                                                                                 ACCEPTED
                                                                             03-15-00038-CR
                                                                                     6589626
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        8/20/2015 4:32:04 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK
                           No. 03-15-00038-CR

                                  In the                    FILED IN
                                                     3rd COURT OF APPEALS
                          COURT OF APPEALS               AUSTIN, TEXAS
                                 For the             8/20/2015 4:32:04 PM
                 THIRD SUPREME JUDICIAL DISTRICT JEFFREY D. KYLE
                                at Austin                    Clerk
                 ______________________________________

                   On Appeal from the County Court at Law
                           Burnet County, Texas
                          Cause Number M29921
                 ______________________________________

                   ROY LESLIE CRAYTON, Appellant
                                   v.
                    THE STATE OF TEXAS, Appellee
                 _____________________________________

                            STATE’S BRIEF
                 _____________________________________


Counsel for Appellee                   KRISTEN JERNIGAN
The State of Texas                     Attorney Pro Tem
                                       Burnet County, Texas
                                       207 S. Austin Ave.
                                       Georgetown, Texas 78626
                                       (512) 904-0123
                                       (512) 931-3650 (fax)
                                       Kristen@txcrimapp.com



                  ORAL ARGUMENT NOT REQUESTED
                         IDENTIFICATION OF PARTIES

      Pursuant to Texas Rule of Appellate Procedure 38.1, a complete list of the
names of all interested parties is provided below so the members of this Honorable
Court may at once determine whether they are disqualified to serve or should
recuse themselves from participating in the decision of this case.

Appellant:

Roy Leslie Crayton

Counsel for Appellant:

Revis G. Kanak (at trial)
Office of the Public Defender
1008 Water Street
Burnet, Texas 78611

Gary E. Prust (on appeal)
1607 Nueces Street
Austin, Texas 78701

Counsel for Appellee, The State of Texas:

Cody Henson (at trial)
Attorney Pro Tem
205 S. Pierce Street
Burnet, Texas 78611

Kristen Jernigan (on appeal)
Attorney Pro Tem
207 S. Austin Ave.
Georgetown, Texas 78626

Trial Court Judge:

The Honorable Randy Savage


                                        ii
                                     TABLE OF CONTENTS



IDENTIFICATION OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .iv

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . v

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

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT & AUTHORITIES                         ....................................9

        I.      Appellant’s sole point of error should be overruled because the
                evidence is legally sufficient to support the jury's verdict of
                guilt.

PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

CERTIFICATE OF WORD COUNT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13




                                                     iii
                                      INDEX OF AUTHORITIES

CASES


Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . .6, 7, 11

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . .7, 11

In re J.A.G., No. 03-05-00004-CV (Tex. App.—Austin, delivered April 28, 2006)
              (not designated for publication) . . . . . . . . . . . . . . . . . . . . . . . . . .10, 11

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 11

Jackson v. State, 287 S.W.3d 346 (Tex. App.—Houston [14th Dist.] 2009) . . . 9, 10

Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . .7, 11


STATUTES AND RULES


TEX. PENAL CODE § 42.062(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEX. R. APP. P. 38.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TEX. R. APP. P. 39.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v




                                                           iv
             STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 39.1, and Appellant’s

statement that he does not request oral argument, the State does not request oral

argument.




                                       v
                              No. 03-15-00038-CR

                                  In the
                          COURT OF APPEALS
                                 For the
                 THIRD SUPREME JUDICIAL DISTRICT
                                at Austin
                 ______________________________________

                   On Appeal from the County Court at Law
                           Burnet County, Texas
                          Cause Number M29921
                 ______________________________________

                    ROY LESLIE CRAYTON, Appellant
                                    v.
                     THE STATE OF TEXAS, Appellee
                  _____________________________________

                             STATE’S BRIEF
                  _____________________________________


                          STATEMENT OF THE CASE

      Appellant was charged by information with the offense of interference with

an emergency call.   (CR: 4-5); (RR3: 4).   On October 13, 2014, a jury convicted

Appellant of that offense.   (RR2: 285).    The State and Appellant entered an

agreement as to Appellant’s punishment.         (RR3: 4-5).    Pursuant to that

agreement, Appellant was sentenced to twelve months’ confinement in the Burnet

County Jail, probated for fifteen months and a $4,000.00 fine, which was also

probated.   (RR3: 4-5).   Appellant filed a Motion for New Trail on October 28,

                                        1
2014.      (CR: 39).     The motion was overruled by operation of law seventy-five

days later on December 27, 2014.          Appellant then timely filed Notice of Appeal

on January 13, 2014.       (CR: 40).    This appeal results.

