                                                                                        ACCEPTED
                                                                                   14-14-00687-CR
                                                                     FOURTEENTH COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                             1/23/2015 11:05:17 AM
                                                                               CHRISTOPHER PRINE
                                                                                            CLERK

                           No. 14-14-00687-CR
                                  IN THE                            FILED IN
                                                             14th COURT OF APPEALS
                  FOURTENTH COURT OF APPEALS                    HOUSTON, TEXAS
                                                             1/23/2015 11:05:17 AM
                            STATE OF TEXAS                   CHRISTOPHER A. PRINE
                                                                      Clerk
                          ____________________
                 GERALD GERROD DARBY, Appellant
                                     v.
                    THE STATE OF TEXAS, Appellee
                          ____________________
                   On Appeal from the 230th District Court
                            Harris County, Texas
                    Trial Court Cause Number 1384358
                          ____________________
                          APPELLANT’S BRIEF
                          ____________________


                                          Joe David Wells
                                          State Bar No. 90001904
                                          PO Box 2064
                                          Houston, Texas 77252
                                          Tel (281) 410-8778
                                          Fax (832) 201-0467

                                          ATTORNEY FOR APPELLANT


Oral Argument Requested
                 NOTICE OF ALL INTERESETED PARTIES

Pursuant to TEX. R. APP. P. 38.1(a), the following persons are interested parties:


Appellant
Gerald Gerrod Darby

Attorneys for Appellant
Mr. Joe David Wells (on appeal)
P.O. Box 2064
Houston, Texas 77252
(281) 410-8778

Mr. Craig Bundick (at trial)
8123 BoJack Drive
Houston, Texas 77040
(713) 553-1544

Trial Judge
The Honorable Brad Hart
230th District Court
1201 Franklin
Houston, Texas 77002

Attorneys for State
Ms. Danielle Nettles (at trial)
Ms. Lauren Bard (at trial)
Ms. Kristina Daily (at trial)
Mr. Alan Curry (on appeal)
Harris County District Attorney‟s Office
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 755-5800




                                                                                     2
TABLE OF CONTENTS
                                                                                                 Page

Notice of All Interested Parties . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        3

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         4

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Point of Error Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

TRAP 9.4(i)(3) Certificate of Compliance . . . . . . . . . . . . . . . . . 16




                                                                                                        3
                          TABLE OF AUTHORITES

                                                             page


Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App.2010)           12


Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App. 1987)    10


Fisher v. State, 887 S.W.2d 49 (Tex.Crim.App.1994)            13


Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979)      12,13


Johnson v. State, 364 S.W.3d 292 (Tex.Crim.App. 2012)         13


Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977).      10

Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375 (1972)            10


Simmons v. U. S., 390 U.S. 377, 88 S.Ct. 967 (1968)           10




                                                                     4
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:


                         STATEMENT OF THE CASE

      Appellant Gerald Gerrod Darby was charged by indictment with the felony

offense of Burglary of a Habitation with Intent to Commit Theft in the 230th

District Court of Harris County, Texas, the Honorable Brad Hart presiding. (CR

p.11). Appellant‟s charge was enhanced with two prior felony convictions, an

Assault On A Public Servant out of the 336th District Court in Grayson County

from 2009 and a Burglary Of A Habitation out of the 232nd District Court in Harris

County from 2011. (Id). Appellant‟s first trial by jury ended in a mistrial on

February 12, 2014. (CR p.104). On August 13, 2014, appellant was convicted

following a second trial by a jury. (CR p.168). The jury assessed punishment at 62

years confinement in the institutional division of the Texas Department of Criminal

Justice. (Id). Appellant timely filed a notice of appeal. (CR p.171). This Court has

jurisdiction pursuant to Tex. R. App. P. 26.2. Appellant requests oral argument in

this case.




                                                                                   5
                          POINTS OF ERROR PRESENTED

I.     Appellant was denied due process by a suggestive identification.


II.    There was insufficient evidence for the jury to find beyond a reasonable

       doubt that appellant committed the offense of burglary of a habitation with

       intent to commit theft.


