                                                                           ACCEPTED
                                                                      07-16-00452-CR
                                                         SEVENTH COURT OF APPEALS
                                                                   AMARILLO, TEXAS
                                                                    7/6/2017 10:30 AM
                                                                     Vivian Long, Clerk


         NO. 07-16-00452-CR

                In the
                                          FILED IN
        COURT OF APPEALS           7th COURT OF APPEALS
               For the               AMARILLO, TEXAS
SEVENTH JUDICIAL DISTRICT OF TEXAS 7/6/2017 10:30:54 AM
             At Amarillo                VIVIAN LONG
         _________________                 CLERK

                No. 2894
              th
    In the 287 Judicial District Court
         Of Bailey County, Texas
          Count III – Retaliation
            _______________

   JOSEPH ALARCON GONZALEZ
            Appellant

                    v.

       THE STATE OF TEXAS
             Appellee
         _______________

      BRIEF OF THE APPELLANT
          _______________


                     TINA DAVIS RINCONES
                     Law Office of Tina Davis Rincones
                     109 E 6th Street
                     Plainview, Texas 79072
                     Telephone (806) 429-0706
                     Facsimile (806) 553-4424
                     SBN 24030776

                     ATTORNEY FOR APPELLANT

                     ORAL ARGUMENT NOT REQUESTED
                                             TABLE OF CONTENTS
                                          [Rule 38.1(b), Tex. R. App. Proc.]


RECORD REFERENCES .............................................................................................. iv
PARTY REFERENCES .................................................................................................. iv
INDEX OF AUTHORITIES............................................................................................... v
STATEMENT REGARDING ORAL ARGUMENT ................................................... vi
STATEMENT OF THE CASE ......................................................................................... i
ISSUES PRESENTED ...................................................................................................... 3
1. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS
RIGHT TO CONFRONT THE WITNESS AGAINST HIM. ...................................... 3
2. THE TRIAL COURT ERRED BY FAILING TO ADMIT EVIDENCE IN
OPPOSITION TO THE RULE OF OPTIONAL COMPLETENESS. ....................... 3
3. THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION IN THIS
CASE. ................................................................................................................................ 3
STATEMENT OF FACTS ............................................................................................... 4
ARGUMENT ..................................................................................................................... 7
1. THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS
RIGHT TO CONFRONT THE WITNESS AGAINST HIM. ...................................... 7
   a. Standard of Review ................................................................................................ 7
   b.     The Law, Generally ............................................................................................... 8
   c.     The Application of the Law to the Facts .............................................................. 10
2. THE TRIAL COURT ERRED BY FAILING TO ADMIT EVIDENCE IN
OPPOSITION TO THE RULE OF OPTIONAL COMPLETENESS. ..................... 10
   a.     Standard of Review ............................................................................................... 10
   b.     The Law, Generally ............................................................................................... 11
   c.     The Application of the Law to the Fact ............................................................ 12
3. THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION IN THIS
CASE. .............................................................................................................................. 13
   a.     Standard of Review ............................................................................................... 13
   b.     The Law ................................................................................................................. 13
   c.     The Application of the Law to the Facts .............................................................. 14
CONCLUSION ............................................................................................................... 14
CERTIFICATE OF SERVICE ................................................................................... 15
CERTIFICATE OF WORD COUNT ........................................................................... 15



                                                                   ii
                      IDENTITY OF PARTIES AND COUNSEL
                          [Rule 38.1(a), Tex. R. App. Proc.]

       The following is a complete list of all parties to the trial court’s judgment or

appealable order, as well as the names and addresses of trial and appellate counsel.


Joseph Alarcon Gonzalez, Appellant                The State of Texas, Appellee

FOR THE APPELLANT:                                FOR THE STATE OF TEXAS:

Counsel for Trial by Judge:                       Counsel for Trial by Judge:

James M. Moore                                    Kathryn H. Gurley
Law Office of James M. Moore, P.C.                287th Judicial District Attorney
1705 Avenue K                                     PO Box 729
Lubbock, Texas 79401                              Friona, Texas 79035
Phone: 806-747-7373                               Phone: 806-250-2050
Fax: 806-747-6031                                 Fax 806-250-8051
SBN: 24065783                                     SBN: 10022700

Counsel for Appeal:                               Counsel for Appeal:

Tina Davis Rincones                               Kathryn H. Gurley
Attorney at Law                                   287th Judicial District Attorney
109 E 6th Street                                  PO Box 729
Plainview, Texas 79072                            Friona, Texas 79035
Tel: (806) 429-0706                               Tel: (806) 250-2050
Fax: (806) 553-4424                               Fax: (806) 250-8051
SBN: 24030776                                     SBN: 10022700




                                            iii
                               RECORD REFERENCES

        The Clerk’s Record in this case contains one original volume and is referenced in

this brief as “CR.”

