                                                                                ACCEPTED
                                                                            06-17-00229-CR
                                                                  SIXTH COURT OF APPEALS
                                                                        TEXARKANA, TEXAS
                                                                          5/15/2018 8:51 AM
                                                                           DEBBIE AUTREY
                                                                                     CLERK



                 No. 06-17-0229-CR
                                                          FILED IN
                                                   6th COURT OF APPEALS
                                                     TEXARKANA, TEXAS
        IN THE SIXTH COURT OF APPEALS              5/15/2018 8:51:57 AM
                                                       DEBBIE AUTREY
                  at TEXARKANA                             Clerk


________________________________________________

 ANTHONY WILSON, JR.,
                                                 Appellant

                          vs.

 STATE OF TEXAS,
                                         Appellee
________________________________________________


         Appeal from the 102nd District Court
              of Bowie County, Texas

________________________________________________


              APPELLANT’S BRIEF

________________________________________________


                        Troy Hornsby

                        Miller, James, Miller & Hornsby, L.L.P.
                        1725 Galleria Oaks Drive
                        Texarkana, Texas 75503
                        troy.hornsby@gmail.com
                        903.794.2711, f. 903.792.1276

                        Attorney for Appellant
                        Anthony Wilson, Jr.



             Oral Argument Requested
                         IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a complete

list of all parties to the trial court’s judgment and the names and addresses of all trial

and appellate counsel:


Appellant                                 Appellant’s appellate counsel

Anthony Wilson, Jr.                       Troy Hornsby
                                          Miller, James, Miller, & Hornsby, LLP
                                          1725 Galleria Oaks Drive
                                          Texarkana, Texas 75503

                                          Appellant’s trial counsel

                                          Derric McFarland
                                          McFarland Law Office
                                          P.O. Box 1048
                                          Texarkana, Texas 75504-1048

Appellee                                  Appellee's appellate counsel

State of Texas                            Kelley Crisp
                                          Bowie County District Attorney’s Office
                                          601 Main Street
                                          Texarkana, Texas 75501

                                          Appellee's trial counsel

                                          J. Randle Smolarz
                                          Bowie County District Attorney’s Office
                                          601 Main Street
                                          Texarkana, Texas 75501




                                             2
                                              TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

         Sole Issue: The guilt-innocence jury charge was fundamentally defective
                     because it directed the jury to find Wilson guilty of capital
                     murder based upon an underlying felony murder, rather than
                     an underlying (regular) murder, for which he was indicted. . . . 12

                             Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

                             Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

                             Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

                             Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

         Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23




                                                               3
                                    INDEX OF AUTHORITIES

CASES:                                                                                           PAGE

Allen v. State,
       253 S.W.3d 260, 264 (Tex. Crim. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Almanza v. State,
     686 S.W.2d 157 (Tex Crim. App. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,17

Brumit v. State,
       206 S.W.3d 639 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Druery v. State,
       225 S.W.3d 491, 504 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Garcia v. State,
       149 S.W.3d 135, 144 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Hutch v. State,
       922 S.W.2d 166, 172 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . 17

King v. State,
        953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17

Malik v. State,
      953 S.W.2d 234 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Marin v. State,
      851 S.W.2d 275 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Medina v. State,
      7 S.W.3d 633, 640 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Ngo v. State,
       175 S.W.3d 738, 743 (Tex. Crim. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Plata v. State,
        926 S.W.2d 300, 302 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Reeves v. State,
        420 S.W.3d 812, 818 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . 14



                                                   4
Selvage v. State,
        680 S.W.2d 17, 20 (Tex. Crim. App. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Starks v. State,
       127 S.W.3d 127, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. dism'd) . . 12

Swearingen v. State,
       270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet. ref'd) . . . . . . . . . . . . . . 14


STATUTES/RULES:

Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tex. R. App. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Tex. R. App. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,17

Tex. Pen. Code Ann. § 19.02 (West 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Tex. Pen. Code Ann. § 19.03 (West Supp. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15




                                                            5
                             STATEMENT OF THE CASE

Nature of case:      This is an appeal from a conviction for capital murder in violation
                     of Texas Penal Code section 19.03. (CR 130).

