               PD-0613-15
                    No. 12-14-00184-CR




         IN THE TWELFTH COURT OF APPEALS
                      TYLER, TEXAS



                  DEMETRIUS KELLUM
                                                       RECEIVED JM
                                   Appellant,         °^*<»MfiX^
                                                         JW 29 2015
                              v.



                  THE STATE OF TEXAS


                                   Appellee




On-Appeal from the 114th District Court of Smith County, Texas
                 Trial Cause No. 114-1918-13




                                             FILED IN
         ORAL ARGUMENT NOT REQUESTED COURT OF CRIlVliNAL APPEALS


                          Austin Reeve Jackson
                          Texas Bar No. 24046139          Ab8i Acosta> Cierk
                           112 East Line, Suite 310
                          Tyler^ TX 75702
                          Telephone: (903) 595-6070
                          Facsimile: (866)387-0152
                     IDENTITY OF PARTIES AND COUNSEL



Attorney for Appellant

Appellate Counsel:

Austin Reeve Jackson
112 East Line,.Suite 310
Tyler, TX 75702      •<

Trial Counsel:


Melvin Thompson
2108 S. Wall Ave.
Tyler, TX 75701


Attorney for the State

Mr. Michael West
Smith County ADA
100 N.Broadway
Tyler, TX 75702




                                    u
                              No. 12-14-00184-CR




                   IN THE TWELFTH COURT OF APPEALS
                                TYLER, TEXAS



                           DEMETRIUS KELLUM


                                            Appellant,

                                       v.



                           THE STATE OF TEXAS


                                            Appellee




        On Appeal from the 114th District Court of Smith County, Texas
                          Trial Cause No. 114-1918-13




TO THE HONORABLE JUSTICES OF THE COURT:


      COMES NOW, Demetrius Kellum, by and through his attorney of record,

Austin Reeve Jackson, and files this his brief pursuant to the Texas Rules of Ap

pellate Procedure, and would show the Court as follows:
TEXAS COURTS OF APPEAL:


Allen v. State,
  249 S.W.3d 680 (Tex.App.—Austin 2008)   12


STATUTES:


Tex. Pen. Code § 9.31                     4,10

Tex. Pen. Code § 9.32                     4
                             TABLE OF CONTENTS


 IDENTITY OF PARTIES AND COUNSEL                                   ii

^ TABLE OF CONTENTS                                               iii

v INDEX OF AUTHORITIES                                            iv
Statement of the case                                              2
n issues presented                                                 2
x statement of facts                                               2
\ summary of the argument                                          4
vargument                                                          4

   i.   t h e evidence is l e g a l l y insufficient t o suppor
        t h e jury's r e j e c t i o n o f self-defense            4


        Standard of Review                                         5


        Evidentiary Summary                                        6

        Diane Marvels                                              6


        Ruby Lowerie                                               8

        Windell Williams                                           9


        Other Evidence                                            10


        Application of Law to Facts                               10

 CONCLUSION AND PRAYER                                            12

 CERTIFICATE OF SERVICE                                           13

 CERTIFICATE OF COMPLIANCE                                        13




                                      in
                            INDEX OF AUTHORITIES



  UNITED STATES SUPREME COURT:


* Jackson v. Virginia,
    443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)   5


  TEXAS COURT OF CRIMINAL APPEALS:


\ Brooks v. State,
    323 S.W.3d 893 (Tex.Crim.App. 2010)                  11 —

  Connor v. State,
    67 S.W.3d 192 (Tex.Crim.App. 2001)                   6

  Gollihar v. State,
    46 S.W.3d 243 (Tex.Crim.App. 2001)                   12

  Hooper v. State,
   214 S.W.3d 9 (Tex.Crim.App. 2007)                     5

  Malik v. State,
    953 S.W.2d 234 (Tex.Crim.App. 1997)                  5

  Roberts v. State,
    273 S.W.3d 322 (Tex.Crim.App. 2008)                  12

  Sanders v. State,
    119 S.W.3d 818 (Tex.Crim.App. 2003)                  11 -

^ Saxton v. State,
    804 S.W.2d 910 (Tex.Crim.App. 1991)                  5, 11

