                                                                                                  ACCEPTED
                                                                                              06-15-00082-CR
                                                                                   SIXTH COURT OF APPEALS
                                                                                         TEXARKANA, TEXAS
                                                                                        7/30/2015 10:39:48 PM
                                                                                             DEBBIE AUTREY
                                                                                                       CLERK

                              CASE NO. 06-15-00082 CR

                                         In The                           RECEIVED IN
                                                                     6th COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                           COURT OF APPEALS
                                                                     7/31/2015 9:05:00 AM
                       SIXTH DISTRICT OF TEXAS
                                                                         DEBBIE AUTREY
                            AT TEXARKANA                                     Clerk
________________________________________________________________________

                      FRED DOUGLAS MOORE, JR., Appellant

                                          VS.

                          THE STATE OF TEXAS, Appellee

                      On Appeal from 196th Judicial District Court
                                of Hunt County, Texas
                            Trial Court Cause No. 29,762
                      Honorable J. Andrew Bench, Judge Presiding

                          APPELLANT'S BRIEF
________________________________________________________________________

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      Comes now the Appellant and submits this brief pursuant to the provisions of the

Texas Rules of Appellate Procedure in support of his request for the judgment of

conviction to be overturned in Cause No. 06-15-00082

                               Oral Arguments Requested
                      IDENTITY OF PARTIES AND COUNSEL


Appellant's Attoreny:
Jessica Edwards
P.O. Box 9318
Greenville, TX 75404

Appellant's Attorney at Trial:
Katherine Ferguson
2900 Lee Street #102
Greenville, TX 75401

Appelle:
The State of Texas by and through
Noble D. Walker
Hunt County District Attorney
4th Floor Hunt County Courthouse
2507 Lee Street
Greenville, TX 75401

Appellee's Attorney at Trial:
Jeffery Kovach
Assistant Hunt County Attorney's
4th Floor Hunt County Courthouse
2507 Lee Street
Greenville, TX 75401
                                  TABLE OF CONTENTS

Identity of Parties and Counsel                       2

Table of Contents                                     3

Index of Authorities                                  7

Statement of the Case                                 7

Issues Presented                                      7

Statement of Facts                                    7

Point of Error Number One                             10

Point of Error Number Two                             15

Point of Error Number Three                           19

Prayer for Relief                                     21

Certificate of Service                                22

Certificate of Compliance                             22
                                LIST OF AUTHORITIES

Case Authority                                                                 Page(s)

Federal Cases

California v. Green, 399 U.S. 149 (1970)                                       10

Davis v. Alaska, 415 U.S. 305 (1974)                                           10

DePetris v. Kuykendall, 239 F.3d 1057, (9th Cir. 2001)                         13

Jackson v. Virginia, 443 U.S. 307 (979)                                        20

Pointer v. Texas 380 U.S. 400 (1965)                                           10

U.S. v. Lopez, 970 F.2d 583 (1992)                                             13

Washington v. State, 388 U.S. 14; 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967)   12


State Cases

Campbell v. State, 571 S.W.2d 161 (Tex. Crim. App. 1978)                       17

Easterling v. State, 710 S.W.2d 569 (Tex. Crim. App. 1986)                     11

Ex parte Amador, 326 S.W.3d 202 (Tex. Crim. App. 2010)                         16

Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009)                         16

Goad v. State, 354 S.W.3d 443 (Tex. Crim. App. 2011)                           16

Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981)                        17

Gutierrez v. State, 764 S.W.2d 796 (Tex. Crim. App. 1989)                      10

Guzman v. State, 188 S.W.3d 185 (Tex. Crim. App. 2006)                         16

Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)                           16
Hayward v. State, 158 S.W.3d 476 (Tex. Crim. App. 2005)                        16

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)                         20

McKithan v. State, 324 S.W.3d 582 (Tex. Crim. App. 2010)                       16

Moody v. State, 827 S.W.2d 875 (Tex. Crim. App. 1992)                          12

Parr v. State, 658 S.W.2d 620 (Tex. Crim. App. 1983)                           17

Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002)                          12

