                                                                                   ACCEPTED
                                                                               06-15-00082-CR
                                                                    SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                          8/17/2015 4:00:46 PM
                                                                              DEBBIE AUTREY
                                                                                        CLERK


               IN THE COURT OF APPEALS FOR THE
            SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                           FILED IN
                                                    6th COURT OF APPEALS
                                                      TEXARKANA, TEXAS
FRED DOUGLAS MOORE, JR.      §
                                                    8/17/2015 4:00:46 PM
   APPELLANT                 §
                                                        DEBBIE AUTREY
                             §                              Clerk
    v.                       §            No. 06-15-00082-CR
                             §
THE STATE OF TEXAS,          §
   APPELLEE                  §



                          STATE'S BRIEF

                  FROM THE 196m DISTRICT COURT
                       HUNT COUNTY, TEXAS
                    TRIAL CAUSE NUMBER29,762
          THE HONORABLE J. ANDREW BENCH, JUDGE PRESIDING


                                 NOBLE DAN WALKER, JR.
                                 District Attorney
                                 Hunt County, Texas

                                 Jeff Kovach
                                 Assistant District Attorney
                                 P. 0. Box 441
                                 4th Floor Hunt County Courthouse
                                 Greenville, TX 75403
                                 (903) 408-4180
                                 FAX (903) 408-4296
                                 State Bar No. 24065571
                                         TABLE OF CONTENTS


TABLE OF CONTENTS .................................................................................................... 2

INDEX OF AUTHORITIES ............................................................................................... 3

STATEMENT OF FACTS .............................................................................. 4

SUMMARY OF THE STATE'S ARGUMENTS .............................................................. 5

STATE'S ARGUMENT ...................................................................................................... 5

PRAYER ........................................................................................................................... l2

CERTIFICATE OF SERVICE .......................................................................................... l3




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                                      INDEX OF AUTHORITIES

CASES

Bignall v. State, 887 S.W.2d 21, (Tex.Crim.App.1994) .................................................. 9
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ............................................. 12
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) ................................................ 7-8
Jackson v. Virginia 442 U.S. 307 (1979) ....................................................................... 12
Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998) ................................................. 9
Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005) ............................................. 5-6
Robertson v. State, 871 S.W.2d 701 (Tex.Crim.App.1993) ............................................ 9
Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981) .............................................. 8
Saunders v. State, 913 S.W.2d 564 (Tex. Crim. App. 1995) ........................................... 9
Schweinle v. State, 915 S.W.2d 17 (Tex. Crim. App. 1996) ............................................ 9
Simmons v. State, 109 S.W.3d 469 (Tex.Crim.App.2003) ............................................... 8
Skinner v. State, 956 S.W.2d 532 (Tex.Crim.App.1997) ............................................ 9-10


STATUTES AND RULES

Tex.   Penal Code Sec. 29.091(1) .................................................................................... 7-8
Tex.   Penal Code Sec. 31.03 (Tex. Crim. App. 2010) .................................................. 8,11
Tex.   Rules Evid. 608(a) .................................................................................................... 6
Tex.   Rules Evid. 608(b) .................................................................................................... 5
Tex.   Rules Evid. 609 ........................................................................................................ 6




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                                 Statement of Facts

       The State agrees with Appellant's Statement of the facts with the following

exceptions and additions. First, Appellant contends that Mr. Hernandez, the victim

in the case, testified that as Appellant shook Mr. Hernandez's hand Appellant

reached under the counter and grabbed forty dollars. (R.R. 3. P. 28). That is not

what Mr. Hernandez testified to, he testified that Appellant shook his hand, then

the video played forward several minutes and was stopped, as shown on the

transcript, and then, when Appellant on the video reached under the counter, Mr.

Hernandez was asked what Appellant took and then he replied "He grabbed I

believe it was forty dollars." (R.R. 3. P. 28) I see how Appellant's counsel could

be confused since the record wasn't clear as to the exact time on the video the

questions were relating to and she was not there at the trial.

