                                                                     ACCEPTED
                                                                 12-14-00337-CR
                                                    TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                             6/1/2015 9:06:56 PM
                                                                   CATHY LUSK
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-14-00337-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS     6/1/2015 9:06:56 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS




                    LARRY MAPLES,
                      APPELLANT

                             VS.

                  THE STATE OF TEXAS,
                       APPELLEE




        ON APPEAL IN CAUSE NUMBER CR13-00334
       FROM THE 294TH JUDICIAL DISTRICT COURT
            OF VAN ZANDT COUNTY, TEXAS
      HONORABLE TERESA DRUM, JUDGE PRESIDING


                  APPELLANT’S BRIEF


JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437

ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Larry Maples
    TDCJ # 01965775
    Stiles Unit
    3060 FM 3514
    Beaumont, Texas 77705

APPELLANT’S TRIAL COUNSEL
    Jeff Haas
    100 East Ferguson, Suite 908
    Tyler, Texas 75702
    903-593-8338

     James Huggler
     100 East Ferguson, Suite 805
     Tyler, Texas 75702
     903-593-2400

     J. Rex Thompson
     321 West Houston Street
     Tyler, Texas 75702
     903-533-8434

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas




                                    ii
APPELLEE’S TRIAL COUNSEL
    Chris Martin
    Richard Schmidt
    Van Zandt County Criminal District Attorney’s Office
    400 South Buffalo
    Canton, Texas 75103
    903-567-4104

APPELLEE’S APPELLATE COUNSEL
    Richard Schmidt
    Van Zandt County Criminal District Attorney’s Office
    400 South Buffalo
    Canton, Texas 75103
    903-567-4104




                                 iii
                                 TABLE OF CONTENTS
                                                                                             PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

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

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

       ISSUE ONE: THERE WAS LEGALLY INSUFFICIENT
       EVIDENCE TO FIND APPELLANT GUILTY OF THE
       OFFENSE OF CAPITAL MURDER.

       ISSUE TWO: IT WAS ERROR FOR THE TRIAL COURT TO
       DENY APPELLANT’S MOTION FOR DIRECTED VERDICT.

       ISSUE THREE: IT WAS ERROR FOR THE TRIAL COURT TO
       DENY APPELLANT’S MOTION TO INCLUDE AN
       INSTRUCTION REGARDING PERJURY.

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

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

       A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
       B. Law Requiring Display of Weapon. . . . . . . . . . . . . . . . . . . . . . . 6
       C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
                                                  iv
       D. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ISSUE THREE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                   v
                             TABLE OF AUTHORITIES
STATUTES
TEX. PENAL CODE ANN. §19.03(a)(2) (West 2012). . . . . . . . . . . . . . . 1, 3, 6


CASES
Alcorta v. Texas, 355 U.S. 28, 78 S. Ct. 103, 2 L.Ed.2d 9 (1957).. . . . . 10
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). . . . . . . . . . . . . 8
Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App. 1999).. . . . . . . . . . . 8
Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763,
   31 L.Ed.2d 104 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Haywood v. State, 507 S.W.2d 756 (Tex. Crim. App. 1974).. . . . . . . . . 11
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
   61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). . . . . . . 5
Madden v. State, 799 S.W.2d 683 (Tex. Crim. App. 1990).. . . . . . . . . . . 6
Mears v. State, 429 S.W.2d 490 (Tex. Crim. App. 1968). . . . . . . . . . . . 10
Moreno v. State, 755 S.W.2d 866 (Tex. Crim. App. 1988). . . . . . . . . . . . 8
Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L.Ed.2d 9 (1957). . . 10
Nelson v. State, 511 S.W.2d 18 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . 10
Sharp v. State, 707 S.W.2d 611 (Tex. Crim. App. 1986). . . . . . . . . . . . . 8
Tibbs v. Florida, 457 U.S. 31, 102 S. Ct. 2211,
   72 L.Ed.2d 652 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Turro v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993). . . . . . . . . . . . . . 8
Williams v. State, 513 S.W.2d 54 (Tex. Crim. App. 1974). . . . . . . . . . . 10
Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996). . . . . . . . . . . 6