^Zulianai v. State,
  97 S.W.3d 589 (Tex.Crim.App. 2003)                     5 -




                                          IV
                         STATEMENT OF THE CASE


      Demetrius Kellum appeals his conviction and sentence for the offense of ag

gravated assault. (I CR 88). Mr. Kellum was indicted for this offense in Decem

ber in the 114th District Court of Smith County, Texas. (I CR 1). To this charge

he entered a plea of "not guilty" and proceeded to trial by jury. (I CR 88). In June

of 2014, a guilty verdict was returned against him and sentence imposed at con

finement for life. (I CR 89). Sentence was pronounced on 5 June and notice of

appeal then timely filed. (I CR 89, 95).

                               ISSUE PRESENTED


      L      THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUP
             PORT THE JURY'S REJECTION OF SELF-DEFENSE.


                            STATEMENT OF FACTS


      On a fall evening in November of 2013, Appellant, Mr. Demetrius Kellum,

was at home with his girlfriend Ruby Lowerie. (IX RR 123). They were joined by

Diane Marvels, a friend of Ms. Lowerie, who also brought her boyfriend Windell

Williams the alleged victim in this case. (IX RR 56). Mr. Williams arrived at the

gathering already having had a fair amount of alcohol and he continued to drink

while at Ms. Lowerie's home. (IX RR 56, 59).

      The group decided to go to a local club where Mr. Williams again continued

to drink. (IX RR 60, 63). They weren't there long before Mr. Williams' intoxicat

ed behavior drew the attention of club staff who attempted to enlist the help of Mr.
Kellum in calming Mr. Williams down. (IX RR 65, 132, 171). Unfortunately, Mr.

Kellum was unsuccessful and Mr. Williams was forcefully removed from the club

for misbehaving and "fighting with everybody." (IX RR 131, 171).

      Having come in the same car the whole group left after Mr. Williams was

kicked-out. (IX RR 137-38). Unfortunately, Mr. Williams continued his aggres

sive behavior in the car this time directing it at Mr. Kellum. (Id.). They had not

driven far when, at a stop sign, both Mr. Kellum and Mr. Williams exited the vehi

cle and started fighting. (IX RR 138-39). The fight didn't last long and both men

returned to the vehicle. (IX RR 80). Mr. Williams continued to act in an irate

manner as they drove home and he actually attempted to continue the fight after

Mr. Kellum arrived home, exited the vehicle, and went into his house. (IX RR

168). After Mr. Williams eventually calmed down, Ms. Marvels noticed the extent

of the injuries he had received in the fight that included several cuts from a small

knife Mr. Kellum had employed. (IX RR 83).

 n) Although Mr. Williams' initially did not want the involvement of law en-

forcement and reiterated at trial that the underlying situation was very much one of

mutual combat, Mr. Kellum was nonetheless charged with the offense of aggravat

ed assault based on the incident. (I CR 1). To this charge he entered a plea of "not

guilty" and proceeded to trial by jury. (ICR 88). In June of 2014, a guilty verdict

was returned against him and sentence imposed at confinement for life. (I CR 89).
Sentence was pronounced on 5 June and notice of appeal then timely filed. (I CR

89, 95).

                          SUMMARY OF ARGUMENT


      Where the overwhelming evidence at trial, even when viewed in the light

most favorable to the State, leads to the conclusion that a defendant has acted in

self defense, a guilty verdict is necessarily based on legally insufficient evidence

and due process requires that an appellate court reverse the judgment of conviction

and render a judgment of acquittal.

                                   ARGUMENT


      L      THE    EVIDENCE          IS   LEGALLY     INSUFFICIENT         TO
             SUPPORT        THE       JURY'S    REJECTION         OF    SELF-
             DEFENSE


      Texas law permits a person to use force against another when it is reasona

bly necessary to do so to protect the person or that person's home and property.