       Appellant also fails to mention that Mr. Hernandez testified that he felt

"Just a little bit" of pain. (R.R. 3 p. 29). In addition, the video introduced by the

State shows Appellant shoving Mr. Hernandez across the room and grabbing him

by the neck. (State's Exhibit 1). Finally, Appellant left out the fact that the Court

did allow Appellant to put in front of the jury the fact that Mr. Hernandez's

employer, J asmeet Sachdeva, did find not find him a very truthful person. (R.R. 3.

P. 122).




                                                                                        4
                       SUMMARY OF THE ARGUMENT

       Appellant was not denied due process of law or the right to confront his

accusers because whether the victim in this case, Mr. Hernandez, allowed people

to steal from the store in the past, has no relevance as to whether Appellant

committed robbery in this case and was impermissible impeachment evidence

under Rule 608(b) and the Appellant failed to properly preserve error at the trial

court level.

       The Court did not err in failing to give a jury instruction on a lesser

included offense of theft because there is no evidence in the record that the

defendant was guilty only of theft, but not of robbery.

       The evidence is legally sufficient to prove the offense of robbery as there is

evidence to support all of the elements ofthe offense of robbery as defined by the

penal code.


                                    ARGUMENT

                            POINT OF ERROR ONE

       To properly preserve for Appellate Review an error for a Confrontation

Clause violation, the Appellant must put the trial judge on notice as to why the

evidence is admissible. Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005).

Nowhere in the record did Appellant let the trial Court know that he was making

an argument for admissibility based on the Confrontation Clause, the only


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reference to any law in Appellant's argument was "And under the Rules of

Evidence-". (R.R. 3 p.33). When a defendant's objection encompasses

complaints under both the Rules of Evidence and the Confrontation Clause, the

objection is not sufficiently specific to preserve error. Reyna at 179. Therefore,

with regards to Appellant's cross examination of both Mr. Hernandez and Mr.

Sachdeva, Appellant failed to properly preserve error for appeal.

       If the Court does fmd that Appellant properly preserved error for appeal,

Appellant was still allowed to introduce the only evidence that the Rules of

Evidence allow, other than a conviction under Rule 609, and that is an opinion on

truthfulness. Tex. R. Evid. 608(a). Mr. Sachdeva, did find not find him a very

truthful person. (R.R. 3. P. 122).

       Appellant argues that he was not allowed to present his defense of consent,

which has also been raised for the first time on appeal and should be overruled for

the same reasons that his Confrontation Clause should be overruled in that the

defense wasn't preserved for appeal. The mere disputed fact that Mr. Hernandez

let other individuals take things in the past has no bearing or relevance on whether

Appellant thought he had consent to take cash from behind the counter without a

showing that Appellant lmew Mr. Hernandez has allegedly allowed others to take

things in the past. Without that knowledge in Appellant's mind, and there is no

evidence that Appellant himselflmew or thought that Mr. Hernandez had allowed

others to take things in the past, it would not be relevant evidence to begin with.

Therefore, Appellant's first point of error should be overruled.


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                            POINT OF ERROR TWO

       The Court did not err in failing to give a jury instruction on Theft as a lesser

included offense to Robbery. The first step in the lesser-included-offense analysis,

determining whether an offense is a lesser-included offense of the alleged offense,

is a question oflaw. It does not depend on the evidence to be produced at the trial.

It may be, and to provide notice to the defendant must be, capable of being

performed before trial by comparing the elements of the offense as they are

alleged in the indictment or information with the elements of the potential lesser-

included offense. Hall v. State., 225 S.W.3d 524, 535-536 (Tex. Crim. App.

2007). The relevant portion of the Indictment in the present case reads as follows:

        FRED DOUGLAS MOORE, JR., did then and there, while in
        the course of committing theft of property and with intent to
        obtain or maintain control of said property, intentionally,
        knowingly, or recklessly cause bodily injury to ANDRES
        HERNANDEZ by pushing, grabbing, hitting and/or struggling
        with ANDRES HERNANDEZ' leg and arm; (C.R. p. 6)

"In the course of committing theft" means conduct that occurs in an attempt to

cmmnit, during the cmmnission, or in ilmnediate flight after the attempt or

commission of theft." (Tex. Penal Code Sec 29.01(1)). Next the Court is to look

at the statutory elements of the alleged lesser-included offense of Theft. Those are:

       1. The Appellant

       2. Unlawfully

       3. Appropriates property




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       4. With intent to deprive the owner of property (Tex. Penal Code Sec.