                                               vi
RULES
TEX. R. APP. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                   vii
                                        NO. 12-14-00337-CR

LARRY MAPLES,                                           §    IN THE COURT OF APPEALS
APPELLANT                                               §
                                                        §
VS.                                                     §    12TH JUDICIAL DISTRICT
                                                        §
THE STATE OF TEXAS,                                     §
APPELLEE                                                §    TYLER, TEXAS


                                      APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:

        Comes now Larry Maples (“Appellant”), by and through his attorney

of record, James Huggler, and pursuant to the provisions of TEX. R. APP.

PROC.38, et seq., respectfully submits this brief on appeal.




                                 STATEMENT OF THE CASE

        Appellant was indicted in cause number CR13-00334 and charged

with the felony offense of Capital Murder. I CR 11.1 TEX. PENAL CODE

ANN. §19.03(a)(2) (West 2012).                          A jury was selected, and following

evidence and argument of counsel found Mr. Maples guilty of capital
1

The Clerk’s Record is designated “CR” with roman numeral preceding “CR” indicating the correct volume and an arabic
numeral following “CR” specifying the correct page in the record.
                                                        1
murder and an automatic life sentence was imposed. II CR 374; XVI RR

49.2 Notice of appeal was timely filed. II CR 379. This brief is timely

filed on or before June 1, 2015 following proper extension by this Court.




                                ISSUES PRESENTED

ISSUE ONE: THERE WAS LEGALLY INSUFFICIENT EVIDENCE TO
FIND APPELLANT GUILTY OF THE OFFENSE OF CAPITAL
MURDER.

ISSUE TWO: IT WAS ERROR FOR THE TRIAL COURT TO DENY
APPELLANT’S MOTION FOR DIRECTED VERDICT.

ISSUE THREE: IT WAS ERROR FOR THE TRIAL COURT TO DENY
APPELLANT’S MOTION TO INCLUDE AN INSTRUCTION
REGARDING PERJURY.



                          STATEMENT OF THE FACTS

       Initially, James Huggler and Rex Thompson were appointed to

represent Mr. Maples on this charge, as well as other charges in Van

Zandt County. I CR 23, 24. Then January 22, 2014, the State filed a

notice to seek the death penalty. I CR 162. Jeff Haas was appointed as

defense trial counsel.          I CR 163, 168.          Because neither Huggler or
2
 References to the Reporter’s Record are made using “RR” with a roman numeral preceding
“RR” indicating the volume and an arabic numeral following “RR” specifying the correct page.
                                              2
Thompson were on the list of capital-approved attorneys in the First

Judicial Region, they withdrew from representing Mr. Maples. I CR 164-

167. On May 1, 2014, and no document was ever filed with the Clerk, the

State withdrew its notice to seek the death penalty. VII RR 3. Mr.

Maples filed a letter with the trial court seeking Mr. Haas’ removal, and

a grievance against Mr. Haas. I CR 175-76; IX RR 3, X RR 4. Haas filed

a motion to withdraw, which was denied by the trial court. I CR 181-182,

186. Huggler was appointed second chair counsel. I CR 186, 187.

       The State alleged that on March 24, 2013, Larry Maples

intentionally caused the death of Heather Maples, by shooting her with

a firearm, while in the course of committing the offense of burglary of a

habitation of Moises Clemente. I CR 11; XIV RR 10-11; TEX. PENAL CODE

ANN. §19.03(a)(2) (West 2012). Clemente had met Heather Maples3 when

she worked at the post office in Ben Wheeler, Texas. XIV RR 26. In 2008,

Clemente and Heather Maples began dating. XIV RR 28. They dated for

three to four months and she moved into his house. XIV RR 29-30. In

2012, they were engaged to be married. XIV RR 32. This relationship

3
 Mr. Clemente first met her under a previous name, Heather Coffin, however, for simplicity,
Mrs. Maples will be referred to by her married name throughout this Brief. XIV RR 26.
                                                3
ended in June or October 2012. XIV RR 32, 34. In August 2012, Clemente

learned that Heather had a relationship with Larry Maples. XIV RR 34.