Rice v. State, 333 S.W.3d 140, 146 (Tex. Crim. App. 2011)                      16

Ransom v. State, 789 S.W.2d 572 (Tex. Crim. App. 1989)                         11

Rousseau v. State, 855 S.W.2d 666 (Tex.Crim. App. 1993)                     15, 16

Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981)                        16

Salinas v. State, 163 S.W.3d 734 (Tex. Crim. App. 2005)                        16

Saunders v. State, 840 S.W.2d 390 (Tex. Crim. App. 1992)                       17

Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008)                         16

Virts v. State, 739 S.W.2d 25 (Tex. Crim. App. 1984)                           10

Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005)                    20

Washington v. State, 127 S.W.3d 197 (Tex. App. Houston [1st Dist. ] 2003)      20


Constitutional Provisions

U.S. CONST., AMEND IV                                                          10

Statute and Rules

Tex.R. of App. Pro. 44.2(a)                                                    12

Tex. Code Crim. Pro. Article 37.09                                          15, 16
Tex. R. Evid. 608(a)          11

Tex. R. Evid. 608(b)          11

TEX. R. EVID. 610(b)          11

Tex. Penal Code. Sec. 29.02   17
                                    STATEMENT OF THE CASE

       This is an appeal of judgment and sentence in a criminal case from the 196th

Judicial District Court in Hunt County, Texas. Appellant was convicted by a jury of

Robbery on April 21, 2015. On April 22, 2015, the jury assessed Appellant's punishment

at 12 years in the Texas Department of Criminal Justice, Institutional Division.

                                  ISSUES PRESENTED

       Point of Error No. 1:

       The court erred by not allowing Appellant to cross-examine the State's
       complaining witness with regard to the said witnesses history of allowing people
       to steal from the store while on duty and for not allowing evidence about said
       witness' truthfulness. Said error was so egregious as to violated Appellant's
       sixth amendment right to confront his accusers and his due process of law.

       Point of Error No. 2:

       The court erred in failing to give a jury instruction on the requested lesser included
       offense as said charge was raised by the evidence and it was a valid rational
       alternative to the offense charged.

       Point of Error No. 3:

       The evidence is legally insufficient to prove Appellant guilty of Robbery.

                               STATEMENT OF FACTS


       On March 16, 2014, Andres Hernandez was working as a clerk at Mr. J's Food

Store in Greenville, TX. (R.R. 3, p. 20). Mr. Hernandez identified Appellant as a

customer of Mr. J's who had been to the store on multiple occasions. (R.R. 3, p. 21). Mr.

Hernandez stated that Appellant came in to Mr. J's on March 16, was identifying himself
as Jesus Christ and speaking in a Jamaican accent. (R.R. 3, p. 27). Mr. Hernandez said he

found Appellant's behavior belligerent and Mr. Hernandez tired to get Appellant to leave

the store. (R.R. 3, p. 27-28). At some point during the interaction, Appellant and Mr.

Hernandez shook hands and Appellant headed to the door. (R.R. 3, p. 28). Mr.

Hernandez testified that, as Appellant shook his hand, Appellant reached under the

counter. (R.R. 3, p. 28). When asked by the State what what Appellant took when he

reached under the counter, Mr. Hernandez replied, “He grabbed I believe it was forty

dollars.” (R.R. 3. p. 28).

       The State introduced State's Exhibit 1, the video surveillance footage from Mr. J's

of the incident in question. A review of State's Exhibit 1 does not support the testimony

provided by by Mr. Hernandez as the video does not reflect the person identified as

Appellant reaching under the counter as Mr. Hernandez shook his hand as described in

Mr. Hernandez's testimony.

       Mr. Hernandez testified the next thing he did was attempt to go for his baseball

bat, but he was unable to reach it. (R.R. 3, p. 29). Mr. Hernandez testified that he then

picked up the phone and told Appellant that he was calling the police, at which, according

to Mr. Hernandez, Appellant reached for the money, Mr. Hernandez tried to grab

Appellant, and then Appellant ran off with forty dollars. (R.R. 3, p. 29). When asked by

the State whether he was hurt during the interaction, Mr. Hernandez testified “on my shin

and on my arm.” (R.R. 3 p. 29).