                               STATEMENT OF FACTS

        At trial, Officer Robert Paul Chrane of the Granite Shoals Police

Department testified that on May 23, 2013, he was on patrol and was dispatched to

a home located at 331 Sweetbriar in Burnet County regarding a landlord/tenant

dispute.     (RR2: 101).       Officer Chrane answered some questions about the

eviction process and then left.        (RR2: 103-04).    Approximately one hour later,

Officer Chrane was again dispatched to the home located at 331 Sweetbriar and

when he arrived this second time, Appellant walked out of the home and reported

he had been threatened by William Martin, an occupant of the home.              (RR2:

105-06).     Appellant stated that he and Martin had a verbal altercation and that

Martin had exhibited a knife, but Appellant’s version of events changed as he

repeated his story.       (RR2: 106-07).     Appellant said that he and Martin were

fighting over a violation of contract rules signed in order to live at the home.

(RR2: 110-11).         After speaking with Appellant, Officer Chrane spoke to Martin

who was upset.     (RR2: 108).




                                              2
      On cross-examination, Officer Chrane explained that the home located at

331 Sweetbriar was known as the Living Word Ministry Men’s Restoration Home

and its occupants signed an agreement to live there.    (RR2: 115).         The home

housed people who did not have funds to provide their own shelter.    (RR2: 116).

      William Martin testified that in May of 2013, he was living at the Men’s

Restoration House for the Living Word Ministry.    (RR2: 154).     Martin informed

the jury that the Restoration House was a place where people could live to

overcome drug addiction and to “get yourself straightened out.”        (RR2: 155).

On the morning of May 23, 2013, Martin had a verbal altercation with Appellant

over the phone about food stamps and Martin smoking in the home.       (RR2: 165).

Appellant and Martin had an agreement whereby Appellant would use Martin’s

food stamp card to purchase things for Appellant, the Restoration Home and the

Living Ministry Church where Appellant was the pastor.             (RR2: 167-69).

However, the agreement made Martin “madder than a hornet,” presumably because

he felt he was being taken advantage of.     (RR2: 169).      Appellant and Martin

argued often and Appellant threatened to evict Appellant.     (RR2: 170).    On May

23, 2013, Martin called the police to inquire as to whether Appellant had the

authority to evict him.   (RR2: 171).   Officer Chrane responded and gave Martin

some information about his tenant rights.    (RR2: 171-72).     Officer Chrane then


                                         3
left.   (RR2: 172).    Some time later in the day, Appellant arrived at the home to

find Martin smoking which made Appellant upset.        (RR2: 174).   Appellant used

his “belly” to push Martin around the home in an attempt to get Martin to hit

Appellant so he could evict him from the home.         (RR2: 174-75).    Appellant’s

conduct escalated and Martin felt he was being assaulted so he ran out to the living

room to call the police.    (RR2: 177).   Appellant knew Martin was trying to call

the police because Martin told him as much when he ran to the living room.

(RR2: 178).      When Martin attempted to call 911, Appellant pulled the phone out

of Martin’s hand, ripped the phone from the wall, and said, “You’re not using my

phone to call the cops.”    (RR2: 179).   Appellant then took the phone and put it in

his van.    (RR2: 179).    Martin stated that he never threatened Appellant with a

knife and that had Appellant not pulled the phone from the wall, he (Martin) would

have called the police.    (RR2: 182).

        On cross-examination, Martin stated that he was not “that concerned” during

the altercation because he is not concerned about anybody.      (RR2: 184).   Martin

clarified by stating, “I’m not concerned about the gentleman sitting here with a gun

[the bailiff].   He shoots me, I die, it’s over.”     (RR2: 184).    After Martin’s

testimony concluded, the State rested its case in chief.   (RR2: 199).




                                          4
      Appellant took the stand and denied Martin’s allegations.      (RR2: 207-08,

210, 217, 220).       On cross-examination, Appellant stated that he ran the

Restoration Home for approximately a year and a half, but had to shut it down

because the police would not allow him to have water at the home.              (RR2:

227-28).   Appellant continued that he was told by the Water Department that the

Police were preventing him from getting water because the home “was under

investigation.”   (RR2: 228).   With respect to the offense in this case, Appellant

maintained that despite Officer Chrane’s sworn testimony, the police never took a

statement from him and would not talk to him.      (RR2: 231-32).    Appellant then

stated several times that he did not take food stamp benefits or any other earnings

from the residents of the Restoration Home.           (RR2: 231-36).      However,

