                                                                                       ACCEPTED
                                                                                  01-14-00335-CR
                                                                        FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                              2/9/2015 4:11:36 PM
                                                                             CHRISTOPHER PRINE
                                                                                           CLERK

                  No. 01-14-00335-CR & 01-14-00336-CR

                   ________________________________               FILED IN
                                                           1st COURT OF APPEALS
                In the First Court of Appeals Houston, Texas HOUSTON, TEXAS
                                                           2/9/2015 4:11:36 PM
                   ________________________________ CHRISTOPHER A. PRINE
                                                                   Clerk

                       DAMION GENTRY, Appellant



                                     V.



                     THE STATE OF TEXAS, Appellee

                   _______________________________

               On Appeal from the 240th Judicial District Court
                       Of Fort Bend County, Texas
               Cause No. 12-DCR-061920 & 12-DCR-061921
                   _______________________________
                           APPELLANT’S BRIEF

                  ______________________________________


Michael C. Diaz
20228 Hwy. 6
Manvel, Texas 77578
Telephone: 281-489-2400
Facsimile: 281-489-2401
Texas Bar No. 00793616
mjoeldiaz@sbcglobal.net
Attorney for Appellant
                 APPELLANT REQUESTS ORAL ARGUMENT

                STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to the Texas Rules of Appellate Procedure 9.4(g) and 38.1(e),

Appellant requests oral argument to benefit this Court for the following reasons:

      Appellant contends that the juvenile court’s reasons for certifying Appellant

were insufficient and abused its discretion.

      The trial court committed reversible error and abused its discretion in

denying Appellant’s motion to suppress his written statement.

      The evidence is insufficient to support Appellant’s conviction for aggravated

robbery in cause number 12-DCR-61921.




                                          ii
                    IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. Rule 38.1 (a), appellant certifies that the

following is a complete list of the parties to the final judgment and the names and

addresses of counsel in the trial and on appeal:

Appellant:

Damion Gentry

Counsel for Appellant:

Michael C. Diaz (at trial and appeal)
20228 Hwy. 6
Manvel, Texas 77578

Brian M Middleton (at trial)
7322 Southwest Freeway, Suite 1980
Houston, Texas 77074


Counsel for the State of Texas:

John F. Healey Jr.-District Attorney
Tyra McCollom-Trial
Stuti Patel-Trial
John Harrity-Appeal
Fort Bend County, Texas District Attorney’s Office
1422 Eugene Heimann Cir
Richmond, Texas 77469

Trial Judge:

The Honorable F. Lee Duggan-Visiting
Presiding Judge 240th District Court
Fort Bend County, Texas



                                          iii
                   TABLE OF CONTENTS

STATEMENT REQUESTING ORAL ARGUMENT……………………………..ii

IDENTITY OF PARTIES AND COUNSEL……………..……………………….iii

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

INDEX OF AUTHORITES…………………………………………………….v, vi

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

STATEMENT OF ISSUES PRESENTED………………………………………...2

STATEMENT OF FACTS…………………………………………………….…...3

SUMMARY OF THE ARGUMENT……………………………………………..14

ARGUMENT/POINT OF ERROR ONE.………………………………………...15

ARGUMENT/POINT OF ERROR TWO……………………………………...…23

ARGUMENT/POINT OF ERROR THREE……………………………………...30

CONCLUSION AND PRAYER FOR RELIEF…………………………………..34

CERTIFICATE OF COMPLIANCE…...…………………………………………36

CERTIFICATE OF SERVICE...………………………………………………….37



                 CITATION TO THE RECORD

Certification Hearing…………………………………………...……. "CH & page”

Suppression Hearing…………………………………………………. "SH & page”




                           iv
                          INDEX OF AUTHORITIES


CASES:


Brooks    v.   State,   323   S.W.3d    893,     901-02     (Tex.    Crim.   App.,