       Mr. Hernandez testified during the interaction, Appellant never threatened him and
that he never felt threatened by Appellant (R.R. 3. p. 38-39). Mr. Hernandez further

testified that Appellant did not make any aggressive moves towards him and that he, Mr.

Hernandez, was the one to make physical contact in the interaction. (R.R. 3 p. 43).

According to Mr. Hernandez, at no time during the interaction did Appellant try to hit,

kick or any any other way physically harm Mr. Hernandez. (R.R. 3, p. 43). On cross-

examination by Appellant's trial counsel, Mr. Hernandez testified that there would not

have been any physical contact had Mr. Hernandez not grabbed appellant. (R.R. 3, p. 44-

45).

       Trial attorney for Appellant attempted to ask questions of Mr. Hernandez,

regarding the reasons for him being released from employment at Mr. J's, which drew an

objection from the State. (R.R. 3, p. 32). The Court then had a hearing outside the

presence of the jury in which Appellant's trial counsel questioned Mr. Hernandez about

the reasons for him being discharged from his employment, and his interactions with

customers during the course of his duties, specifically whether he had allowed customers

to steal from Mr. J's in the course of his job. (R.R. 3, p. 34-36). The Court refused to

allow Appellant to present the proffered testimony in front of the jury. (R.R. 3, p. 36).

       Appellant's trial attorney also attempted to ask questions of Jasmeet Sachdeva, the

owner of Mr. J's Food Store and Andres Hernandez's employer at the time of the incident,

as to the facts surrounding Mr. Hernandez's separation from Mr. J's Food Store in a

hearing outside the presence of the jury. (R.R. 3, p. 116). Appellant's attorney put

evidence on the record that Mr. Hernandez, while in the course of his normal duties of
employment, had allowed persons to steal from the store prior to the incident at bar.

(R.R. 3, p. 117-118). Appellant's attorney put testimony on the record show that Mr.

Hernandez had himself been stealing from his employer and that he was a dishonest and

untrustworthy person. (R.R. 3 p. 118-119). The court ruled that said testimony was

inadmissible and did not allow Appellant to present this evidence to the jury. (R. R. 3, p.

120-121).

                          POINT OF ERROR NUMBER ONE

       The Sixth Amendment of the United States Constitution guarantees every person

accused of a crime the right to confront their accusers. The Court of Criminal Appeals

has “often stated and discussed the fact that one of the greatest constitutional rights that

an accused person might have is the right to confront and cross-examine the State's

witnesses.” Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1984). “It cannot seriously

be doubted at this late date that the right of cross-examination is included in the right of

an accused in a criminal case to confront the witnesses against him. And probably no

one, certainly no one experienced in the trial of lawsuits, would deny the value of cross-

examination in exposing falsehood and bringing out the truth in the trial of a criminal

case.” Pointer v. Texas 380 U.S. 400, 404 (1965).

       Courts across the Nation have held repeatedly that cross-examination is an

indispensable tool in seeing that justice is done. Cross-examination is the “greatest legal

engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158

(1970). “Cross-examination is the principle means by which the believably of a witness
and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 305, 316 (1974).

“Cross-examination is the cornerstone of the criminal trial process and, as such, a

defendant must be given wide latitude to explore a witness' story, to test the witness'

perceptions and memory, and to impeach his or her credibility.” Gutierrez v. State, 764

S.W.2d 796,799 (Tex. Crim. App. 1989).

       When a defendant complains that his cross-examination of a witnesses has been

improperly limited by the court, the defendant must preserve said error by creating a bill

of exception including the questions he would ask and the answers to said questions.

Easterling v. State, 710 S.W.2d 569. 578 (Tex. Crim. App. 1986).

       The Texas Rules of Evidence outline the methods by which cross-examination is

conducted. Texas Rule of Evidence 610(b) provides that a witness may be cross-

examined on any matter relevant to any issue, including credibility. To impeach a

witness, a Defendant may produces proof that a witness is unworthy of belief or

credibility. Ransom v. State, 789 S.W.2d 572, 587 (Tex. Crim. App. 1989) cert. Denied.