Appellant was shown a document tiled “System of Management” for the Living

Word Ministry, that he helped create, which required the residents of the

Restoration Home to “give any finances and assistance to the house leader for fair

distribution.   Food Stamps, food donations, et. cetera.”   (RR2: 237, 242).   Also,

despite his testimony that the residents were not required to give ten percent of

their income to the home, Martin acknowledged that the “System of Management”

agreement required residents to sign an statement that read, “I must give ten

percent to church for tithes per paycheck.”    (RR2: 248).    Although he testified


                                          5
on direct examination that he never asked Martin to leave the home, Appellant was

forced to admit that he filed an eviction action against Martin on May 23, 2013, the

same day of the offense in this case.     (RR2: 246-47).        Appellant was also forced

to admit that when he called the police on May 23, 2013, he called from his cell

phone and not the house phone in the living room.            (RR2: 250).   At the close of

Appellant’s testimony, the defense rested its case in chief.       (RR2: 258).

                        SUMMARY OF THE ARGUMENT

      Appellant’s sole point of error should be overruled because the evidence is

legally sufficient to support the jury’s verdict of guilt.

                       ARGUMENT AND AUTHORITIES

      In his sole point of error, Appellant claims the evidence is insufficient to

support his conviction because the evidence showed the complainant was not in

fear of an imminent assault and because no reasonable person would have been

afraid of an imminent assault.        See Appellant’s Brief at 10.         The Court of

Criminal Appeals has held that the legal sufficiency standard set out in Jackson v.

Virginia, 443 U.S. 307, 320 (1979), is the only standard that a reviewing court

should apply when determining the sufficiency of the evidence. Brooks v. State,

323 S.W.3d 893, 896 (Tex. Crim. App. 2010).                   When reviewing the legal

sufficiency of the evidence, an appellate court views the evidence in the light most


                                            6
favorable to the verdict and determines whether any rational trier of fact could

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

Jackson, 443 U.S. at 320; Brooks, 323 S.W.3d at 896.      “Viewing the evidence ‘in

the light most favorable to the verdict’ under a legal-sufficiency standard means

that the reviewing court is required to defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and

the weight to be given their testimony.”   Brooks, 323 S.W.3d at 899.

      “Under federal and Texas law, juries trump both trial and appellate judges

on weight-of-evidence determinations.”         Evans v. State, 202 S.W.3d 158, 164

(Tex. Crim. App. 2006), citing Jackson, 443 U.S. at 326 (“When the court is faced

with a record of historical facts that supports conflicting inferences, it must

presume-even if it does not affirmatively appear in the record-that the trier of fact

resolved any such conflicts in favor of the prosecution”).     Moreover, unless the

available record clearly reveals a different result is appropriate, an Appellate Court

must defer to the jury’s determination concerning what weight to give

contradictory testimonial evidence because resolution often turns on an evaluation

of credibility and demeanor, and the jurors were in attendance when the testimony

was delivered.   Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).




                                           7
      In order to convict Appellant of the offense of interference with an

emergency call, the State was required to prove beyond a reasonable doubt that

Appellant knowingly prevented or interfered with Martin’s ability to place an

emergency call or to request assistance, including a request for assistance using an

electronic communications device, in an emergency from a law enforcement

agency, medical facility, or other agency or entity the primary purpose of which is

to provide for the safety of individuals.        TEX. PENAL CODE § 42.062(a).

“Emergency” means “a condition or circumstance in which any individual is or is

reasonably believed by the individual making a call or requesting assistance to be

in fear of imminent assault or in which property is or is reasonably believed by the

individual making the call or requesting assistance to be in imminent danger of

damage or destruction.”   TEX. PENAL CODE § 42.062(c).

      In this case, the jury heard evidence that on May 23, 2013, Appellant

confronted Martin about violating the rules of the Restoration Home and that

during the confrontation, Appellant assaulted Martin by bumping him with his

belly and by forcing Martin through the home, finally cornering him in a bedroom.

When Appellant ran to the living room to call the police, Appellant knew what

Martin was attempting to do because Martin told him as much when he ran to the

living room.   In fact, when Martin attempted to call 911, Appellant pulled the


                                         8
phone out of Martin’s hand, ripped the phone from the wall, and said, “You’re not

using my phone to call the cops.”     Appellant then took the phone and put it in his

van.   Thus, the evidence in this case shows that Appellant undoubtedly interfered

with an emergency call and that an actual assault had been committed, and not just

the fear of an imminent assault.