Tex. Pen. Code § 9.31. This includes the use of deadly force when permissible.

Tex. Pen. Code § 9.32. Because the record in this case establishes that Mr. Kel

lum acted in accordance with his legal right to self-defense, the jury erred in reject-

ing his claim of self-defense and the conviction returned rests on legally insuffi-

cient evidence.
      Standard of Review


      A verdict finding a defendant to be guilty of a criminal offense carries with

it an implicit finding against any defensive issues raised.     Zidiani v. State, 97

S.W.3d 589, 594 (Tex.Crim.App. 2003). When a defendant challenges such a re

jection of his claim of self-defense, an appellate court looks to whether, after view

ing the record in the light most favorable to the prosecution, any rational trier of

fact could have found against the defendant on the issue of self-defense beyond a

reasonable doubt. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991).

While this review considers the quality of the evidence produced, it also defers to

the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts."

Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007) (citing Jackson v. Virgin

ia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

      Such challenges are made by considering the evidence presented against a

hypothetically correct jury charge, ty) Malik v. State, 953 S.W.2d 234, 240
(Tex.Crim.App. 1997). A hypothetically correct jury charge is one that "sets out

the law, is authorized by the indictment, does not unnecessarily increase the State's

burden of proof or unnecessarily restrict the State's theories of liability, and ade

quately describes the particular offense for which the defendant was tried." Id. at

240. In making this review, a court should consider the entirety of the evidence to
determine whether any rational trier of fact could have found against the defendant

on the issue of self-defense beyond a reasonable doubt.         Conner v. State, 67

S.W.3d 192, 197 (Tex.Crim.App. 2001).

      Evidentiary Summary

      In this case, there were essentially four potential witnesses to the alleged ag

gravated assault: Diane Marvels, Ruby Lowerie, Windell Williams, and Mr. Kel

lum. Importantly, all who testified gave similar testimony regarding the mutual

combat nature of the incident. (IX RR 70, 74-86, 138-39: X RR 37, 44, 47).

      Diane Marvels


      Ms. Marvels, the girlfriend of the alleged victim in this case, was the first of

the four to testify. (IX RR 51). Ms. Marvels testified that on the date of this inci

dent she and her friend, Ruby Lowerie, got together at Ms. Lowerie's home. (IX

RR 56). Mr. Williams, the alleged victim, accompanied Ms. Lowerie and through

her met Mr. Kellum. (IX RR 59).

      Before arriving at Ms. Lowerie's home Mr. Williams and Ms. Marvels were

drinking; as to how much, the amount varied by each witness. (IX RR 56). Once

they arrived, both Ms. Marvels and Mr. Williams continued to drink. (IX RR 59).

Eventually the group decided to leave the house and go to a nearby club called Ba

nana Tree. (IX RR 60). At the club the group once again had more alcohol. (IX

RR 63).
      Not long after they arrived Mr. Williams' behavior got him kicked-out of the

club. (IX RR 65). As a result, the whole group was forced to leave as they had

come in one car. (IX RR 68). Almost immediately Mr. Williams became verbally

irate with Mr. Kellum and an argument ensued.       (IX RR 69).     When the car

stopped at a stop sign both Mr. Williams and Mr. Kellum "jumped out of the car"

and began fighting. (IX RR 70). Ms. Marvels was unable to recall who exited the

car first and did not see who started swinging first. (IX RR 74-76). She was able

to remember though that, at least at one point, Mr. Kellum was on top of Mr. Wil

liams. (IX RR 77-78).

      Fortunately, a man who happened to be in the area was able to fairly quickly

break-up the scuffle. (IX RR 79). The fighting stopped, at least for the moment,

both men got back in the car and continued their verbal argument. (LX RR 80).

When they arrived back at Ms. Lowerie's home though Mr. Williams pursued Mr.

Kellum in an attempt to continue the argument. (IX RR 81). After exchanging

words for a moment or two, Mr. Kellum went inside his house and Mr. Williams

eventually returned to the car. (IX RR 82-83). It was only then that Ms. Marvels

noticed the extent of Mr. Williams' injuries. (IX RR 83). Throughout it all Ms.