Judge/Court:         Judge Bobby Lockhart in the 102nd District Court of Bowie
                     County, Texas. (CR 130).

Pleas:               Anthony Wilson, Jr. (Wilson) entered a plea of “not guilty” to the
                     charge against him. (RR 20:11)(CR 130).

Trial disposition:   The jury found Wilson guilty. (CR 90). Additionally, the jury
                     found both the enhancement allegations true. (CR 94,96). The
                     Court adjudicated Wilson guilty. (CR 127,130). The trial court
                     sentenced Wilson to life without parole. (CR 130).




                                           6
                                ISSUE PRESENTED

Sole Issue: The guilt-innocence jury charge was fundamentally defective because it
            directed the jury to find Wilson guilty of capital murder based upon an
            underlying felony murder, rather than an underlying (regular) murder,
            for which he was indicted.




                                         7
                         STATEMENT OF ORAL ARGUMENT

      Oral argument might assist the court in determining whether the error

contained in the guilt-innocence charge was egregious in light of the legal theories

presented and the evidence at trial.




                                           8
                               STATEMENT OF FACTS

      The State contends that four young men, Marshall Vallejos and his half-

brother, Jaquelle Rogers, Jailon Gamble, and the Defendant, Anthony Wilson were

driving around Texarkana in Gamble’s vehicle and smoking marijuana. (RR

20:111,207,211-212;21:18-19). Wilson possessed a .380 handgun. (RR 20:214). They

stopped and obtained an additional revolver handgun. (RR 21:20-22). Wilson saw the

victim drive by in a vehicle with large rims. (RR 21:23). Wilson instructed the driver,

Gamble, to follow the victim’s vehicle, saying the victim had money. (RR 20:213,216-

217;21:24,27). They followed the victim to a Dollar Store. (RR 20:217;21:24,84).

There, Vallejos and Rogers exited the vehicle to rob the victim. (RR 20:219-221;

21:25). However, Vallejos encountered his mother and aborted the robbery attempt.

(RR 20:221;21:84). Regardless, they followed the victim to an area across the street

where the victim stopped his car to wait for his children to get off a school bus. (RR

20:222-225). Vallejos, Rogers and Wilson exited their vehicle. (RR 20:226;21:29).

Wilson and Vallejos were both armed. (RR 21:37). Wilson approached the victim’s

passenger side window to ask for a lighter for his marijuana cigarette, while Vallejos

approached the driver’s side window. (RR 20:222-226). Wilson leaned in the

passenger’s side window and shot the victim four times. (RR 20:124,208). Wilson left

the marijuana cigarette in the vehicle. (RR 20:71). The victim exited his vehicle and

was shot again by Vallejos who fired twice. (RR 20:129,208). The victim was shot a

total of six times, (RR 20:106), causing eight wounds. (RR 20:139). The victim died as

a result. (RR 20:161). During the attack, Wilson also shot Vallejos in his knee. (RR


                                           9
20:108,131; 21:33,73).

      It is undisputed that Vallejos was arrested at Wadley hospital where he was

being treated for the gunshot wound to his knee. (RR 20:230-231). Gamble turned

himself in to police. (RR 21:16). Rogers turned himself in to police. (RR 21:78,39).

Finally, Wilson was apprehended in Tennessee. (RR 21:68,80).




                                          10
                           SUMMARY OF THE ARGUMENT

Sole Issue: The guilt-innocence jury charge was fundamentally defective because it
            directed the jury to find Wilson guilty of capital murder based upon an
            underlying felony murder, rather than an underlying (regular) murder,
            for which he was indicted.