        In this brief references to the Reporter’s Record will be made by the abbreviation

“RR” followed by the volume, page and line.

                                PARTY REFERENCES

        The Appellant is Joseph Alarcon Gonzalez and shall be referred to as “Gonzalez”

or “Appellant.” The State will be referred to as the “State” or “Appellee.”




                                            iv
                                              INDEX OF AUTHORITIES

Cases
Bezerra v. State, 485 S.W.3d 133, 143 (Tex. App. – Amarillo 2016) ............................... 11
Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) ......................................... 13
Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ....... 8
Davis v. Alaska, 415 U.S. 308 (1974) .............................................................................. 8
Davis v. State, 169 S.W.3d 660, 665 (Tex. App. Austin 2005, no. pet.). ..................... 7
De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) ............................... 8
Flanagan v. State, 675 S.W.2d 734, 746 (Tex. Crim. App. 1984) ................................... 13
Galliford v. State, 101 S.W.3d 600, 604 (Tex. App. Houston [1st Dist.] 2003, pet.
   ref.). ................................................................................................................................ 7
Herrera v. State, 915 S.W.2d 94, 98 (Tex. App.- San Antonio 1996, no pet.)................. 13
In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.--Fort Worth 2002, no pet. ........................ 13
Jackson v. Virginia, 433 U.S. 307, 319 (1979) ................................................................. 13
Lagunas v. State, 187 S.W.3d 503, 513 (Tex. App. Austin 2005, no. pet.) .................. 7
Lilly v. Virginia, 527 U.S. 116, 137 (1999) ..................................................................... 7
Kelly v. State, 321 S. W. 3d 583 (Tex. App. Houston [14]-2010 -no pet.) ........................ 12
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)...................................... 7
Pena v. State, 353 S. W. 3d 797 (Tex. Crim. App. 2011) ................................................. 12
Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App. 2001) ......................................... 13
Sauceda v. State, 129 S.W.3d 116, 123 (Tex.Crim.App.2004) ......................................... 11
See Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). ............................... 7
United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004) ......................................... 8
United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005) ............................................ 7
Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006) ........................................ 7
Walters v. State, 247 S. W. 3d 204 (Tex. Crim. App. 2007) ............................................. 11
Statutes
TEX. PENAL CODE ANN. § 6.01(a) (Vernon 2016) ............................................................ 16
TEXAS RULES OF EVIDENCE, R. 1071(Vernon 2016) ......................................................... 12
TEXAS RULE OF EVIDENCE, Rule 401 (Vernon 2016) ........................................................ 13




                                                                     v
STATEMENT REGARDING ORAL ARGUMENT

Appellant does not request oral argument in this case.




                          vi
                             STATEMENT OF THE CASE

       Appellant was indicted in the instant case an August 5, 2015 in a three count

indictment charging him in Count III with the offense of Retaliation a third degree felony;

the subject of this appeal. (CR Vol. 1, P. 9-10). A pretrial hearing was held on November

2, 2016; the trial before a jury began on November 15, 2016 through November 17, 2016.

The jury found Appellant guilty of Count III. (CR Vol. 2, P. 15). Punishment was assessed

by the jury at 7 years in the Texas Department of Criminal Justice; a $1,000.00 fine was

assessed. (CR Vol. 2, P. 21). A Motion for New Trial was filed by trial counsel before the

Judgment was prepared and entered (CR Vol. 2, P. 28-30). The Court entered judgment

on the Jury’s Verdict. (CR Vol. 2, P. 34-35). A subsequent Motion for New Trial was

filed by counsel for the appeal. (CR Vol. 2, P. 47-50). A Notice of Appeal was filed after

the verdict was rendered by the Jury and the Court, on the docket sheet (CR Vol. 2, P. 7);

in the reporter’s record accepted the verdict and rendered judgment (RR Vol. 6, P. 75, L.

