2015 1:43:27 PM
                                                                     JEFFREY D. KYLE
                                                                                CLERK
                    No. 03-14-00702-CR

                 IN THE COURT OF APPEALS             FILED IN
                                              3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS      4/17/2015 1:43:27 PM
                                                 JEFFREY D. KYLE
                                                      Clerk
                          ********

ANTONIOUS DESMOND BRINSON
                            VS.

         THE STATE OF TEXAS
                          ********

         ON APPEAL FROM THE 264th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 72150

                           ******
                 STATE’S BRIEF
                           ******

                         HENRY GARZA
                         DISTRICT ATTORNEY

                         BOB D. ODOM
                         ASSISTANT DISTRICT ATTORNEY
                         P.O. Box 540
                         Belton, Tx 76513
                         (254) 933-5215
                         FAX (254) 933-5704
                         DistrictAttorney@co.bell.tx.us
                         SBA No. 15200000

Oral Argument Not Requested


                             1
                  TABLE OF CONTENTS

ITEM                                                      PAGE

Index of Authorities ……………………………………………………………………             3

Statement Regarding Oral Argument …………………………………………..        4

Statement of the Case …………………………………………………………………             4

Statement of Facts ……………………………………………………………………...            5

Summary of State’s Argument …………………………………………………….          11

Argument and Authorities ………………………………………………………….           11

       Issue on Appeal ………………………………………………………………..          11
             WAS EVIDENCE SUFFICIENT TO PROVE BEYOND
             A REASONABLE DOUBT THAT THE APPELLANT
             ASSAULTED VICTIM AS ALLEGED IN THE
             INDICTMENT?

       Standard of Review ………………………………………………………….          11

       Application and Analysis ………………………………………………….       12

Prayer ………………………………………………………………………………………                   17

Certificate of Compliance with Rule 9 ………………………………………..    18

Certificate of Service …………………………………………………………………           18




                              2
                 INDEX OF AUTHORITIES

CASES                                                       PAGE

Brooks v. State, 323 S.W.3d 893 ……………………………………………….          12
     (Tx. Cr. App. 2010)

Hacker v. State, 389 S.W.3d 860 ………………………………………………..         16
     (Tx. Cr. App. 2013)

Isassi v. State, 330 S.W.3d 633 …………………………………………………. 12, 17
       (Tx. Cr. App. 2010)

Jackson v. Virginia, 443 U.S. 307 (1979) …………………………………… 11, 12

Murray v. State, __S.W.3d__, No. PD-1230-14 ……………………………..    16
     (Tx. Cr. App. April 15, 2015)

Williams v. State, 235 S.W.3d 742 ……………………………………………          12
      (Tx. Cr. App. 2007)




                               3
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Antonious Desmond Brinson, was charged by

indictment with the offense of assault with bodily injury on family

member, having a prior conviction for assault with bodily injury on a

family member. The indictment also included allegations in the second

paragraph that the Appellant had been previously convicted of a felony

offense for purposes of enhancement of sentence. (CR-4).

      The Appellant was tried before a jury in the 264th District Court of

Bell County, Texas, Judge Martha J. Trudo presiding. The jury found the

Appellant guilty as charged in the indictment. (CR-85, 87; RR7-144).

      Upon the Appellant’s election (CR-64), the same jury considered

the issue of punishment. The jury found the enhancement allegation in

the indictment to be true and assessed punishment at 13 years in the

Texas Department of Criminal Justice Institutional Division and a fine of

$1,000.00. (CR-86, 87; RR8-41).

      The Appellant gave timely notice of appeal (CR-91) and the trial

court certified his right to do so. (CR-78).



                                      4
STATEMENT OF FACTS

      The Appellant and the State entered into a stipulation, approved

by the trial court, that the Appellant had been previously convicted of

assault with bodily injury upon a family member as alleged in the

indictment. (RR6-5, 6).

      On the evening of October 10, 2013, the victim, Javonda Johnson,

was at home with her 8 children. (RR6-63, 65). There had been a

birthday party that day for one of the children and a number of toys had

been left outside in the front yard, including a metal baseball bat. (RR6-

64). The Appellant was the father of two of her children and lived with

them on a come and go basis and all of the children considered him their

stepfather. (RR6-98, 99; RR7-9).