      Although the guilt-innocence charge contained definitions of capital murder,

felony murder and robbery, it did not include a definition of (regular) murder. This is

error because the charge left the jury with the impression Wilson could be convicted

of capital murder based upon an underlying felony murder, rather than an underlying

(regular) murder for which Wilson was indicted. Such error was egregious

fundamental error because whether Wilson was guilty of an underlying (regular)

murder, or just felony murder was really the only potential fact issue.




                                           11
                                      ARGUMENT

Sole Issue: The guilt-innocence jury charge was fundamentally defective because it
            directed the jury to find Wilson guilty of capital murder based upon an
            underlying felony murder, rather than an underlying (regular) murder,
            for which he was indicted.


      Although the guilt-innocence charge contained definitions of capital murder,

felony murder and robbery, it did not include a definition of (regular) murder. This is

error because the charge left the jury with the impression Wilson could be convicted

of capital murder based upon an underlying felony murder, rather than an underlying

(regular) murder for which Wilson was indicted. Such error was egregious

fundamental error because whether Wilson was guilty of an underlying (regular)

murder, or just felony murder was really the only potential fact issue.



                                 Preservation of Error

      To preserve a complaint for appellate review, a party must generally have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling, if they are not apparent from the context of

the request, objection, or motion. See Tex. R. App. P. 33.1(a). More specifically, to

preserve error relating to a jury charge, there must either be an objection or a

requested charge. Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—Houston [1st

Dist.] 2003, pet. dism'd). Here, there was no objection to the jury charge.

      However, error which is based upon an absolute right or prohibition need not

be preserved. Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993)(discussing three


                                           12
types of rights); see also Garcia v. State, 149 S.W.3d 135, 144 (Tex. Crim. App. 2004).

Such error is often called fundamental error. See e.g. Brumit v. State, 206 S.W.3d 639

(Tex. Crim. App. 2006). Jury charge error rises to the level of fundamental error only

if the charge contains error resulting in egregious harm. See Almanza v. State, 686

S.W.2d 157 (Tex Crim. App. 1985). Accordingly, with regard to fundamental charge

error the issues of preservation, the standard of review and harm analysis are all tied

together into a single analysis. See Almanza v. State, 686 S.W.2d 157 (Tex Crim. App.

1985). As argued below under the “Harmful Error” section, this error was egregious

and, therefore, fundamental error.



                                  Standard of Review

      The standard of review for charge error was established in Almanza. Almanza v.

State, 686 S.W.2d 157 (Tex Crim. App. 1985). Such review is de novo. Almanza v. State,

686 S.W.2d 157 (Tex. Crim. App. 1985). Review is not limited to just one part of the

charge standing alone. Selvage v. State, 680 S.W.2d 17, 20 (Tex. Crim. App. 1984). The

meaning of a jury charge "should be taken from the whole charge, not just from a

certain few instructions read in isolation." Plata v. State, 926 S.W.2d 300, 302 (Tex.

Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex.

Crim. App. 1997). In determining whether the inclusion of a theory unsupported by

the evidence in the charge is reversible error, an appellate court should review alleged

jury-charge error in two steps: first, it should determine whether error exists; if error

exists, it should then review for harm. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.


                                            13
App. 2005); Swearingen v. State,270 S.W.3d 804, 808 (Tex. App.—Austin 2008, pet.

ref'd).



                                   Law and Application

          Although the guilt-innocence charge contained definitions of capital murder,

felony murder and robbery, it did not include a definition of (regular) murder. This is

error because the charge left the jury with the impression Wilson could be convicted

of capital murder based upon an underlying felony murder, rather than an underlying

(regular) murder for which Wilson was indicted. Such error was egregious

fundamental error because whether Wilson was guilty of an underlying (regular)

murder, or just felony murder was really the only potential fact issue.

          The court must provide the jury with a written charge that sets forth the law

applicable to the case. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Reeves v.