19-25 through RR Vol. 6, P. 76, L. 1-18); this appeal ensued. (CR Vol. 2, P. 27).




                                            vii
                                   NO. 07-16-00452-CR

                                      In the
                              COURT OF APPEALS
                                     For the
                      SEVENTH JUDICIAL DISTRICT OF TEXAS
                                   At Amarillo
                               _________________

                                          No. 2894
                             In the 287th Judicial District Court
                                  Of Bailey County, Texas
                                   Count III – Retaliation

                                     _______________

                           JOSEPH ALARCON GONZALEZ
                                    Appellant

                                              v.

                                 THE STATE OF TEXAS
                                       Appellee
                                   _______________

                               BRIEF OF THE APPELLANT
                                   _______________


TO THE HONORABLE COURT OF APPEALS FOR THE SEVENTH DISTRICT:

       COMES NOW JOSEPH ALARCON GONZALEZ, Appellant herein in cause

number 07-16-00452-CR before the Court of Appeals for the Seventh District, Amarillo,

Texas by and through his attorney of record, files this Brief of the Appellant, and in support

thereof would respectfully show this Honorable Court the following:




                                              2
                      ISSUES PRESENTED

1.   THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS

     RIGHT TO CONFRONT THE WITNESS AGAINST HIM.

2.   THE TRIAL COURT ERRED BY FAILING TO ADMIT EVIDENCE IN

     OPPOSITION TO THE RULE OF OPTIONAL COMPLETENESS.

3.   THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION IN THIS

     CASE.




                              3
                                 STATEMENT OF FACTS

       On the morning of May 15, 2015 two room-mates woke up in Muleshoe, Bailey

County, Texas. (RR Vol. 5, P. 37, L. 4-8). The primary room-mate, Appellant, also had his

young son in his possession that morning. (RR Vol. 5, P. 37, L. 14-15). Appellant prepared

his young son for a trip across the street to stay with the young child’s grandmother while

Appellant went to work for the day. (RR Vol. 5, P. 38, L. 2-3). The secondary room-mate,

Victim, remained at the residence. Victim says he and Appellant had a passing conversation

the details of which conflict in each of their memories; Appellant did not relay the same

conversation and the State did not corroborate this conversation as propounded by Victim.

(RR Vol. 5, P. 38, L. 4-9). Victim admits that he smokes a “bowl” of “meth” while Appellant

was dropping off the child across the street. (RR Vol. 5, P. 38, L. 13-18). Appellant comes

back from his brief absences from the residence in question and notices Victim’s van is re-

parked in an awkward manner and doors in the house wide open. (RR Vol. 5, P. 120, L. 7-

9). Appellant comes back and finds Victim in an agitated state, “zooming” and notices a

smell of burnt chemical. (RR Vol. 5, P. 120, L. 20-22) and (RR Vol. 5, P. 121, L. 3-4). It is

undisputed that the Victim was doing his laundry and putting it away in a bedroom in the

residence when Appellant and he next converse. (RR Vol. 5, P. 121, L. 11) and (RR Vol. 5,

P. 39, L. 19-20). Overnight, sometime on May 14, 2015 or May 15, 2015 a shotgun has

arrived at the residence at the hands of Victim. (RR Vol. 5, P. 42, L. 2-5). Appellant goes to

the bedroom sees Victim putting away his laundry and sees the shotgun. (RR Vol. 5, P. 123,

L. 5-8). This causes Appellant great alarm and he picks up the firearm to take it from the

residence. (RR Vol. 5, P. 124, L. 13-18). Appellant jostles the weapon by some unknown

means, perhaps by hitting a door jam and the weapon fires and shoots Victim in his leg. (RR


                                              4
Vol. 5, P. 126, L. 24-25) and (RR Vol. 5, P. 137, L. 2-8). Victim is wounded; Appellant calls

911; emergency personnel arrive; Victim is saved and survives. During the 911 call Appellant

says something that the jury in this matter requested replayed multiple times because it was

inaudible due to static. (RR Vol. 5, P. 201, L. 24 through P. 203, L. 3). When EMS arrives

the Victim states to EMT Robin Claborn “he popped me” with no mention of a threat. (RR