       “The credibility of a witness may be attacked or supported by evidence in the form

of opinion or reputation, but subject to these limitations: (1) the evidence may refer only

to the character for truthfulness or untruthfulness, and (2) evidence of truthful character is

admissible only after the character of the witness for truthfulness has been attacked by

opinion or reputation evidence or otherwise,” Tex. R. Evid. 608(a). Texas Rule of

Evidence 608(b) goes on to say that “ specific instances of conduct of a witness, for the

purpose of attacking or supporting his credibility, other than convictions of a crime as
provided in Rule 609, may not be inquired into on cross-examination of the witness, nor

proved by extrinsic evidence.”

       Rule 608(b) is very restrictive and allows for no exceptions, nevertheless,

constitutional considerations must be kept in mind when evaluating the application of this

rule. Specifically, the constitutional right to confront one's accuser must include the right

to expose bias, prejudice, motivation for testifying and the credibility of the accuser. In

Moody v. State, 827 S.W.2d 875 (Tex. Crim. App. 1992) the Court held that Rule 608(b)

could not be applied so as to strip a defendant of his constitutional right to confront his

accuser.

       There is precedent at the highest level of our state and federal courts for the fact

that a error in excluding evidence based on a rule of evidence may rise to the level of

denial of a constitutional right. See Potier v. State, 68 S.W.3d 657 (Tex. Crim. App.

2002) where the Texas Court of Criminal Appeals recites a list of United States Supreme

Court cases in which errors in rulings based on exclusionary rules of evidence resulted in

constitutional errors. The litany of cases in Potier stands for the proposition that, while

the State can create rules to guide the admission of evidence, said rules cannot go so far

as to interfere with a defendant's constitutional rights. The Supreme Court of the United

States has held that the Framers of the Constitution did not intend to commit the futile act

of giving to a defendant the rights to secure the attendance of witnesses whose testimony

he had no right to use. Washington v. State, 388 U.S. 14, 23; 87 S.Ct. 1920, 18 L.Ed.2d

1019 (1967). It is clear that rules of evidence that are applied disproportionately to their
purpose may offend the Constitution. Pointer at 622.

                                    Standard of Review

       Texas Rule of Appellate Procedure 44.2(a) states; “If the appellate record in a

criminal case reveals constitutional error that is subject to harmless error review, the court

of appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the conviction

or punishment.”

       While it is true that erroneous evidentiary rulings rarely rise to the level of denying

the fundamental constitutional rights, such a ruling can rise to that level if the defendant

can demonstrate that the evidence excluded was important to his defense. U.S. v. Lopez,

970 F.2d 583, 588 (1992). While courts have dealt with whether the exclusion of

evidence rises to the level of constitutional error in different ways, Courts have

repeatedly held that if evidence was crucial to a defendant's ability to defend himself

against the charge, the the exclusion of such evidence violates the defendant's

constitutional right to due process of law. DePetris v. Kuykendall, 239 F.3d 1057, 1062-

1063 (9th Cir. 2001).

                                         Argument

       The case at bar does not concern some distant or remote bad act that was proffered

to impeach the accuser's credibility. Instead, we have facts and circumstances that are

intertwined with and related to the facts used by the State to convict Appellant. Whether

or not the victim alleged in the indictment had allowed Appellant or others to take things
from the store prior to this incident is wholly relevant to the issue of consent. By denying

Appellant the right to present such evidence, the trial court denied Appellant the right to

present his defense, which raises the error to the level of a constitutional violation.

       The testimony from Jasmeet Sachdeva , the owner of the store in Appellant's bill

of exception indicates that Mr. Hernandez, the victim and sole eyewitness to the robbery,

had allowed multiple individuals to take items from Mr. J's food store. (R.R. 3, 9. 116-

119). By not allowing the testimony before the jury, the trial court stripped from

Appellant his ability to argue that the taking of items, if any, from the store was a result of

the the implied consent of Mr. Hernandez as he had allowed such things to happen in the

past. This evidence could reasonably have had a great deal of impact on the jury and

could have caused a reasonable fact-finder to have come to a different conclusion.