Clemente knew that Heather had married Larry Maples. XIV RR 44.

     On March 23, 2013, Heather Maples came to Clemente’s home. XIV

RR 43. Sometime during that evening, Larry Maples came to Clemente’s

house, found Heather Maples there in Clemente’s bedroom in a state of

undress, Clemente was shot once and Heather Maples was shot more than

once by Larry Maples. XIV RR 56, 58, 61-62, 65, 67. A further discussion

of the facts is included in the argument section of this brief.




                      SUMMARY OF ARGUMENT

     There are two sets of issues for this Court to consider. The first and

second issue raised regard the legal sufficiency of the evidence and

whether the trial court erred in denying the motion for a directed verdict.

The evidence in the case supported a conviction for murder, however,

there was legally insufficient evidence to prove that it was committed

during the course of a burglary.

     The final issue raised in this brief regards the trial court’s error in

                                     4
not including a requested instruction on perjured testimony in the jury

instruction.




                             ARGUMENT

ISSUE ONE, RESTATED: THERE WAS LEGALLY INSUFFICIENT
EVIDENCE TO FIND APPELLANT GUILTY OF THE OFFENSE OF
AGGRAVATED ROBBERY.

ISSUE TWO, RESTATED: IT WAS ERROR FOR THE TRIAL COURT
TO DENY APPELLANT’S MOTION FOR DIRECTED VERDICT.



                        A. Standard of Review

     Appellant contends that the evidence is legally insufficient to

support the verdict. The standard for reviewing a legal sufficiency

challenge is whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson

v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-787, 61 L. Ed. 2d

560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993). The evidence is examined in the light most favorable to the

verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871

S.W.2d at 186. A successful legal sufficiency challenge will result in

                                    5
rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457

U.S. 31, 41-42, 102 S. Ct. 2211, 2217-218, 72 L. Ed. 2d 652 (1982).

      A challenge to the trial court’s ruling on a motion for directed verdict

is, in actuality, a challenge to the sufficiency of the evidence to support the

conviction. Therefore, the standard of review is the same as that used in

reviewing the sufficiency of the evidence. Madden v. State, 799 S.W.2d

683, 686 (Tex. Crim. App. 1990); Williams v. State, 937 S.W.2d 479, 482

(Tex. Crim. App. 1996).



                        B. Elements of the Offense

      A person commits capital murder if: (1) he intentionally causes the

death of an individual; (2) and is committing or attempting to commit the

offense of burglary. TEX. PENAL CODE ANN. §19.03(a)(2) (West 2012).



                       C. Application to These Facts

      Law enforcement was called to Moises Clemente’s house in Van

Zandt County following a shooting. Heather Maples was shot multiple

times and Moises Clemente was shot once. XIV RR 154-55. Both were

shot by Larry Maples. XV RR 24. The issue is not the murder of Heather

                                       6
Maples, or even the indicted but yet untried aggravated assault of Moises

Clemente, but rather had Larry Maples entered the home with the intent

to commit a burglary?

     Following being sworn in as a witness, Clemente verified that he

was there to tell the jury the truth. XIV RR 20, 102. Moises Clemente

testified that during 2013 he and Heather Maples did not have any

intimate contact. XIV RR 39. On April 23, Clemente was not interested

in renewing his relationship with Heather Maples. XIV RR 45. On March

23 and 24, Clemente denied having intimate contact with Heather Maples.

XIV RR 48, 55, 133. He denied having sex with Heather Maples. XIV RR

120. Clemente testified that the last time they had sex was approximately

six months previously. XIV RR 135.