Vol. 4, P. 35, L. 13-23). After the shot but before the 911 call Victim testifies that Appellant

and he exchanged words. (RR Vol. 46, L. 10-15). Appellant said he was being threatened

and felt threatened so he did return a threat against Victim. (RR Vol. 5, P. 129, L. 5-14). The

State alleged the Appellant “threatened to harm another, to-wit: Aaron Chavez by an unlawful

act, to-wit: by “finishing him off”. (CR Vol. 1, P. 9). However, there is no evidence that the

threat was retaliation and not what the Appellant testified a threat to keep harm from himself

[Appellant]. (RR Vol. 5, P. 129, L. 5-14).

        At trial the State protested all attempts by defense counsel to adequately cross examine

the victim on his proclivity for the use of mind altering substances, and his extensive criminal

history. The Court agreed with the State and the Appellant was denied effective cross

examination/confrontation of the witness against him. (See generally, RR Vol. 5, P. 35-85).

        At trial the State was also allowed to admit incomplete audio/video recordings over

the objection of defense counsel. Defense counsel made bill of exception/review and admitted

the complete recordings for consideration by this honorable Court. (See RR Vol. 4, P. 99-

103).

        The jury rejected and acquitted Appellant on the aggravated assault count; found the

Appellant guilty of possession of a firearm by a felon and guilty of felony retaliation. This

appeal followed.



                                               5
                              SUMMARY OF ARGUMENT


        The Appellant was denied his constitutional right to confront the witness against him

when the Court denied defense counsel’s attempts to cross examine the victim on his

criminal history which bears on his credibility and his use of mind altering substances which

affect his memory.

        The Appellant was denied a fair trial and due process of law when the Court refused

to admit a complete audio/video recording and instead only admitted the State’s version of

the audio/video recording over the objection of defense counsel citing the “optional rule of

completeness.”

        There was legally insufficient evidence to convict Appellant of the offense of

retaliation.




                                              6
                                      ARGUMENT

1.     THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT HIS

RIGHT TO CONFRONT THE WITNESS AGAINST HIM.

 a.    Standard of Review

       Generally, a trial court's ruling on the admissibility of evidence is reviewed for an

 abuse of discretion. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

 An abuse of discretion occurs when the trial court acts without reference to guiding rules

 or principles or acts arbitrarily or unreasonably. Galliford v. State, 101 S.W.3d 600, 604

 (Tex. App. Houston [1st Dist.] 2003, pet. ref.). Reviewing courts will affirm the trial

 court's ruling if it lies within the zone of reasonable disagreement. See Torres v. State,

 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

       However, this Court should review de novo the constitutional legal ruling of

 whether the Appellant was denied his right to confront the witness against him, in this

 case the Victim. See Lilly v. Virginia, 527 U.S. 116, 137 (1999) (When reviewing the

 admissibility of out-of-court statements [or in this case statements about drug use to

 law enforcement and medical personnel] over a Confrontation Clause objection,

 reviewing courts should independently review whether the evidence “satisfies the

 demands of the Constitution.”); Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App.

 2006); See also United States v. Rondeau, 430 F.3d 44, 47 (1st Cir. 2005) (Crawford

 issues are reviewed under de novo standard); United States v. Delgado, 401 F.3d 290,

 299 (5th Cir. 2005); Lagunas v. State, 187 S.W.3d 503, 513 (Tex. App. Austin 2005,

 no. pet.); Davis v. State, 169 S.W.3d 660, 665 (Tex. App. Austin 2005, no. pet.). The

 reason for the de novo standard of review is because the legal ruling of whether a


                                             7
statement is testimonial under Crawford “is determined by the standard of an objectively

reasonable declarant standing in the shoes of the actual declarant.” Crawford v.

Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).; De La Paz v. State,

273 S.W.3d 671, 680 (Tex. Crim. App. 2008) (Whether a statement is testimonial under

the Confrontation Clause is a question of law); United States v. Cromer, 389 F.3d 662,

675 (6th Cir. 2004) (The inquiry under a Confrontation Clause objection to hearsay is

“whether a reasonable person in the declarant's position would anticipate his statement

being used against the accused in investigating and prosecuting the crime.”).            In

Crawford the United States Supreme Court explained that the Confrontation Clause was

based on the English common law tradition of “live testimony in court subject to

adversarial testing.” Crawford, 541 U.S. at 43). The Court noted that this tradition was

in contrast to the European civil law that “condoned[d] examination in private by

judicial officers.” Id.