State, 420 S.W.3d 812, 818 (Tex. Crim. App. 2013). Wilson was indicted with two

offenses. Count 1 was an allegation of capital murder, based upon an underlying

(regular) murder during the course of robbery. (CR 31). Count 2 was an allegation of

felony murder, based upon a death during the course of a robbery. (CR 31).

          Here, the guilt-innocence charge, in section 1, legally defined the offenses

involved. (CR 120). It specifically read as follows:

                 Our law provides that a person commits the offense of murder if
          commits or attempts to commit a felony, other than manslaughter, and
          in the course of and in furtherance of the commission or attempt, he
          commits or attempts to commit an act clearly dangerous to human life
          that causes the death of an individual.
                 Our law provides that murder, however, is capital murder when

                                              14
      the person intentionally commits the murder in the course of
      committing or attempting to commit the offense of robbery.
              Our law provides that a person commits the offense of robbery
      if, in the course of committing theft and with intent to obtain and
      maintain control of property of another, he intentionally or knowingly
      causes bodily injury to another.

(CR 120).

      Thus, in the first sentence of section 1, the guilt-innocence charge defined

felony murder, as alleged in Count 2 of the indictment. Additionally, in the third

sentence of section 1, the guilt-innocence charge defined robbery which was an

underlying felony required for capital murder. Finally, in the second sentence of

section 1, the guilt-innocence charge defined capital murder pursuant to Texas Family

Code section 19.03. However, that definition of capital murder summarily referenced

(regular) murder. (CR 120); see also Tex. Pen. Code Ann. § 19.03 (West Supp. 2016).

Murder is legally defined as “intentionally or knowingly causes the death of an

individual.” Tex. Pen. Code Ann. § 19.02 (West 2011). However, the definition of

(regular) murder was not included in the definition of capital murder or generally in

the definition section of the guilt-innocence charge.

      Thus, reading the charge definitions as a whole leaves the jury with the

incorrect elements of the offense as Wilson was indicted. That is to say, Wilson was

indicted in Count 1 for capital murder, based upon an underlying (regular) murder

during the course of robbery. (CR 31). However, reading the definitions portion of

the charge, the jury was left with the impression that Wilson is guilty of capital

murder if he committed murder during the course of robbery, based upon sentence

two of section 1. The jury would then conclude that the murder underlying the

                                           15
capital murder is defined directly above in the first sentence of section 1 as follows:

              Our law provides that a person commits the offense of murder if
       commits or attempts to commit a felony, other than manslaughter, and
       in the course of and in furtherance of the commission or attempt, he
       commits or attempts to commit an act clearly dangerous to human life
       that causes the death of an individual.

(CR 120).

       The application portion of the guilt-innocence charge was correct. Such a fact

does not correct an error in the charge, although it does mitigate against a finding that

error in the abstract portion of the jury charge was egregious. See Medina v. State, 7

S.W.3d 633, 640 (Tex. Crim. App. 1999).

       Therefore, murder, which is a required element of capital murder in this case as

Wilson was indicted, was omitted from the definitions section of the guilt-innocence

charge. Accordingly, reading the guilt-innocence jury charge as a whole, the jury

would have concluded that they should find Wilson guilty of capital murder if they

found that Wilson committed felony murder during the course of robbery. However,

the indictment alleged that Wilson had committed capital murder based upon

(regular) murder during the course of robbery. Accordingly, error exists in the charge

and the first step in the charge-error analysis is satisfied.



                                      Harmful Error

       An error must affect the substantial rights of the accused to be harmful. See

Tex. R. App. P. 44.2(b). A "substantial right" is affected when the error had a

substantial and injurious effect or influence in determining the jury's verdict. King v.


                                             16
State, 953 S.W.2d 266 (Tex. Crim. App. 1997) (citing Tex. R. App. P. 44.2(b)).

However, when arguing fundamental error in a criminal charge, the standard harmful

error analysis is inapplicable. See Almanza v. State, 686 S.W.2d 157 (Tex Crim. App.