2010)………………..31


Brown v. Illinois, 422 U.S. at 601, 95 S.Ct. at 226…………………………....27, 28


In The Matter of L.R.S., 573 S.W.2d 888 (Tex.Civ.App-Houston [1 Dist]

1978)………………………………………………………………………...…27-30


Jackson        v.        Virginia,         443       U.S.           307,      319

(1979)…………………………………….30


Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966)……17-

18


Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009)…………………..30


Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 1079 (1954)………….29


Moon v. State, PD-1215-13……………………………………………………17-18


R. C. S. v. State of Texas, 546 S.W.2d 939 (Tex.Civ.App.1977, no writ).……..27



                                       v
United States v. Bayer, 331 U.S. 532 (1947)…………………………………….29


Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)……………….31


Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1962)…….26-28


CODES, RULES AND CONSTITUTIONAL PROVISIONS:


Tex.                    Fam.                     Code                     Sec

51.09…………………………………………………………23


Tex. Fam. Code Sec 51.095……………………………………..….23-24, 26, 28-

29


Tex. Fam. Code Sec 54.02…………………………………………………15-18,

29


Tex. Code Crim. Proc., Art. 38.23………………………………………………..24


Tex. Penal Code 29.01………………………………………………………….....31


Tex. Penal Code 29.02………………..…………………………………..……….31


Tex. Penal Code 29.03……………………………………………….……………32


Tex. R. App. 9.4(g)……………………………………………………….……....ii


                                      vi
Tex.           R.             App.9.4           (i)

3………………..…………………………………….………..35


Tex. R. App. 38.1(a)………………………………………………….………….iii


Tex.                   R.                     App.

38.1(e)………………………………………………………….……..ii




                        vii
                          STATEMENT OF THE CASE


      On November 15, 2012, Damion Gentry was certified to stand trial as an

adult. On November 26, 2012, Damion Gentry, appellant, was indicted for felony

offenses of aggravated robbery. (CR 1 at 16). On April 8, 2014, appellant pled not

guilty to the indictments. (CR 21 at 12). After a jury trial, the jury found appellant

guilty of the charged offenses and appellant was assessed two 50 year sentences in

the Texas Department of Criminal Justice-Institutional Division. (CR 1 at 102).


      On April 17, 2014, Appellant timely filed his notice of appeal. (CR 1 at 97).




                               ISSUES PRESENTED

                                          1
                             POINT OF ERROR ONE


      Appellant contends that the juvenile court’s reasons for certifying Appellant

were insufficient and abused its discretion.


                             POINT OF ERROR TWO


      The trial court committed reversible error and abused its discretion in

denying Appellant’s motion to suppress his written statement.


                            POINT OF ERROR THREE


      The evidence is insufficient to support Appellant’s conviction for aggravated

robbery in cause number 12-DCR-61921.




                             STATEMENT OF FACTS


                                          2
      On January 19, 2012, at approximately 3 a.m., Masario Garza, who was 68

years old at the time, was on his way to work at National Oil in Houston. Garza

would took the same route to work, which was down old Highway 90, then turn on

Harlem road to FM 1093, and then get to Highway 6 and all the way to West Little

York. As Garza began slowing down in the outside lane, and approaching a red

light at FM 359, which intersects with Highway 90, a gray or silver truck passed

him on the inside lane. The truck came to a stop and a young, light skinned,

Spanish boy, maybe in his late teens, gets out of the passenger side of the truck

with a gun in his right hand. Garza stepped on the gas and took off, thinking he

was going to get robbed. The boy shot into Garza’s driver window two times.

Garza continued to travel on Highway 90 at a high rate of speed and called 911.

The truck followed Garza at a high rate of speed also. Garza heard two more shots

fired as the truck caught up with him and pass him. Eventually the truck turned

back in the opposite direction and Garza heard two more shots fired as the truck

traveled away at a high rate of speed. Garza suffered cuts on his cheek, ear lobe

and hand. (RR at 6-34). On cross-examination, Garza testified that he never

stopped his vehicle and that there was no dialogue ever exchanged with the person

who shot at him. Moreover, Garza assumed that this person was going to rob him.