Marvels noted that Mr. Williams was behaving as tough he had had "a little bit too

much to drink," an opinion shared by the EMT who eventually examined Mr. Wil

liams. (IX RR 46, 99). Additionally, Ms. stated noted that it was Mr. Kellum who
attempted to abandon the fight while Mr. Williams sought to continue it. (IX RR

109).

        Ruby Lowerie

        Much of Ms. Lowerie's testimony was similar to that of Ms. Marvels but

Ms. Lowerie was able to add that part of what had instigated Mr. Williams' anger

at Mr. Kellum was Mr. Kellum's attempts to get Mr. Williams to behave better

while the group was at the club. (IX RR 131). Moreover, unlike Ms. Marvels, Ms.

Lowerie had been present when Mr. Williams was removed from the club for

"fighting with everybody." (IX RR 171). Again, Mr. Kellum had attempted to

calm him down and get him to relax and improve his behavior. (IX RR 132).

        This dynamic continued when the group got in their car to leave the club and

Mr. Williams became irate with Mr. Kellum, calling him a "bitch, hoe, etc." (IX

RR 136). In response, Mr. Kellum once more remained calm. (IX RR 137-38).

Further, according to Ms. Lowerie, it was Mr. Williams who then first exited the

car at the stop sign and then opened Mr. Kellum's door so that he could pull Mr.

Kellum out of the car and physically attack him. (IX RR 138-39, 165).

        Like Ms. Marvels, Ms. Lowerie reiterated that Mr. Williams was intoxicated

and the only person in the group whose behavior was such that they were kicked

out of the club. (IX RR 153, 159). And, once more, she noted that it was Mr. Wil-
Hams who, when Mr. Kellum attempted to leave the group and enter his home,

continued to try and instigate another physical altercation. (IX RR 168).

      Windell Williams ^

      Mr. Williams began his testimony by conceding that he had been drinking

throughout the day of the incident. (X RR 26). In fact, he testified that he could

not remember parts of that evening because of the amount of alcohol he had con

sumed. (X RR 33-34). Specifically, he did not remember any argument at the Ba

nana Tree with Mr. Kellum, being asked to leave the club, or what the reason was

that he had been removed from the club. (IX RR 34, 50). He did, however, claim

to be able to remember that it was Mr. Kellum who had begun the initial argument

as Mr. Kellum was upset that the group had been forced to leave the club early be

cause of Mr. Williams. (X RR 37). According to Mr. Williams, this argument be

came "heated" and when the vehicle stopped at the stop sign both he and Mr. Kel

lum got out of the car. (X RR 37).

      I don't recall [who got out first]. I mean, you know, when someone is
      in an altercation and doors open, I don't know who opened those
      doors first. I don't know who punched - I just know we had an alter
      cation at the stop sign. We both got out of the car and we both had an
      altercation, two men; I know that.

(X RR 37). Importantly, Mr. Williams was clear that the only reason he got out of

the vehicle was so that he could engage in a physical altercation with Mr. Kellum:
         ... I mean, that's - that's what I got out of the car for, to fight. That's
         what I got out of the car for, to fight. ... That's what I got out of the
         car to do.


(Id.).

         When later asked by law enforcement about the assault, Mr. Williams initial

ly denied knowing who had assaulted him and made it clear, perhaps because of a

guilty conscious, that he did not want law enforcement involved. (X RR 47, 121).

         Other Evidence


         In addition to the foregoing, much of which indicated that Mr. Kellum was

acting in self-defense and merely "trying to push Mr. Williams off of him because

Mr. Williams was really drunk" (IX RR 165), the State did present evidence that

Mr. Kellum had little to no injury while Mr. Williams' injuries were extensive.

(IX RR 35-39; X RR 139). This, the State argued, supported the idea that Mr. Kel

lum had "brought a knife to a fistfight and, even if he had initially acted in self-

defense he had unjustifiably increased the level of violence in the altercation.