      That day both the Appellant and the victim had been drinking

heavily (RR6-69, 110, 111; RR7-12, 13), they had argued, and the

Appellant left. At about 8:00 p.m., the victim’s 13 year old daughter, M.J.,

heard a knock on the door. She looked out and saw the Appellant and

three other men. (RR6-65, 66, 100).        She asked for, and received,

permission from her mother to open the door. (RR6-66, 67).




                                     5
      Javonda Johnson went outside to talk with the Appellant. (RR6-67,

68). M.J. claimed at trial that her mother then picked up the baseball bat

and swung at the Appellant, who caught it in his hand. (RR6-68, 69, 72).

When she gave her handwritten statement to the police that night,

however, M. J. stated that the Appellant had grabbed the bat, charged at

her mother, and hit her with it. (RR6-76, 77).

      M.J. testified that both the Appellant and the victim fell to the

ground and that he hit her in the face with the bat while she was

attempting to get it away from him. (RR6-72). She stated that the

Appellant had hit her mother in the head with the bat and that she saw

him strike the blow. (RR6-74, 78). She said that the first time he hit her

with the bat it was “on purpose” and he simply grabbed the bat and

swung it at her mother. (RR6-94).

      M.J. conceded that she had spoken with her mother a lot about the

case (RR6-92) and that the Appellant had moved back in with the victim

and her family after the incident. (RR7-93).

      M.J.’s older sister, T. J., heard the knock on the door and looked out

to see the Appellant and three of his friends. (RR6-100). She heard the

Appellant tell her mother to come outside so that he could ask her some

questions. She also heard her mother say that she was not going to walk


                                     6
out there because there was “a bunch of them and only one of her.”

(RR6-102).

      T.J. left the room for a short time and when she returned she saw

M.J. standing in the doorway and heard her mother yelling. T.J. got her

younger siblings to sit down and then went to the doorway. (RR6-102,

103). She saw the Appellant and her mother on the ground wrestling

with the bat between them. She said that the bat hit her mother in the

face and that the Appellant had the bat in his hands and her mother

pushed it away. She said the Appellant hit her mother in the face with

the bat. (RR6-104, 105).

      T.J. called 911 because she could see a visible knot on her

mother’s forehead and she was bleeding. (RR6-105). See State’s Exhibit

4. (RR9).

      For the first time at trial, T.J. claimed that she saw her mother

grab the bat first and stated that she believed that the Appellant then

took it out of her hand. She said both were punching the other after

they fell to the ground. (RR6-107, 108).

      T.J. wrote out a handwritten statement for the police minutes

after the incident. In that statement she said that the Appellant was

angry with the victim and that he attacked her with the metal baseball


                                    7
bat. She did not say anything about her mother picking up the bat first.

(RR6-113, 114, 130, 131). Like her sister, she had talked about the case

with her mother. She also confirmed that the Appellant was living with

them again about two weeks after the incident. (RR6-114, 115).

      T. J. never saw any injuries on the Appellant but did see the knot

on her mother’s head. (RR6-132). She called 911 because the Appellant

had attacked her mother. (RR6-134).

      Javonda Johnson testified that two of her nine children had been

fathered by the Appellant and that he had stayed with her the night

before the incident. She said that they had been drinking a lot of beer

and arguing. (RR7-6, 8, 11, 12). That evening the Appellant had come to

the door with three other men. She and the Appellant went outside and

started arguing. (RR7-12, 13). He was upset about her going to other

people’s houses and talking to “somebody”. He was probably angry

because he thought she was cheating on him. (RR7-15). Javonda is 5’4”

tall and weighs 140 pounds. The Appellant is 6’2” tall and weighs 215

pounds. (RR7-16).

      At trial Javonda said that she picked up the bat and they were

struggling over it and fell to the ground.    She said that when she

managed to get back up she had a knot on her head. She claimed that


                                   8
she did not remember the Appellant swinging at her and they both had

their hands on it during the struggle. (RR7-1&).

      She stated that she obviously was hit because she had a softball

sized knot on her forehead. (RR7-19). She was pregnant with the

Appellant’s child at the time. (RR7-40).

      Javonda Johnson admitted that she had told the 911 operator that

the Appellant had ordered her outside to confirm something he had

heard about her and that he had picked up the bat and told her that if

she was not truthful he would “kick her ass”. She told the operator that

he then hit her on the head with the bat. (RR7-72). See 911 recording

State’s Exhibit 7. (RR9). She also confirmed that she had told the first

police officer on the scene that the Appellant had picked up the bat and

hit her on the head with it. (RR7-24). In her handwritten statement she

stated that the Appellant had accused her of something, put his hands

on her and then hit her on the head with the bat. (RR7-24-26).