      Crawford rejected the Roberts analysis, holding that although the ultimate goal of

the confrontation clause is to ensure reliability of evidence, “it is a procedural rather

than a substantive guarantee.” Crawford, 541 U.S. at 61. The Opinion states: The

confrontation clause “commands, not that the evidence be reliable, but that reliability be

assessed in a particular manner: by testing in the crucible of cross-examination.” Id.

b.    The Law, Generally

      The Court explained that the Confrontation Clause provides a procedural

guarantee: “It commands, not that evidence be reliable, but that reliability be assessed

in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541

U.S. at 61. In Davis v. Alaska, 415 U.S. 308 (1974) the Supreme Court explained that

the accused's right to be confronted with the witnesses against him is more than being
                                           8
allowed to confront the witnesses physically. The primary interest secured by

confrontation is the right of cross- examination. The Supreme Court stated,

      “Cross-examination is the principal means by which the believability of a witness

      and the truth of his testimony are tested. Subject always to the broad discretion of

      the trial judge to preclude repetitive and unduly harassing interrogation, the cross-

      examiner is not only permitted to delve into the witness' story to test the witness'

      perceptions and memory, but the cross-examiner has traditionally been allowed to

      impeach, i.e., discredit the witness... [T]he exposure of a witness' motivation in

      testifying is a proper and important function of the constitutionality protected right

      of cross examination. Davis, 415 U.S. at 316.

      Thus the prior opportunity to cross-examine required by Crawford must serve that

same function.

      The new Crawford rule, by its position, applies only to testimonial evidence.

Specifically, the Court clarified that the confrontation clause applies to those who “bear

testimony” against the accused.” Crawford, 541 U.S. at 51. “Testimony,” it continued,

is “[a] solemn declaration or affirmation made for the purpose of establishing or proving

some fact.” Id. (quotation omitted). The Court identified three kinds of statements that

could be regarded as testimonial:

      (1) “ex parte in-court testimony or its functional equivalent - that is, material such

as affidavits, custodial examinations, prior testimony that the defendant was unable to

cross-examine, or similar pretrial statements that declarants would reasonably expect to

be used prosecutorial[ly]”;

      2) “extrajudicial statements... contained in formalized testimonial materials, such

as affidavits, depositions, prior testimony, or confessions”; and
                                            9
       3) “statements that were made under circumstances which would lead an objective

 witness reasonably to believe that the statement would be available for use at a later

 trial.” Id. At 51-52.

 c.    The Application of the Law to the Facts

       The Court in this case at every turn refused defense counsel the opportunity to cross

examine law enforcement and medical professionals regarding admissions by the Victim of

his drug use including but not limited to the frequency, kind and consistent nature of the use.

Further, the Court refused to allow defense counsel to fully cross-examine the Victim

regarding his “clubbing” the night before the events in question. (RR Vol. 5, P. 80, L. 10

through P. 82, L. 13). The Court consistently denied defense counsel the right to elicit

testimony from medical professionals regarding the statements made by the Victim in the

course of his treatment. (RR Vol. 5, P. 93, L. 23 through P. 97, L. 11) and (RR Vol. 5, P. 99,

L. 16 through P. 100, L. 4). This evidence was directly relevant to the clarity and credibility

of the witness. The Appellant’s defense was that Victim was high on meth; possibly drunk

from his night of partying in two locations, Littlefield and Lubbock; lack of sleep which bears

heavily on his memory about the facts that surround the conversations between the two

the morning of this incident and the actions of Appellant. Because Appellant was denied

the opportunity to fully develop these factors the jury was unable to consider the full

credibility of the witness, denying Appellant of his constitutional right of confrontation

of the witness in this case.