III.   There was insufficient evidence for the jury to find beyond a reasonable

       doubt that the enhancement paragraph in the indictment alleging a previous

       felony conviction in Grayson County, Texas is true.




                                                                                 6
                          STATEMENT OF FACTS

      On the morning of April 15, 2013, complaining witness, Alejandro Panjoj-

Moralez, was asleep in his apartment when he was awakened by a loud noise in his

living room. (RR IV p.21-22). When he entered his living room, he saw that two

men had broken into his apartment. (Id). One of the men was wearing a red t-shirt

with a cap on sideways and was standing in front of Mr. Moralez‟s laptop

computer. (RR IV p.23). Mr. Moralez was only able to see the backside of this

man‟s face. (RR IV p.35). His view of this man was brief, lasting only 4 to 7

seconds. (RR IV p.35-36). He was not able to see the other man‟s face because he

was crouching. (RR II p.10). Mr. Moralez then went back into his bedroom and

tried to wake up his brother who was staying with him. (RR IV p.24). When he

returned to his living room, he noticed that the two men were gone, that his front

door was broken and his laptop computer was gone. (Id).


      Deyanira Socorro was babysitting at her apartment across from Mr. Moralez

on the morning of April 15, 2013. (RR V p.9). A man knocked on her apartment

door asking for a person who did not live at that apartment. (RR V p.9-10). Ms.

Socorro looked through the peep hole in her door and told him he was mistaken.

(Id). When she turned around, Ms. Socorro heard a loud noise in the hallway

outside her apartment. (RR V p.10). Ms. Socorro looked through the peep hole

again and saw a different man than the one who knocked on her door running
                                                                                 7
down the hall. (RR V p.10). She did not notice what this man was wearing, only

that he was darker complected than the one who had knocked on her door earlier.

(RR V p.10-11). Ms. Socorro then contacted the apartment management. (RR V

p.11). Ms. Socorro did not see the faces of either man she saw outside her door.

(RR V p.17). She was only able to describe them by skin tone. (RR V p.15).


       The management from the apartment complex arrived and called the police.

(RR IV p.30). It took the police 20 minutes to arrive. (RR IV p.31). Forty to sixty

minutes after telling the police what happened, they returned to Mr. Moralez‟s

apartment with appellant in the backseat of their patrol car. (Id). The police asked

Mr. Moralez to identify the man in the back of the patrol car. (Id). Mr. Moralez

identified the appellant as the man he saw in his apartment. (Id).


       Mr. Moralez testified that appellant was the only person in the patrol car and

the only person shown to him for identification. (RR IV p.32 & 37). Mr. Moralez

did not recall any admonishments being read to him prior to the identification. (RR

II p.7). He was never shown a photo spread with the appellant. (RR II p.13).

According to Mr. Moralez, the police did not tell him he was not obligated to

identify anyone or that the person who burglarized his apartment may or may not

be in the patrol car. (Id).




                                                                                    8
                       SUMMARY OF THE ARGUMENT

      First, appellant was identified through a suggestive show up that denied him

of due process. Second, this suggestive show up identification is the only evidence

supporting appellant‟s conviction.      This identification alone is insufficient to

support a conviction for Burglary of a Habitation. Third, the State failed to prove

the correct county for one of the prior convictions listed in the first enhancement

paragraph of the indictment.       The State‟s failure to prove the enhancement

paragraph as pled is a material variance between the indictment and the proof that

entitles appellant to a new trial as to punishment.




                                                                                   9
                                      ARGUMENT


I.    Appellant was denied due process by a suggestive identification.

      A court will invalidate an in court identification when it follows a pretrial

procedure which was “so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification”. Simmons v. United States,

390 U.S. 377, 384, 88 S.Ct. 967, 971 (1968). It is the likelihood of a

misidentification from a suggestive identification that may violate due process.

Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 382 (1972).                Unnecessary

suggestiveness alone, however, does not automatically require the exclusion of the

out of court identification procedure. Id. The central question is whether, “under

the totality of the circumstances”, the identification was reliable even though the

confrontation procedure was suggestive. Id; see also Manson v. Brathwaite, 432

U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

      “Among the considerations we examine in viewing the totality of the
      circumstances and the likelihood of misidentification are the five
      factors set out in Neil v. Biggers, supra and reaffirmed in Manson v.
      Brathwaite, supra: (1) opportunity of the witness to view the criminal
      at the time of the crime; (2) the witness' degree of attention; (3) the
      accuracy of the witness' prior description of the criminal; (4) the level
      of certainty demonstrated by the witness at the confrontation; (5) and
      the length of time between the crime and the confrontation.”

Cantu v. State, 738 S.W.2d 249, 252 (Tex. Crim. App. 1987).
                                                                                  10
        The totality of the circumstances surrounding appellant‟s identification make

it unreliable. First, the show up identification of appellant was impermissibly

suggestive.    He was presented by himself in the back of a patrol car for

identification by the police. (RR IV p.32 & 37). Appellant was the only person

shown to Mr. Moralez for identification. (Id). He was never shown any photo

arrays from which to pick appellant.         (RR II p.13). Mr. Moralez recalls no

admonishments being read to him prior to his identification of appellant. (RR II

p.7).


        Second, the facts surrounding appellant‟s show up do not support a reliable

identification. Mr. Moralez‟s view of the intruders in his apartment was very

limited. He only saw the backside of one intruder‟s face, the man he claims is the

appellant, for 4 to 7 seconds. (RR IV p.35-36). His attention during this 4 to 7

seconds was affected by his efforts to avoid detection by the intruders in his

apartment. This is reflected in the poor detail given in his description of the

intruders. (RR IV p.23).


        Given these facts surrounding appellant‟s identification and the suggestive

nature of the show up, appellant was denied due process.        The admission of the

show up and the in court identification that followed denied appellant of a fair trial.




                                                                                     11
II.   There was insufficient evidence for the jury to find beyond a reasonable
      doubt that appellant committed the offense of burglary of a habitation
      with intent to commit theft.

      The standard for sufficiency of the evidence in criminal cases was

established by the United States Supreme Court in Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Texas Court of Criminal Appeals

has characterized the Jackson v. Virginia standard as follows: “Considering all of

the evidence in the light most favorable to the verdict, was a jury rationally

justified in finding guilt beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d

893, 899 (Tex.Crim.App. 2010), citing Jackson v. Virginia, 443 U.S. at 319. The

standard set forth in Jackson v. Virginia, “is the only standard that a reviewing

court should apply in determining whether the evidence is sufficient to support

each element of a criminal offense that the State is required to prove beyond a

reasonable doubt.” Brooks at 912.


      Mr. Moralez was the only witness able to identify the appellant.           Mr.

Moralez identification of appellant is tainted by the suggestive nature of the out of

court identification. According to Mr. Moralez, he was shown only the appellant

for identification. (RR IV p.32 &37). Mr. Moralez does not recall any

admonishments from the police prior to his viewing of appellant in the back of the




                                                                                  12
patrol car. (RR II p.7). Appellant was sitting by himself in the back of a patrol car

when he was “picked out”. (RR IV p.32 & 37).


       There is no evidence supporting appellant‟s conviction other than Mr.

Moralez identification. The laptop stolen from Mr. Moralez apartment was not in

the possession of appellant when he was detained and was never recovered. (RR V

p.73). The other man that Mr. Moralez saw in his apartment was never arrested or

identified. The State produced no finger prints, DNA or other forensic evidence

incriminating appellant at trial.

       The only evidence supporting appellant‟s conviction is a suggestive

identification.   This evidence alone is insufficient to support a conviction for

burglary of a habitation beyond a reasonable doubt.