      Javonda also signed a release of obligation stating that she did not

wish to pursue charges against the Appellant and included in that

document that the Appellant had hit her on the head with the bat. (RR7-

27). State’s Exhibit 9 (RR9).




                                    9
      She and the Appellant made up a couple of days later. (RR7-30).

She then gave the Appellant’s attorney a non-prosecution statement

requesting that the case be dismissed. (RR7-34, 35, 43, 44).

      In her failure to cooperate with the prosecution of the Appellant,

Javonda Johnson followed an established pattern. Her children had

called 911 about ten days earlier when the Appellant had grabbed her

around the neck during an argument. She declined to press charges.

(RR7-20). Ms. Johnson was the victim in the case resulting in the 2012

conviction for assault on a family member charged in the indictment

and stipulated to by the Appellant. In that case, during an argument

resulting from his accusations that she was cheating, he punched her

and broke her nose. She attempted for decline to prosecute in that case

as well. (RR7-61). In 2013 the Appellant had thrown a bowl, cutting her

forehead, but again she declined to prosecute. (RR7-60).

      Javonda said that she never wants to prosecute the Appellant.

(RR7-64).   She told Killeen Police Victim’s Assistance Officer Lisa

Hatfield that they had children together and she did not want to see him

go to prison. She testified during the punishment hearing in this case

that she never wanted the trial and pled for leniency. (RR8-10, 13).




                                   10
SUMMARY OF STATE’S ARGUMENT

      When all of the evidence is reviewed in the light most favorable to

the verdict and deference is given to the jury’s rational inferences from

that evidence and its exclusive right to determine the credibility and

weight of the evidence and to resolve conflicts in the evidence, it cannot

be said that a rational jury could not have found beyond a reasonable

doubt that the Appellant committed the offense as alleged in the

indictment.

ARGUMENT AND AUTHORITIES

Issue on Appeal

      Was the evidence insufficient to prove beyond a reasonable doubt

that the Appellant assaulted the victim as alleged in the indictment?

Standard of Review

      Due process of law requires that the State prove, beyond a

reasonable doubt, every element of the offense charged in the

indictment. Jackson v. Virginia, 443 U.S. 307, 313 (1979). In reviewing

the sufficiency of the evidence to support the conviction the court must

consider all of the evidence in the case in the light most favorable to the

verdict in order to determine whether, based upon the evidence and


                                    11
reasonable inferences therefrom, a rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt.

Brooks v. State, 323 S.W. 3d 893, 899 (Tx. Cr. App. 2010).

      In reviewing the evidence in the light most favorable to the

verdict, the court must presume that the trier of fact resolved conflicts

in the testimony, weighed the evidence, and drew reasonable inferences

from that evidence in a manner that supports the verdict. Jackson at

318. The court must consider only whether the fact finder reached a

rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tx. Cr. App. 2010).

      The weight and credibility of the evidence is solely for the fact

finder and the court will not re-evaluate those matters nor substitute its

judgment for that of the fact finder. Isassi at 638; Williams v. State, 235

S.W.3d 742, 750 (Tx. Cr. App. 2007).

Application and Analysis

      In this case the pertinent part of the indictment alleged that the

Appellant did “….intentionally, knowingly, or recklessly cause bodily

injury to Javonda Johnson…by hitting and pushing and striking the said

Javonda Johnson with the hands and fists of the defendant and by hitting

and striking the said Javonda Johnson in the head and face with a metal




                                     12
baseball bat….”. (CR-4). Those elements were set out in the trial court’s

charge as well. (CR-69).

      The Appellant contends that the evidence was insufficient to

prove that he intentionally, knowingly, or recklessly caused bodily

injury to Ms. Johnson by hitting her with his fists or a metal bat.

(Appellant’s Brief at 3). In so arguing he relies upon one side of the

conflicting testimony in the case, while totally ignoring the other side.

This disregards the exclusive right of the jury to determine the

credibility and weight of the evidence was well as the presumption that

the jury resolved conflicts in the evidence in favor of its verdict of guilty.