       Additionally, Andres Hernandez was the sole eye witness to the offense. The jury

had to believe Mr. Hernandez that Appellant caused him pain to find the elements

required for robbery. As Mr. Hernandez was the alleged victim and the sole witness to

the issue of whether or not he experienced pain at the hands of Appellant during the

interaction, Mr. Hernandez's credibility is of utmost importance. The fact that he is

known to be a dishonest person was clearly information that would have impacted the

jury. In the testimony of Mr. Sachdeva in Appellant's bill of exception, evidence was

presented in regards to Mr. Hernandez's credibility as an honest person. (R.R. 3, p. 116-

119). Again, these are not abstract, remote or irrelevant fact situations upon which this

evidence is based. These are facts and circumstances that are clearly relevant to the
interactions between Appellant and Mr. Hernandez on the night in question.

       By refusing to allow Appellant to present said evidence, the court ham-strung

Defense counsel's ability to adequately and thoroughly cross-exam Mr. Hernandez and

Mr. Sachdeva. Indeed, the court's error in preventing said testimony from being

presented denied Appellant of his 6th Amendment right to confront his accusers and

essentially denied him of his 5th Amendment right to effective representation of counsel

by denying trial counsel multiple avenues of questioning and argument including consent

and the credibility of the primary accuser. There error is clearly harmful to Appellant as

this information would no doubt have had an impact on a rational jury and very certainly

would have resulted in a different outcome.

       While not every error in excluding evidence rises to the level of constitutional

error, it is clear from the record that this evidence was vital to Appellant's defense. The

evidence was so crucial to Appellant's defense that Appellant's trial counsel made two

separate bills of exception to preserve said evidence to show its importance. The trial

court's exclusion of the proffered evidence was not merely an evidentiary error, but one of

constitutional dimensions. The ruling went to the heart of the defense and prevented

Appellant from arguing his defense of implied consent and additionally prevented him

from showing the lack of credibility of the State's star witness.

                          POINT OF ERROR NUMBER TWO

       The court erred in failing to give a jury instruction on the lesser included offense
       as it said charge was raised by the evidence and it was a valid rational alternative
       to the offense charged.
                                          The Law
       Article 37.09 of the Texas Code of Criminal Procedure defines a lesser included

offense as being established if “it is established by proof of the same or less than all the

facts required to establish the commission of the offense charged.” To determine whether

the lesser-included offense instruction requested by appellant should have been given, the

Court follows a two-step analysis. Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex.

Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981). The

first step asks whether the lesser-included offense is included within the proof necessary

to establish the offense charged. McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim.

App. 2010). Courts will then compare the statutory elements and any descriptive

averments in the indictment for the greater offense with the statutory elements of the

lesser-included offense. Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex. Crim. App.

2010); Ex parte Watson, 306 S.W.3d 259, 263 (Tex. Crim. App. 2009); Hall v. State, 225

S.W.3d 524, 535–36 (Tex. Crim. App. 2007); see also Tex. Code Crim. Prl, art. 37.09.

This step is a question of law. Hall, 225 S.W.3d at 53.

       In the second step of the analysis, the Court considers whether evidence in the

record would permit a jury to rationally find appellant was guilty of only the lessor

included and not the original charge in the indictment. Guzman v. State, 188 S.W.3d 185,

188–89 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App.

2005). The evidence must establish the lesser-included offense as “a valid rational

alternative to the charged offense.” Segundo v. State, 270 S.W.3d 79, 91 (Tex. Crim. App.

2008); see also Rice v. State, 333 S.W.3d 140, 146 (Tex. Crim. App. 2011).
         In this review, Appellate Courts consider all of the evidence presented at trial.

Hayward v. State, 158 S.W.3d 476, 478–79 (Tex. Crim. App. 2005); Rousseau, 855

S.W.2d at 673. Anything more than a scintilla of evidence is sufficient to entitle a

defendant to a lesser-included offense charge. Goad v. State, 354 S.W.3d 443, 446 (Tex.