           31.03)

The court then determines whether the elements of Theft as defined by statute are

proven by the same or less than all the facts required to prove the alleged greater

charge as it is charged in the indictment. See generally Hall v. State. They are not

here, particularly Theft requires the appropriation of property. (Tex. Penal Code

Sec 31.03). "In the course of committing theft" requires only that an attempt to

commit theft be made and no appropriation is required. (Tex. Penal Code Sec

29.01(1)). In addition, under Texas law, the value ofthe property taken is an

essential element ofthe offense ofTheft. See Simmons v. State, 109 S.W.3d 469,

478-79 (Tex.Crim.App.2003). Since value is not required to be proved for a

Robbery, that is another element that requires more proof for Theft than is

required for Robbery. Therefore, looking at the crime of Robbery as charged and

Theft as defined by statute, it would require more facts to prove the elements of

Theft than it would to prove the elements ofRobbery as charged and Theft is not a

lesser included offense in this case and Point of Error Number Two fails the first

prong of the two prong test established by Hall and should be overruled.

       Even if the court believes Theft is a lesser included offense as a matter of

law under the first prong of the two part lesser-included test established by Hall, in

this case there is no evidence in the record to permit a jury rationally to find that if

the Appellant is guilty, he is guilty only of the lesser-included offense as required

by Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981). Under the second


                                                                                        8
prong, if evidence from any source raises the issue of a lesser included offense, a

charge on that offense is required. Saunders v. State, 913 S.W.2d 564 (Tex. Crim.

App. 1995). The credibility ofthe evidence and whether it conflicts with any

other evidence must not be considered in deciding whether to charge on the lesser

included offense.·Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998). A

"lesser included offense may be raised if evidence either affinnatively refutes or

negates an element establishing the greater offense." Schweinle v. State, 915

S.W.2d 17, 19 (Tex. Crim. App. 1996). There is no evidence in the record that

affirmatively refutes or negates an element establishing the greater offense, in this

case causing bodily injury. "Anything more than a scintilla of evidence is

sufficient to entitle a defendant to a lesser charge." Bignall v. State, 887 S.W.2d

21, 23 (Tex.Crim.App.1994). Although this threshold showing is low, "it is not

enough that the jury may disbelieve crucial evidence pertaining to the greater

offense, but rather, there must be some evidence directly germane to the lesser-

included offense for the finder of fact to consider before an instruction on a lesser-

included offense is warranted." Skinner v. State, 956 S.W.2d 532, 543

(Tex.Crim.App.1997). Accordingly, we have stated that the standard may be

satisfied if some evidence refutes or negates other evidence establishing the

greater offense or if the evidence presented is subject to different interpretations.

Robertson v. State, 871 S.W.2d 701, 706 (Tex.Crim.App.1993).

       Appellant claims that there is no evidence in the record to show that

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


                                                                                        9
interaction that led to Appellant's conviction. That is simply not true, and Mr.

Hernandez testified that he felt "Just a little bit" of pain. (R.R. 3 p. 29). No rational

juror, and the word rational has to have some meaning, could believe after

watching the video and listening to the testimony of Mr. Hernandez that Mr.

Hernandez and not Appellant was the proximate cause of the pain in his ann and

leg that he felt. Appellant seems to be claiming, as his attorney did at trial, that if

Appellant didn't use force to acquire the property, then it isn't a Robbery even if

he used force, which State's Exhibit one clearly shows he did, in the immediate

flight after theft. Although this threshold showing is low, "it is not enough that the

jury may disbelieve crucial evidence pertaining to the greater offense, but rather,

there must be some evidence directly germane to the lesser-included offense for

the finder of fact to consider before an instruction on a lesser-included offense is

warranted." Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App.l997). The

Skinner opinion is what we have here, although the threshold is low to get a lesser

included, we can't simply give a lesser included because a jury might refuse to

believe what they see on the video which is a textbook strong arm robbery, there

has to be some direct evidence, such as the Appellant or another witness testifying

he didn't use cause bodily injury, for Appellant to get a lesser included, and that

evidence simply isn't in the record. Therefore Point of Error Number Two should

be overruled for failing the second prong of the two prong test.