      Clearly, credibility became a major issue in the case. Javonda

Johnson had a long history of covering for the Appellant after he had

assaulted her and her testimony at trial was sometimes in conflict with

what she had related to the 911 operator, the police officers, and the

victim coordinator.     She admittedly told these witnesses that the

Appellant made accusations against her and had picked up the baseball

bat and charged at her swinging it and striking her in the face. Her

daughter, M.J., said that she saw the Appellant swing the bat and strike

her mother in the face. Javonda Johnson had a knot on her head the size

of a softball.


                                      13
        The victim’s statements at the time of the offense, as well as those

of her daughters, were completely consistent with the Appellant having

attacked her in anger with the baseball bat and having struck her in the

face.

        It was only at trial that Ms. Johnson and her daughters suddenly

claimed that she had picked up the bat and that she had been hit is some

undefined way after she and the Appellant had fallen to the ground to

struggle over the bat. Even then, however, M.J. still stated that the

Appellant clearly hit her mother with the bat “on purpose” and that he

had grabbed the bat and swung it at her. (RR6-94).

        The jury heard that Javonda Johnson was completely opposed to

prosecuting the Appellant and signed a request to that effect even while

stating that he had attacked her with the bat. It also heard the she had

offered a non-prosecution statement to try to persuade the State not to

pursue the case. She and the Appellant had reconciled a couple of days

after the assault and moved back in together. M.J. and T.J. had lived in

the house with both their mother and the Appellant. Their mother had

talked to them about the case. Their testimony had changed by the time

of trial.




                                     14
      Furthermore, the Appellant had physically assaulted Javonda

Johnson three times before and each time she had attempted to drop the

charges to protect the father of two of her nine children and had been

successful twice.

      The new version of the offense by the time of trial obviously

created a conflict in the evidence, as to who first picked up the bat and

whether or not the victim was attacked directly by the Appellant with

the bat or was injured by the Appellant with the bat during a struggle.

Nevertheless, there was evidence before the jury that the Appellant had

started an argument with the victim, ordered her to come outside,

picked up a metal baseball bat, and hit her in the face with it.

      It must be presumed that the jury weighed the credibility of all of

this evidence and then resolved the conflicts in the way that support the

verdict of guilty. It also must be presumed that the jury drew all of the

rational inferences from that evidence necessary to support its verdict.

When all of the evidence is considered there was sufficient evidence for

a rational jury to find beyond a reasonable doubt that the Appellant

intentionally, knowingly, or recklessly caused bodily injury to Javonda

Johnson by striking her with his hands or a metal baseball bat.




                                     15
      The Appellant simply relies upon that part of the evidence in

which the victim and her daughters sought to protect him, while

ignoring all of the rest of the evidence supporting the verdict. However,

the appellate courts are not permitted to use such a “divide and

conquer” strategy in evaluating the sufficiency of evidence. Instead the

court must consider the cumulative force of all of the evidence and

where the record supports conflicting inferences, must presume that

the jury resolved those conflicts in favor of the verdict, and then must

defer to that determination. Murray v. State, __S.W.3d__. No. PD-1230-14

(Tx. Cr. App. April 15, 2015), citing Hacker v. State, 389 S.W.3d 860, 873

(Tx. Cr. App. 2013).

      In this case there was evidence that the Appellant picked up the

baseball bat and struck Ms. Johnson in the face “on purpose” from which

the jury could reasonably find that he struck her with the bat

intentionally, knowingly, or recklessly. The Appellant does not contend

that she did not suffer bodily injury from that blow or challenge the

proof of the relationship between them as alleged in the indictment.

The fact that there is conflicting testimony that the blow may have been

somehow struck during the course of a struggle for the bat and that the

victim first picked it up does not mean that the jury could not have


                                   16
rationally and reasonably inferred that the blow was struck with the

requisite culpable mental state. The jury weighed the credibility of the

evidence and reconciled the conflicts in the evidence and presumably

did so in favor of the verdict it rendered. That determination must be

given great deference. The role of the appellate court is restricted to

guarding against the rare occurrence when a fact finder does not act

rationally in its determination. Isassi at 638.       This is not such an

occurrence.

                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000




                                     17
     CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 2,736 words.




                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney



                   CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, Tim Copeland, Counsel for Appellant, by electronic

transfer via Email, addressed to him at ecopeland63@yahoo.com on this

17th day of April, 2015.




                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney




                                    18