(RR 6 at 35-42).




                                        3
      Nelson Alberto Mejia Escobar was working in the parking lot of Academy

in the early morning when he observed a gray F-150 truck driving toward him

without its headlights. Escobar said there were two Hispanic males in the truck

and the passenger, who appeared to be a 15 or 16 years old, got out of the truck

telling Escobar in Spanish, to give him $150. Escobar said this person had a black

firearm in his right hand pointing it at Escobar’s head.     Escobar empties his

pockets and takes his keys out while the passenger is pointing the gun at different

parts of Escobar’s body. The passenger then asks Escobar for his keys and gets

them from Escobar. Escobar is begging for mercy not to get shot. The passenger

then strikes Escobar’s hand with the gun and starts shooting at Escobar three or

four times. Escobar takes off running and trips and falls, thinking he has been

shot. Escobar hears the passenger say, “I already killed him,” and the passenger

gets in the truck and the truck leaves. (RR 5 at 6-40).


      Officer James Thompson went by an apartment complex, which was under

construction, looking for a suspicious vehicle. The apartment complex was located

behind Academy. Thompson heard three or four rapid gunshots coming from the

general area of Academy parking lot. Thompson then heard tires squealing and

observed a 2-door gray Ford pickup truck leaving the parking lot at a high rate of

speed running a stop sign and crossing over toward FM 762.              Thompson

maintained visual contact with the gray truck, except for a brief second, as there

                                          4
were no other cars around at the time. Thompson eventually got behind the gray

truck and activated his dash camera thirty seconds before he turned on his

overhead lights.    The gray truck comes to a stop on the wrong side of the street,

directly in front of the driver’s house. As Thompson exits his patrol car, the

passenger exits the truck and Thompson commands the passenger to get back in

the truck. Thompson had the driver walk back to him for safety reasons and began

asking the driver general questions. At this time, Thompson receives a dispatch

referencing a shooting so he draws his weapon, ordering the driver to ground and

orders the passenger out of the truck and onto the ground also. The two suspects

begin talking in Spanish to one another and the passenger gets up off the ground,

moving to the front of the truck while Thompson loses sight with him but regains

it. Thompson observed the passenger run away northbound from the scene. Once

Thompson inventories the truck, he finds the keys that belonged to Escobar.


      Detective Leonhardt was called out to the stop location. Leonhardt watched

the in-car video and knew the passenger as the Appellant.        Once Leonhardt

determined that it was Appellant on Thompson’s in-car video, he was able to

locate an address for the Appellant in Richmond. At 9 a.m. Leonhardt, Lieutenant

Dunn, Detective White and Detective Eder arrive at Appellant’s residence.

Appellant’s stepfather let them in and they proceeded to the back of the trailer

where they found Appellant exiting the bathroom and detained him. Appellant’s

                                        5
stepfather gave the officers consent to search the trailer for the firearm. Appellant

made a statement that the gun was thrown out of the truck in front of the

subdivision where they were stopped. Leonhardt then transported the Appellant to

Judge Ward’s office to be given his magistrate warnings in order to obtain a

statement.


      The Appellant was certified to stand trial as an adult on November 15, 2012.

At the certification hearing, the State called Dr. Karen Gollaher to testify. Dr.

Gollaher testified on cross examination as follows:


      Q. You said, if found true, you recommend that Damion enter into secure

facility and have structured regimen with a behavior modification plan in place.

This plan will allow him to establish a pattern of pro-social behavior and establish

more self-discipline. Do you agree with that?


      A. Yes, sir.


      Q. You mind hasn't changed on that?


      A. No, sir. That's the best shot that we have, just to attempt something with

him. (RR, CH 1 at 357).


      Q. Okay. Do you agree with Dr. Axelrod in his conclusion that the Court

must seriously address the likelihood for rehabilitation for Damion Gentry?
                                         6
      A. I think that this young man could use rehabilitation where that happens

and how that happens, you know, I may differ with him on it. (RR, CH 1 at 361).