2.     THE TRIAL COURT ERRED BY FAILING TO ADMIT EVIDENCE IN

OPPOSITION TO THE RULE OF OPTIONAL COMPLETENESS.

 a.    Standard of Review

       Generally, a trial court's ruling on the admissibility of evidence is reviewed for an
                                              10
abuse of discretion. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

An abuse of discretion occurs when the trial court acts without reference to guiding rules

or principles or acts arbitrarily or unreasonably. Galliford v. State, 101 S.W.3d 600, 604

(Tex. App. Houston [1st Dist.] 2003, pet. ref.). Reviewing courts will affirm the trial

court's ruling if it lies within the zone of reasonable disagreement. See Torres v. State,

71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

      b.      The Law, Generally

       “The rule of optional completeness is one of admissibility and permits the

introduction of otherwise inadmissible evidence when that evidence is necessary to fully

and fairly explain a matter “opened up” by the adverse party. Walters v. State, 247 S.W.3d

204, 217–18 (Tex.Crim.App.2007); see Sauceda v. State, 129 S.W.3d 116, 123

(Tex.Crim.App.2004) (“The plain language of [Texas Rule of Evidence, Rule 107] indicates

that in order to be admitted under the rule, the omitted portion of the statement must be ‘on

the same subject’ and must be ‘necessary to make it fully understood.’ ”). It is designed to

reduce the possibility of the jury receiving a false impression from hearing only a part of

some act, conversation, or writing. Walters, 247 S.W.3d at 218.” Bezerra v. State, 485

S.W.3d 133, 143 (Tex. App. – Amarillo 2016), (petition for discretionary review refused

(June 15, 2016), cert. denied, 137 S. Ct. 495, 196 L. Ed. 2d 404 (2016)). The evidence

which is used to fully explain a matter opened up by the other party need not be ordinarily

admissible. It must be on the same subject and necessary to make it fully understood.

Walters v. State, 247 S. W. 3d 204 (Tex. Crim. App. 2007). Further, although the audio

portion of a videotape introduced by the state may be hearsay; it was ruled admissible under

the Rule of Optional Completeness because the state relied on the visual portion to prove

its case. TEXAS RULES OF EVIDENCE, R. 107 (Vernon 2016); Pena v. State, 353 S. W. 3d
                                             11
 797 (Tex. Crim. App. 2011). Further, evidence can be admissible when the state leaves a

 false impression with the jury.

         The prevention of the presentation of a defense is subject to constitutional error

 analysis. TEXAS RULE      OF   EVIDENCE, Rule 401 (Vernon 2016) provides that relevant

 evidence is evidence having any tendency to make the existence of any fact that is of

 consequence to the determination of the action more probable or less probable than it would

 be without the evidence. Whether rooted directly in the due process clause of the 14th

 Amendment or in the compulsory process or confrontation clause of the 6th Amendment,

 the Constitution guarantees criminal defendants a meaningful opportunity to present a

 complete defense. A trial court's ruling excluding evidence may rise to the level of a

 constitutional violation if a trial court's clearly erroneous ruling excludes otherwise relevant,

 reliable evidence which forms such a vital portion of the case that exclusion effectively

 precludes the defendant from presenting a defense. Kelly v. State, 321 S. W. 3d 583 (Tex.

 App. Houston [14]-2010 -no pet.)

 c.    The Application of the Law to the Fact

       The State in this case sought and was allowed to admit a portion of a video/audio tape

retrieved from a much longer and complete video/audio tape from the scene of the offense.

The defense promptly objected that the admission of just a portion of a much longer tape would

violate the Rule of Optional Completeness. Defense counsel made a bill of review/exception

and was allowed to admit the omitted audio/video tape as Defendant’s Exhibit 1 for the

purposes of the bill of review/exception. (See RR Vol. 4, P. 99-103). The Appellant was

denied the opportunity to clarify what was going on at the scene and provide the jury with a

complete picture of the events as they were unfolding. Further, the jury was misled as to the

issue of retaliation. The Court erred and the Appellant was harmed, demanding this case be
                                                12
remanded to the Trial Court for further action consistent with any ruling from the Appeals

Court.

 3.      THE EVIDENCE WAS INSUFFICIENT FOR CONVICTION IN THIS

 CASE.

 a.      Standard of Review

         A challenge to the legal sufficiency of the evidence need not be preserved at trial, and

may be raised for the first time on appeal. Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim.