1985).

         If the error is not properly preserved in a criminal charge, then a showing of

egregious harm is required for reversal. Id. Errors resulting in egregious harm are

those that affect the "[v]ery basis of the case, those depriving the defendant of a

valuable right, or those that vitally affect a defensive theory." Druery v. State, 225

S.W.3d 491, 504 (Tex. Crim. App. 2007). "Egregious harm is a difficult standard to

prove and such a determination must be done on a case-by-case basis." Hutch v. State,

922 S.W.2d 166, 172 (Tex. Crim. App. 1996). The appellate court should consider (1)

the entire jury charge, (2) the state of the evidence, including the contested issues and

the weight of the probative evidence, (3) the parties' arguments, and (4) any other

relevant information revealed by the record of the trial as a whole. Allen v. State, 253

S.W.3d 260, 264 (Tex. Crim. App.2008).

         As discussed above, the definitions portion of the charge contained definitions

of felony murder, capital murder and robbery. However, the charge omitted a

definition of (regular) murder, which was error. Additionally, such error was

egregious because reading the charge as a whole left the jury with the incorrect

impression that Wilson could have been guilty of capital murder, based upon

committing an act dangerous to human life during the course of robbery, rather than

murder in the course of robbery.


                                             17
      The guilt-innocence charge, in section 1, legally defined the offenses involved.

(CR 120). It specifically read as follows:

              Our law provides that a person commits the offense of murder if
      commits or attempts to commit a felony, other than manslaughter, and
      in the course of and in furtherance of the commission or attempt, he
      commits or attempts to commit an act clearly dangerous to human life
      that causes the death of an individual.
              Our law provides that murder, however, is capital murder when
      the person intentionally commits the murder in the course of
      committing or attempting to commit the offense of robbery.
              Our law provides that a person commits the offense of robbery
      if, in the course of committing theft and with intent to obtain and
      maintain control of property of another, he intentionally or knowingly
      causes bodily injury to another.

(CR 120). Thus, the definition of murder was omitted after the first paragraph and

before the second paragraph. The second paragraph defines capital murder as

including murder. The first paragraph defines felony murder. Accordingly, reading

the charge as a whole, the jury is left with the incorrect impression capital murder can

be based upon an underlying felony murder.

      The harm of the error in charge in this case was particularly significant in light

of the facts of this case. That is, there was strong evidence that the victim was killed

during the course of a planned robbery. However, there was no evidence of any

prior intent to murder the victim.

      Here, two of the four actors testified at trial. (RR 20:203(Rogers)

21:11(Gamble)). Their testimony was supported by several witnesses corroborating

portions of their testimony. Together, this evidence established the storyline.

      Four young men, Marshall Vallejos and his half-brother, Jaquelle Rogers, Jailon

Gamble, and the Defendant, Anthony Wilson were driving around Texarkana in

                                             18
Gamble’s vehicle and smoking marijuana. (RR 20:111,207,211-212;21:18-19). Wilson

possessed a .380 handgun. (RR 20:214). They stopped and obtained an additional

revolver handgun. (RR 21:20-22). Wilson saw the victim drive by in a vehicle with

large rims. (RR 21:23). Wilson instructed the driver, Gamble, to follow the victim’s

vehicle, saying the victim had money. (RR 20:213,216-217;21:24,27). They followed

the victim to a Dollar Store. (RR 20:217;21:24,84). There, Vallejos and Rogers exited

the vehicle to rob the victim. (RR 20:219-221; 21:25). However, Vallejos encountered

his mother and aborted the robbery attempt. (RR 20:221;21:84). Regardless, they

followed the victim to an area across the street where the victim stopped his car to

wait for his children to get off a school bus. (RR 20:222-225). Vallejos, Rogers and

Wilson exited their vehicle. (RR 20:226;21:29). Wilson and Vallejos were both armed.