Crim. App. 2011). In determining whether the evidence raises the requested lesser-

included offense, Courts do not consider the credibility of the evidence or whether it

conflicts with other evidence. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App.

1992).

                                          Argument

         An analysis of the elements makes it clear that theft of property is a lesser-included

offense of Robbery. Additionally, the Court of Criminal Appeals has held such numerous

times. Campbell v. State, 571 S.W.2d 161 (Tex. Crim. App. 1978); Griffin v. State, 614

S.W.2d 155 (Tex. Crim. App. 1981); Parr v. State, 658 S.W.2d 620 (Tex. Crim. App.

1983). The first prong of the test being satisfied, we must now turn our attention to the

second prong to determine if the evidence establishes that the lesser-included is a valid

rational alternative to the charged offense.

         The evidence clearly shows that, if an offense was committed at all, the offense

was theft and not robbery. There is no evidence whatsoever in the record to show that

Appellant caused any injury to the alleged victim during the course of the interaction that

lead to Appellant's indictment and conviction.

         Texas Penal Code Section 29.02 defines robbery as an offense if “in the course of
committing theft....and with intent to obtain or maintain control of the property he; 1)

intentionally, knowingly or recklessly causes bodily injury to another; or 2) intentionally

or knowingly threatens or places another in fear of imminent bodily injury or death.” The

record is unequivocal, based on the alleged victim's own testimony, that Appellant did not

make any threats or put the alleged victim in imminent fear. (R.R. 3 p. 38-39).

Additionally, the evidence is devoid of any evidence that Appellant intentionally,

knowingly or recklessly caused any bodily injury to Andres Hernandez. The testimony

from Mr. Hernandez, the victim alleged in the indictment, is that Appellant never hit,

kicked or in any other way physically harm to the victim and that the victim started the

physical interaction. (R.R. 3, p. 43). The description of the encounter from Hernandez

was that he, Mr. Hernandez, “went to grab him. And he (Appellant) ran off with $40.”

(R.R. 3, p. 29). When asked by the State “Did you get hurt at all during this?” Mr.

Hernandez replied, “On my shin and on my arm.” (R.R. 3, p. 29). Mr. Hernandez never

states that Appellant was the cause of said injury to his shin and his arm. The injury to

Mr. Hernandez's shin and arm could have just as reasonably been caused by Mr.

Hernandez's own actions given the testimony that he was the person who made the first

physical contact. (R.R. 3, p. 43). The evidence is woefully inadequate to support a

finding that Appellant intentionally, knowingly or recklessly caused bodily injury to Mr.

Hernandez.

       A review of the video tape of the incident, State's Exhibit 1, is equally devoid of

evidence to support the State's argument that Appellant intentionally, knowingly or
recklessly caused bodily injury to Mr. Hernandez. A review of State's Exhibit 1 reveals

the person identified as Appellant coming into the camera frame at 17 minutes and 25

seconds into the video. Mr. Hernandez and the person identified as Appellant have a

conversation until 18 minutes and 25 seconds into the video, when the person identified

as Appellant walks out of the camera frame. The person identified as Appellant reappears

in the camera frame at 19 minutes and 19 seconds into the video, has a brief conversation

with Mr. Hernandez, and exits the video frame at 19 minutes and 33 seconds into the

video. The person identified as Appellant reappears at 21 minutes and 52 seconds into

the video, at which time we observe the interaction that is the core of the State's charge

against Appellant. A careful review of State's Exhibit 1 shows that, just as Mr.

Hernandez testified, (R.R. 3 p. 43), the person identified as Appellant never hits, kicks or

in any other way attempts to physically harm Mr. Hernandez. State's Exhibit 1 shows the

person identified as Appellant reach under the counter, at which time Mr. Hernandez

grabs the person identified as Appellant and puts his arms around him. The video shows

the person identified as Appellant attempt to pull his body away from Mr. Hernandez and

flee from the store. The video in State's Exhibit 1 reflects aggressive actions on the part

of Mr. Hernandez, but no such aggressive actions on the part of the person identified as

Appellant. State's Exhibit 1 supports the alternative

       Given the evidence introduced at trial, the denied lesser-included office is a valid

rational alternative to the charged offense. It was error for the trial court to deny the

lessor included charge to the jury.
                        POINT OF ERROR NUMBER THREE

       The evidence is legally insufficient to find Appellant guilty of Robbery.