         Application of Law To Facts

         Recognizing as fundamental the right to protect one's person, the Texas

Legislature has codified the right to self-defense against an aggressor's use of force

so long as the actor did not provoke the initial conduct and was not himself other

wise engaged in criminal activity. Tex. Pen. Code § 9.31(a)(2),(3). This descrip

tion exactly fits Mr. Kellum's position at the time of the underlying altercation.

                                             10
The record is clear that Mr. Williams, who was intoxicated, had bee aggressive

with staff in the Banana Tree and had directed some of his anger at being removed

from the club toward Mr. Kellum who had been attempting to be a calming influ

ence on Mr. Williams. (IX RR 131-32, 171). Moreover, at worst, the evidence

showed that the decision to engage in an altercation was one that was simultaneous

between Mr. Kellum and Mr. Williams. (X RR 37). That Mr. Williams was the

primary aggressor though is the only reasonable deduction from the fact that all

parties testified that it was Mr. Williams who repeatedly attempted to continue the

altercation and who pursued Mr. Kellum even after Mr. Kellum entered his own

home. (IX RR 81, 168).

      Thus, even in the light most favorable to the verdict, the evidence is legally

insufficient to support the conclusion that Mr. -S*»rth-acted in any way other than in

self-defense. See Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003)

(standard of review); but see Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.

2010) (an appellate court will not reweigh evidence but will defer to the jury's res

olution of conflicts in the same); Saxton v. State, 804 S.W.2d 910, 912

(Tex.Crim.App. 1991) ("[F]or an appellate court to find as a matter of law that the

defendant acted in self-defense, the evidence must be uncontradicted and no issue

thereon presented for the [factfinder's] determination.").



                                          n
  \   The court of Criminal Appeals has held that, "Due process requires the pros

ecution to prove beyond a reasonable doubt every fact necessarv to constitute the..

offense alleged." Roberts v. State, 273 S.W.3d 322, 329 (Tex.Crim.App. 2008).

The role of an appellate court is to safeguard this due process right. Allen v. State,

249 S.W.3d 680, 704 (Tex.App.—Austin 2008, no pet.) (citing Gollihar v. State,

46 S.W.3d 243, 245-46 (Tex.Crim.App. 2001)). Acting in this capacity, because

the record before the Court fails to establish a basis from which the jury should

have reasonably rejected Mr. Kellum's claim of self-defense, the Court should re

verse the judgment before it and render a judgment of acquittal.

                         CONCLUSION AND PRAYER


      WHEREFORE, PREMISES CONSIDERED, counsel prays that the Court,

because the evidence is legally insufficient to support the jury's implied finding

against Mr. Kellum regarding self defense, that the Court reverse the underlying

judgment and render a judgment of acquittal.

                                               Respectfully submitted,


                                               Isi Austin Reeve Jackson
                                               Texas Bar No. 24046139
                                               112 East Line, Suite 310
                                               Tyler, TX 75702
                                               Telephone: (903) 595-6070
                                               Facsimile: (866)387-0152




                                          12
                                     CERTIFICATE OF SERVICE


                I certify that a true and correct copy of this brief was delivered to counsel for

          the State by facsimile on this the 24th day of November 2014.



                                                         Is/ Austin Reeve Jackson



                                CERTIFICATE OF COMPLIANCE


                I certify that this document complies with the requirements of Rule 9.4 and

          consists of 2,748 words.

'                                                        /s/ Austin Reeve Jackson




    IsOttS SO L^J^i^Joi 44i#-f if sk)ufd aJd^ ttrtUL £Ul<^ lo££/J

    "Thl, ^/W£/-f> £rtbl Could bL xV£Ul*ld oA. £ frtiS-Pi&z! ^rOf^j
        -Mfc 'jpJ^^ocJiyic-ffOrJ &P /l£^J £.\JiAi/^CLn' -TO pfo\JL>
jJZ-P Po^sibk, ^// V^^ ^/ 4sja CrfSl^




                                                    13