       Appellant cites Jackson v. State, 287 S.W.3d 346 (Tex. App.—Houston [14th

Dist.] 2009), and states:

       In Jackson v. State, the complaining witness told the police that
       Jackson slapped the phone away from her hand while she was dialing
       9-1-1 and was crying when the officers arrived. 287 S.W.3d 346, 349
       (Tex.App – Houston [14th Dist.] 2009, no pet.). Law enforcement
       responded to the 9-1-1 hang up call. Id. She dialed 9-1-1 again, before
       law enforcement’s arrival. Id. She also testified Jackson told her that
       if she called the police, he would “giver [her] something to call the
       cops for”, that he jumped on top of her and knocked the phone from
       her hand after yelling at her when she first called 9-1-1.” Id. She
       stated she thought Jackson was going to hurt her. Id.

       Presumably, Appellant cites Jackson to distinguish the facts of that case

from the facts of the present case.    However, in Jackson, the Court of Appeals

explicitly upheld the charge of interference of an emergency call, in the face of a

challenge to the sufficiency of the evidence that no evidence of imminent assault

existed, based on the vicitm’s first attempt at calling 911 where the defendant

assaulted the victim prior to the attempted call, the defendant slapped the phone

out of the victim’s hand before she could complete the call, and the victim left her

                                          9
home to get away from the defendant.            Jackson, 287 S.W.3d at 350-52.     The

same facts occurred in the instant case. Specifically, Appellant assaulted Martin

and when Martin tried to call 911, Appellant grabbed the phone from his hand,

pulled the phone from the wall, and Martin left the home to get away from

Appellant.

       Appellant next argues that because Martin stated he was not “that

concerned” during the offense in this case, the evidence is insufficient to show

Martin was in fear of an imminent assault.         To be fair, what Martin stated was

that he was not concerned because he was not concerned about anybody.               He

stated further, “I’m not concerned about the gentleman sitting here with a gun [the

bailiff].   He shoots me, I die, it’s over.”    Martin’s reference clearly included the

possibility of death, and indicated his apparent indifference regarding that

possibility.   That does not negate the fact that Appellant in fact assaulted Martin

and that a reasonable person would have feared an imminent assault.

       For example, in In re J.A.G., also cited by Appellant, the defendant’s

grandmother, and victim of the offense, testified that she was not in fear of her

grandson when he interfered with her ability to make an emergency call.          In re

J.A.G., No. 03-05-00004-CV (Tex. App.—Austin, delivered April 28, 2006) (not

designated for publication).     However, the Court of Appeals held that based on


                                           10
the facts of the case, a rational trier of fact could have found the victim was in fear

of imminent assault, or that a reasonable person would have been in fear of

imminent assault, despite her testimony.    Id.

      As discussed above, where there is conflicting testimony, this Court must

presume, even if it does not affirmatively appear in the record, that the trier of fact

resolved any such conflicts in favor of the State where the jury has rendered a

guilty verdict.   Evans, 202 S.W.3d at 164.          This is so because the jury’s

determination concerning what weight to give contradictory testimonial evidence,

including an evaluation of credibility and demeanor, is based on the jurors’ ability

to consider the testimony when it was delivered.     Johnson, 23 S.W.3d at 8.

      In this case, the jury heard Appellant give conflicting testimony and

witnessed him getting caught in several untruths.         The jury also considered

Martin’s testimony and, by its verdict, believed his version of events.     Therefore,

the evidence is legally sufficient to support Appellant’s conviction.     See Jackson,

443 U.S. at 320; Brooks, 323 S.W.3d at 896.       Accordingly, Appellant’s sole point

of error should be overruled.




                                           11
                                      PRAYER

               WHEREFORE,           PREMISES        CONSIDERED,          the   State

respectfully requests that this Court affirm the judgment and sentence of the trial

court.

                                               Respectfully submitted,


                                               ___/s/ Kristen Jernigan____________
                                               KRISTEN JERNIGAN
                                               Attorney Pro Tem
                                               State Bar Number 90001898
                                               207 S. Austin Ave.
                                               Georgetown, Texas 78626
                                               (512) 904-0123
                                               (512) 931-3650 (fax)
                                               Kristen@txcrimapp.com



                           CERTIFICATE OF SERVICE

         This is to certify that a true and correct copy of the foregoing Appellee’s

brief has been emailed to the attorney of record for Appellant, Gary E. Prust, 1607

Nueces, Austin, Texas 78701, on August 20, 2015.



                                               ______/s/ Kristen Jernigan_________
                                               Kristen Jernigan




                                          12
                    CERTIFICATE OF WORD COUNT

      The undersigned hereby certifies that the foregoing document consists of

3,606 words in compliance with Texas Rule of Appellate Procedure 9.4.


                                    ______/s/ Kristen Jernigan______________
                                    Kristen Jernigan




                                      13