     Clemente maintained that he and Heather Maples did not have any

sexual relations despite being informed by the District Attorney’s Office

that his DNA was found vaginally and anally. XIV RR 120, 133-34.

Gloria Ruiz, a forensic scientist from the Department of Public Safety

Crime Lab in Garland was called by the defense. XV RR 66. Ms. Ruiz

conducted a DNA analysis from swabs obtained from Heather Maples

vagina and anus. XV RR 70, 77, 80, 83, 84, 85. She found that there were

                                    7
epithelial or skin cells from Heather Maples and sperm cells from Moses

Clemente.    XV RR 70, 75-76.        To a reasonable degree of scientific

certainty, Moises Clemente had engaged in sexual relations with Heather

Maples, (XV RR 76) and committed perjury.

     The jury, as the trier of fact, "is the sole judge of the credibility of the

witnesses and of the strength of the evidence." Fuentes v. State, 991

S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe

or disbelieve any portion of the testimony. Sharp v. State, 707 S.W.2d

611, 614 (Tex. Crim. App. 1986). The jury may also draw reasonable

inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d

126, 133 (Tex. Crim. App. 1996). When faced with conflicting evidence, the

appellate court presumes the trier of fact resolved conflicts in the

prevailing party's favor. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim.

App. 1993). However, the duty of a reviewing court requires ensuring that

the evidence presented actually supports a conclusion that the defendant

committed the crime charged. Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007). An appellate court can not uphold a fact-finder's

decision if it is irrational or unsupported by more than a mere modicum

of the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App.

                                       8
1988).

     In this case, the State’s case rests on the shoulders of Moises

Clemente. Clemente offered the evidence about what happened inside his

home between himself, Heather Maples and Larry Maples. While a jury

may make rational inferences from evidence, they are not allowed to

completely disregard the fact that a witness testified at least five times

directly that he had not had any sex with Heather Maples when

scientifically it was proven that they had had both vaginal and anal sex

the night of these events. If the defense had offered or sponsored that

type of testimony, Mr. Clemente should have been warned and had

counsel appointed. It would not be an unforeseeable event if the State

chose to indict a witness who gave that story for aggravated perjury.



                             D. Conclusion

     This Court should sustain the First and second issues and reverse

the judgment of the trial court and render an acquittal to the charge of

capital murder.




                                    9
ISSUE THREE, RESTATED: IT WAS ERROR FOR THE TRIAL COURT
TO DENY APPELLANT’S MOTION TO INCLUDE AN INSTRUCTION
REGARDING PERJURY.

     Mr. Maples requested that the jury be given the following charge:

     If you believe that the testimony of Moises Clemente was false, not
     merely inaccurate but perjury, you are instructed to wholly
     disregard his testimony. The burden of showing that the testimony
     os a State’s witness was perjured rests on the defendant. If the
     State presented a false picture of the facts and failed to correct that
     false picture once it became apparent that its own testimony was
     false, that can be considered by you in your deliberations. II CR 363;
     XVI RR 6.

     The State is not allowed to obtain a conviction through the knowing

use of perjured testimony. Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173,

3 L.Ed.2d. 1217 (1959). The knowing presentation of perjured testimony

by the State violates due process. Alcorta v. Texas, 355 U.S. 28, 78 S. Ct.

103, 2 L.Ed.2d 9 (1957). A reversal must follow if the prosecutor presents

a false picture of the facts by failing to correct its own testimony when it

becomes apparent that it was false. Napue; Mears v. State, 429 S.W.2d

490 (Tex. Crim. App. 1968); see also Giglio v. United States, 405 U.S. 150,

92 S. Ct. 763, 31 L.Ed.2d 104 (1972). The defendant bears the burden of

showing that the testimony used by the State was in fact perjured.

Williams v. State, 513 S.W.2d 54 (Tex. Crim. App. 1974); Nelson v. State,


                                     10
511 S.W.2d 18 (Tex. Crim. App. 1974). Perjury is a serious charge which

must be clearly supported by the evidence. Haywood v. State, 507 S.W.2d

756 (Tex. Crim. App. 1974).