III.   There was insufficient evidence for the jury to find beyond a reasonable
       doubt that the enhancement paragraph in the indictment alleging a
       previous felony conviction in Grayson County, Texas is true.

       The Jackson v. Virginia standard “must be applied to the evidence and to a

correct charge that corresponds to the indictment allegations.” Fisher v. State, 887

S.W.2d 49, 53 (Tex.Crim.App.1994). The verdict comes from the jury‟s

determination of the evidence in light of the instructions and law given in the

charge. Id.   The indictment is directed to the defendant for notice and jurisdiction



                                                                                   13
requirements. Id. It is the charge that convicts. Id. The sufficiency of the evidence

is measured by the charge that was given. Id.


      Variances between the allegations pled in the charging instrument and the

proof at trial can be classified into three categories. Johnson v. State, 364 S.W.3d

292, 298 (Tex. Crim.App 2012). “First, a variance involving statutory language

that defines the offense always renders the evidence legally insufficient to support

the conviction (i.e. such variances are always material).” Id. “Second, a variance

involving a non-statutory allegation that describes an “allowable unit of

prosecution” element of the offense may or may not render evidence legally

insufficient, depending upon whether the variance is material (i.e. such variances

are sometimes material).” Id.      “Finally, other types of variances involving

immaterial non-statutory allegations do not render the evidence legally

insufficient.” Id, 299.


      For non-statutory allegations, some variance between pleading and proof is

tolerated. Id, 295. “We will tolerate little mistakes that do not prejudice the

defendant‟s substantial rights but we will not tolerate a variance that really

amounts to a failure to prove the offense alleged”. Id. The Court of Criminal

Appeals gave the following example to illustrate the type of non-statutory variance

that would not be tolerated:



                                                                                  14
      “For example, in a murder prosecution, the victim‟s name need not be
      proved with exactness, but the State must prove that the victim alleged
      in the indictment is the same person as the victim proved at trial. If
      the State has alleged the murder of „Dangerous Dan‟ but has proved,
      instead, the murder of „Little Neill‟, then the State has proved a
      different murder than it has alleged, and an acquittal is required. Id.

      The State attempted to prove the enhancement allegations by introducing

certified copies of the judgments from appellant‟s prior convictions. (RR VI p.13-

14 and RR VII Ex. 10). The State‟s proof shows a conviction for assault on a

public servant in the 336th District Court in Fannin County, not Grayson County as

alleged in the indictment. (Id). Proof of the correct jurisdiction where an

enhancement offense occurred is a material element. Failure to prove the correct

county for an enhancement paragraph is a material variance between the

indictment and the proof at trial. This material variance renders the evidence of

appellant‟s first enhancement paragraph in the indictment insufficient. As a result,

appellant is entitled to a new trial as to punishment.




                                                                                  15
                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays that this Court

reverse the judgment and sentence in this case and enter an order of acquittal in his

favor or, in the alternative, a remand to the trial court for a new trial.


                                                Respectfully submitted,


                                                /s/ Joe David Wells
                                                Joe David Wells
                                                State Bar No. 90001904
                                                P.O. Box 2064
                                                Houston, Texas 77252
                                                Tel (281) 410-8778
                                                Fax (832) 201-0467

                                                ATTORNEY FOR APPELLANT


                           CERTIFICATE OF SERVICE

      I, Joe David Wells, do certify that a true and correct copy of this Appellant‟s
Brief was delivered to the Harris County District Attorney‟s Office by leaving a
copy with the Clerk of this Court for deposit in the Harris County District
Attorney‟s box.
                                                     /s/ Joe David Wells
                                                     Joe David Wells

              TRAP 9.4(i)(3) CERTIFICATE OF COMPLIANCE
      I, Joe David Wells, do certify that this document complies with Texas Rule
of Appellate Procedure 9.4(i)(3) and has a word count of 3,006 words.


                                                       /s/ Joe David Wells
                                                       Joe David Wells

                                                                                   16