App. 2001). In reviewing a legal sufficiency or “no evidence” claim, the appellate court will

review the evidence in the light most favorable to the verdict, and will determine whether the

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

Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Jackson v. Virginia, 433

U.S. 307, 319 (1979)). The appellate court will consider all evidence admitted, whether

proper or improper. “Every fact need not point directly and independently to the defendant’s

guilt [citation omitted]. A conclusion of guilt can rest on the combined and cumulative force

of all incriminating circumstances.” Id. The trier of fact is free to believe or disbelieve the

testimony of any witness. Flanagan v. State, 675 S.W.2d 734, 746 (Tex. Crim. App. 1984)

(op. on reh’g).

 b.      The Law

         Retaliation is a result oriented offense. See In re B.P.H., 83 S.W.3d 400, 407 (Tex.

 App.--Fort Worth 2002, no pet.); Herrera v. State, 915 S.W.2d 94, 98 (Tex. App.- San

 Antonio 1996, no pet.). As a result oriented offense, the action being criminalized is the

 threat to harm and the intent to inhibit public service by others. Herrera, 915 S.W.2d at 97.

 “A central purpose of the statute is to encourage a certain class of citizens to perform vital

 public duties without fear of retribution.” Doyle v. State, 661 S.W.2d 726, 729 (Tex. Crim.
                                               13
 App. 1983).

 c.     The Application of the Law to the Facts

        In this case the jury rejected an intentional act alleged in Count I, Aggravated Assault,

finding the Appellant not guilty. However, the jury chose to find Appellant guilty of Count

III, Retaliation. This is an inconsistent result that lacks sufficient evidence to sustain the

jury’s verdict. Appellant was quick to call 911, administer aid and the jury believed these

among other facts did not justify an aggravated assault. (RR Vol. 5, P. 126, L. 23-24) (RR

Vol. 5, P. 129, L. 15-17) and (RR Vol. 5, P. 130, L. 11-12). Further, Appellant testified and

admitted that he told the Victim to say it was him that shot himself, and admitted that he did

this out of fear because he was a convicted felon. No corroborating evidence was produced

to support Victim’s statement at trial that Appellant said he would finish him off was actually

made as a retaliatory threat, instead Appellant testified that he only threatened the Victim

because he was taking an aggressive stance or posture against Appellant. (RR Vol. 5, P. 129,

L. 5-14). The jury was unclear as to the audio evidence produced in the recorded 911 as

evidenced by the statement of “juror” in the Reporter’s Record. (RR Vol. 5, P. 202, L. 1

through P. 203, L. 3).

                                       CONCLUSION

        The Appellant was irreparably harmed when the Court denied defense counsel’s

attempts to cross examine the victim on his criminal history which bears on his credibility

and his use of mind altering substances which affect his memory. Appellant was harmed in

this denial and for this reason the Court of Appeals should reverse and render a judgment of

acquittal.

        The Appellant was denied a fair trial and due process of law when the Court refused

to admit a complete audio/video recording and instead only admitted the State’s version of
                                              14
the audio/video recording over the objection of defense counsel citing the “rule of optional

completeness” for which Appellant is entitled to a judgment of acquittal.

       There was legally insufficient evidence to convict Appellant of the offense of

retaliation; thus Appellant should be released from the bonds of this conviction.

                                         PRAYER

         WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable

 Court reverse the conviction and render a judgment of acquittal in this case.

                                                  Respectfully Submitted,

                                                  /s/ TINA DAVIS RINCONES
                                                  TINA DAVIS RINCONES
                                                  Attorney at Law
                                                  109 E 6th Street
                                                  Plainview, Texas 79072
                                                  Telephone (806) 429-0706
                                                  Facsimile (806) 553-4424
                                                  SBN 24030776
                                                  Email: trincones@redraiderlaw .com
                                                  ATTORNEY FOR APPELLANT

                              CERTIFICATE OF SERVICE

        This is to certify that a true and correct copy of the Brief of the Appellee has been
 emailed to the parties listed below on this 5th day of July, 2017.

 Kathryn H. Gurley
 287th District Attorney
 districtattorney@parmercounty.net
                                                  /s/ TINA DAVIS RINCONES
                                                  TINA DAVIS RINCONES

                           CERTIFICATE OF WORD COUNT

       I certify that this document contains 4,625 words and is incompliance with the Texas

Rules of Appellate Procedure.

                                                  /s/ TINA DAVIS RINCONES
                                                  TINA DAVIS RINCONES
                                             15