     In many cases, the ability for a defendant to prove at trial that a

State’s witness committed perjury is difficult, even insurmountable. In

this case, summarizing , and incorporating the factual arguments made

above, Moises Clement testified repeatedly that he and Heather Maples

had not had sexual relations for a period of at least six months prior to the

acts alleged in this indictment. He even arrived at an outlandish theory

that Mrs. Maples had used a sexual toy at least three days prior to April

24, 2013 and that this was the same toy they had used previously.

     The major factual problem with that theory is that it flies in the face

of the scientific evidence in this case. XV RR 81-82. In order for this

allegation to be accurate, Mrs. Maples would have had to keep this device

in a perfect environment with no moisture, in a paper bag, at room

temperature, without exposure to the sun, for that entire period. XV RR

80. The idea that Mrs. Maples could use this toy, then three days later

there would still be sperm cells present both vaginally and anally would

require insertion and the complete lack of Mrs. Maples engaging in

                                     11
normal everyday activity. XV RR 83-85.

     There are also legal issues with upholding this theory. The State

knew that Clemente had denied that he and Heather Maples had sex. The

State knew that the theory about her use of a toy would come from the

witness stand in advance of trial. XIV RR 135. Even when it became

apparent that Mr. Clemente was lying, the State did not correct this lie.

The State argued that the substance of the perjury was not important.

“What were they doing in the bedroom? I don’t care.” XVI RR 18. “Don’t

concern yourselves with that. That’s a moral question” XVI RR 18.

“Moises Clemente’s DNA is in her vagina and anal cavities. So what?

Moises Clemente said they weren’t having sex. Were they? Does it

matter?” XVI RR 21. “[Heather Maples] was being unfaithful. So what?

So what?” XVI RR 42, ln. 2-3.

     The closest the State came to admitting that their witness

committed perjury, or the closest the State came to trying to correct the

perjured testimony came later in argument. “Moises Clemente’s DNA was

found inside of Heather Maples. Okay. There’s no disputing that”. XVI

RR 42, ln. 8-9. This admission was tempered or qualified with additional

argument: “So was Moises Clemente lying when he said, We didn’t have

                                   12
sex? Maybe.” XVI RR 22, ln. 5-6. “Was he lying about having sex with

her? Maybe. Maybe.” XVI RR 22, ln. 18-19.

     The State missed the point. The point of bringing up the fact that

Moises Clemente lied on the stand was not to establish that Heather

Maples was unfaithful to Larry Maples. XVI RR 44, ln., 21-22. The point

was to establish to the jury that the State relied on the perjury of Moises

Clemente, that the State did nothing to correct this perjury, and that this

violated Larry Maples’ right to due process of law. While the State can

offer hard blows, they cannot offer foul blows and allowing perjured

testimony to stand without correction is a foul blow which requires

reversal.




                                    13
                         PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that the trial court’s decision be reversed and judgment of acquittal

rendered, or that the case be reversed and remanded for a new trial, and

for other such relief as allowed by law.



                                              Respectfully submitted,

                                               /s/ James Huggler
                                              James W. Huggler, Jr.
                                              State Bar Number
                                              00795437
                                              100 E. Ferguson, Suite 805
                                              Tyler, Texas 75702
                                              903-593-2400
                                              903-593-3830 fax

                                              ATTORNEY FOR
                                              APPELLANT




                                    14
                      CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief of the Appellant has been

forwarded to counsel for the State by regular mail on this the 1st day of

June, 2015.




 /s/ James Huggler
James W. Huggler, Jr.


Attorney for the State:
Mr. Richard Schmidt
Van Zandt County Criminal District Attorney’s Office
400 South Buffalo
Canton, Texas 75103




                    CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 3,275 words as counted by
Corel WordPerfect version x5.


 /s/ James Huggler
James Huggler




                                     15