                                         The Law

       In a criminal case, an appellant may raise legal sufficiency for the first time on

appeal. Washington v. State, 127 S.W.3d 197 (Tex. App. Houston [1st Dist. ] 2003, pet.

Dism'd). When reviewing legal sufficiency of the evidence, a court must look at all of the

evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the offense were proven beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319; Vodochodsky v. State, 158

S.W.3d 502 (Tex. Crim. App. 2005). While giving the proper deference to the

factfinder's role, this court must safegauard against the rare occurrence when a factfinder

does not act rationally. Laster v. State, 275 S.W. 3D 512 (Tex. Crim. App. 2009).

                                            Argument

       As argued in Point of Error number two, the evidence in the record is insufficient

to prove Appellant harmed Andres Hernandez during the course of committing theft. As

argued above, the record is unequivocal, based on the alleged victim's own testimony, that

Appellant did not make any threats or put the alleged victim in imminent fear. (R.R. 3 p.

38-39). Additionally, the evidence is devoid of any evidence that Appellant intentionally,

knowingly or recklessly caused any bodily injury to Andres Hernandez. The testimony

from Mr. Hernandez, the victim alleged in the indictment, is that Appellant never hit,

kicked or in any other way physically harm to the victim and that the victim started the
physical interaction. (R.R. 3, p. 43). The description of the encounter from Hernandez

was that he, Mr. Hernandez, “went to grab him. And he (Appellant) ran off with $40.”

(R.R. 3, p. 29). When asked by the State “Did you get hurt at all during this?” Mr.

Hernandez replied, “On my shin and on my arm.” (R.R. 3, p. 29). Mr. Hernandez never

states that Appellant was the cause of said injury to his shin and his arm. The injury to

Mr. Hernandez's shin and arm could have just as reasonably been caused by Mr.

Hernandez's own actions given the testimony that he was the person who made the first

physical contact. (R.R. 3, p. 43). The evidence is woefully inadequate to support a

finding that Appellant intentionally, knowingly or recklessly injured Mr. Hernandez.

       It is clear from the record that no rational trier of fact could have found the

essential elements of the offense were proven beyond a reasonable doubt.

                                 PRAYER FOR RELIEF

       For the reasons stated hereinabove, it is respectfully submitted that, upon appellate

review, the Court of Appeals should affirm the judgment of conviction and sentence of

the Trial Court.



                                           Respectfully submitted,



                                            /s/ Jessica Edwards
                                           JESSICA EDWARDS
                                           Attorney for Appellant
                                           Fred Douglas Moore, Jr.
                                           State Bar Number - 24000994
                                           P.O. Box 9318
                                          Greenville, Texas 75404
                                          Telephone Number - (903) 513-0510
                                          Facsimile Number - (903) 200-1359
                                          jessicaedwardslaw@gmail.com



                             CERTIFICATE OF SERVICE

      I certify that a true and correct copy of Appellant's Brief was served on the Hunt
County District Attorney's Office through the efiletexas website on July 31, 2015.



                                                 /s/ Jessica Edwards
                                                 Jessica Edwards



                             CERTIFICATE OF SERVICE

      I certify that a true and correct copy of Appellant's Brief was delivered to
Appellant via certified mail to the Cole Unit; TDCJ-ID on July 31, 2015.



                                                 /s/ Jessica Edwards
                                                 Jessica Edwards


                          CERTIFICATE OF COMPLIANCE

       I certify that Appellant's Brief is written in Times New Roman font in 13 point
text. Appellant's brief has 4860 works according to the word count feature on the
undersigned attorneys word processing program.



                                                 /s/ Jessica Edwards
                                                 Jessica Edwards