(RR 21:37). Wilson approached the victim’s passenger side window to ask for a

lighter for his marijuana cigarette, while Vallejos approached the driver’s side

window. (RR 20:222-226). Wilson leaned in the passenger’s side window and shot

the victim four times. (RR 20:124,208). Wilson left the marijuana cigarette in the

vehicle. (RR 20:71). The victim exited his vehicle and was shot again by Vallejos who

fired twice. (RR 20:129,208). The victim was shot a total of six times, (RR 20:106),

causing eight wounds. (RR 20:139). The victim died as a result. (RR 20:161). During

the attack, Wilson also shot Vallejos in his knee. (RR 20:108,131; 21:33,73).

      Thus, there was substantial evidence that the four actors were present at the

scene of the crime, that two were armed with handguns and that there was intent to

rob the victim. However, there was no evidence of any intent to murder the victim.


                                           19
Thus, there was strong evidence of felony murder, but very weak, if any, evidence of

murder, with its heightened intent requirement. As such, the underlying facts play

perfectly into the charge error. It is entirely possible that, based upon the definitions

error in the charge, the jury incorrectly believed that felony murder could support a

finding of capital murder. Such error could have a determinative result in light of this

culpability fact issue.

       Admittedly, the application portion of the charge is correct. It reads as

follows:

       Now, if you find from the evidence beyond a reasonable doubt that on
       or about the 29th day of March, 2016, in Bowie County, Texas, the
       defendant, ANTHONY WILSON, JR., did then and there, intentionally
       cause the death of an individual, CASEY SMITH, by shooting CASEY
       SMITH with a gun, and the defendant, ANTHONY WILSON, JR. was
       then and there in the course of committing or attempting to commit the
       offense of robbery, then you will find the defendant guilty of Capital
       Murder as charged in the indictment.

(CR 123). This could have mitigated the harm of the incorrect definition, but was

insufficient to overcome the particularized harm in this case.




                                           20
                                       PRAYER

      WHEREFORE, premises considered, Anthony Wilson, Jr. respectfully

requests that this conviction be reversed and judgment rendered in his favor, that the

conviction be reversed and a new trial granted, or for such other and further relief to

which Appellant may be entitled.




                                        Respectfully Submitted,

                                        Miller, James, Miller & Hornsby, L.L.P.

                                        By:______________________________
                                           Troy Hornsby
                                           Texas Bar Number 00790919

                                        1725 Galleria Oaks Drive
                                        Texarkana, Texas 75503
                                        troy.hornsby@gmail.com
                                        903.794.2711, f. 903.792.1276

                                        Attorney for Appellant Anthony Wilson, Jr.




                                          21
                             CERTIFICATE OF SERVICE

This is to certify that on May 15, 2018, a true and correct copy of the above and
foregoing Appellant’s Brief has been forwarded by U.S. mail on all counsel of record
and interested party listed below:

State’s Attorney                               Trial Court Judge
Kelley Crisp                                   Honorable Bobby Lockhart
Bowie County Dist. Attorney’s Office           102nd District Court
601 Main Street                                100 N. State Line Ave.
Texarkana, Texas 75501                         Texarkana, Texas 75501

Appellant                                      Defendant’s Trial Attorney
Anthony Wilson, Jr.                            Derric S. McFarland
TDC #02174331                                  McFarland Law Office
Allred Unit                                    P.O. Box 1048
2101 FM 369 N.                                 Texarkana, Texas 75504-1048
Iowa Park, Texas 76367

                                               ____________________________
                                               Troy Hornsby




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                          CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned counsel certifies
that, exclusive of the exempted portions in Texas Rule of Appellate Procedure
9.4(i)(1), this brief contains 2,595 words (less than 15,000), based upon the word
count of the WordPerfect program used to prepare the document.


                                       _______________________________
                                       Troy Hornsby




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