       Finally, Appellant failed to properly preserve Point of Error Two for

Appeal by failing to specifically state which Theft offense that Appellant wanted


                                                                                       10
as a lesser included offense. Did Appellant want a Theft of Property under Fifty

Dollars Class C Misdemeanor charge? Did Appellant want a Theft fi-om a Person

State Jail Felony Charge? All Appellant's Attorney stated was "I would be

requesting a lesser included charge for just theft." (R.R. 3 p. 128-129). Theft

comes in grades from a Class C Misdemeanor to a First Degree Felony. Tex ..

Penal Code Sec. 31.03. Value alone does not determine the grade Theft. Tex.

Penal Code Sec. 31.03. The State has pointed out two specific grades of Theft that

would be lesser offenses than Robbery, but without Appellant specifying which

Theft offense he wanted, the trial court judge was not properly put on notice much

like he was not put on notice with Appellant's first time on appeal Confrontation

Clause violation argument. Therefore, Point of Error Number Two should be

overruled.

                           POINT OF ERROR THREE

       Appellant claims the evidence is legally insufficient to support a conviction

for armed robbery because there is no evidence that Appellant himself

intentionally, knowingly, or recklessly caused bodily injury to the victim.

Appellant begins the argument by stating the record is unequivocal that there is no

evidence of a threat to the victim, an argument the State agrees with but the

Appellant was not charged with a robbery by threat but robbery by causing bodily

injury, so the argument is pointless.

       Next Appellant argues there is no evidence that Appellant himself caused

injury to the victim. Appellant does not seem to contest that an injury occurred,


                                                                                    11
Appellant even quotes the victim as testifying that one did, but simply that the

victim did not say specifically that that Appellant caused the injury. There is no

legal requirement that I can find in the case law that says the victim to a crime

must specifically state that the Defendant caused him or her an injury, in fact in a

murder case, absent a dying declaration, that would be impossible.

       For legal sufficiency the question is, "after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia

442 U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)

(Adopting Jackson legal sufficiency standard as the only standard a reviewing

Court should apply when examining sufficiency of the evidence). After watching

the video is State's Exhibit 1 and listening the testimony of the victim in this case

not only could any rational trier of fact find Appellant guilty, only an irrational

trier of fact would not. In State's Exhibit 1 video Appellant can be seen shoving

the victim across the room and grabbing at his neck. The victim testified that he

felt "Just a little bit" of pain as a result of Appellant's conduct while taking

money. (R.R. 3 p. 29) Therefore, the evidence is sufficient to believe Appellant

caused bodily injury in the course of cmmnitting theft and Point of Error Three

should be overruled.

                                      PRAYER

       Appellant's trial was without prejudicial error. The State prays that

Appellant's conviction and sentence be affirmed.


                                                                                      12
                                             Respectfully submitted,

                                             NOBLE DAN WALKER, JR.
                                             District Attorney
                                             Hunt County, Texas


                                                    Is/ Jeff Kovach
                                             JeffT. Kovach
                                             Assistant District Attorney
                                             P. 0. Box 441
                                             4th Floor, Hunt County Courthouse
                                             Greenville, TX 75403
                                             State Bar No. 24065571
                                             (903) 408-4180
                                             FAX (903) 408-4296

                       CERTIFICATE OF SERVICE


      A true copy of the State's brief has been served to Jessica Edwards,
Appellant's attorney of record, August14th, 2015, pursuant to Texas Rules of
Appellate Procedure.

                                                    Is/ Jeff Kovach
                                             JeffT. Kovach
                                             Assistant District Attorney

                    CERTIFICATE OF COMPLIANCE


       I certify that Appellee's Brief is written in Times New Roman font size
13 point text. Appellee's brief has 2474 words according to the word count
feature on Appellee's word processing program .

                                                    Is/ Jeff Kovach
                                             JeffT. Kovach
                                             Assistant District Attorney




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