      Q. Do you know if the state penitentiary provides rehabilitation, or if that is

for punishment?


      A. I know there's some treatment components in it, but I can't say that I'm

familiar with what all of those are today.


      Q. So you can't give me a yes or no on that?


      A. That's correct. (RR, CH 1 at 361).


      Q. I'm not asking about time in any facility or wherever that's going to be,

but you agree with me that he does need rehabilitation, correct?


      A. Yes, he needs help. (RR, CH 1 at 364).


      At the certification hearing, the Appellant called Dr. Axelrad to testify on

direct examination which was as follows:


      Q. And what is -- what was Dr. Polluck's findings as far as Damion is

concerned, whether he felt like rehabilitation would be something that would be

additional for Damion?



                                             7
      A. He felt that rehabilitation would be a something that could be of a

significant assistance to him.


      Q. What have you been asked by this Court?


      A. I have been asked by this Court to provide information relating to

whether or not this patient has psychiatric problems, which can be treated.


      Q. And have you found that there are problems with Damion, and can they

be treated?


      A. I have found problems that can be treated, Dr. Polluck has found

problems that can be treated. And he's being treat for those problems in juvenile

hall right now. (RR, CH 2 at 105-106).


      Q. And from your evaluation of Damion, and you understand what the Court

has to decide on concerning Damion, can you give you the Court your opinion

about Damion's situation in this certification hearing?


      A. I believe that he's got a treatable condition in terms of bipolar disorder.

Dr. Anity, as recently as last night, agreed with this opinion when we had this

discussion. He has had significant response to both the Depokate and Abilify and

his bipolar and behavior problems have improved as a result of the treatment that

Dr. Anity is providing him. I also have an opinion based on upon Dr. Polluck
                                          8
correspondence with me and my phone conversations with him that Damion will

be able to be provided cognitive rehabilitation in a juvenile setting depending on

what the Court decides here; and that's also is going to have a significant positive

effect in term of rehabilitation? (RR, CH 2 at 114).


      At the conclusion of the certification hearing, the trial court made the

following findings:


      That the offense was against the person.           That you are sufficiently

sophisticated and mature enough to be tried as an adult. You are sufficient enough

to help your attorney in your defense. That you have a record, and your previous

history is such that you should be certified to stand trial as an adult. The public

cannot be protected if you remain in the juvenile system. And there's a likelihood

that the juvenile system could rehabilitate you is very remote. I think juvenile has

tried just about everything they could to help you. The fact that the alleged

offenses were felony of the first degree, and that you were 14 years of age when

you committed those felonies. There has been no adjudication of the two felonies.

And because of the seriousness of the alleged offenses, the public cannot be

protected if you remain in the juvenile system. Because of the background, the

public cannot be protected if you remain here.         I find based on your social




                                         9
evaluation and investigative report and your psychological evaluation that you

should be certified to stand trial as an adult. (RR, CH 2 at 177-178).


        During a motion to suppress hearing, the State called four witnesses. The

first witness, Judge Mary Ward, administered Appellant his warnings in order for

the police to obtain his statement at her office. Ward testified that Appellant

acknowledged that he understood his warnings and gave an audio statement and a

written statement which was the basis of the suppression hearing. (RR, SH 1 at 5-

14).


        The next witness, Detective Leonhardt testified on direct examination as

follows:


        Q. Okay. So those warnings, his warnings aren't part of that recording, are

they?


        A. No, sir.


        Q. Okay. But you started talking to him and started asking him questions

without those warnings on the recording; is that correct?


        A. After I asked him if he remembered the rights and he told us he did, then

that's when we started questioning him.


                                          10
      Q. Yes, sir. But my question is, those warnings aren't part of the recording,

are they?


      A. No. (RR, SH 1 at 40).


      Leonhardt also testified to the written statement as follows:


      Q. Now, during the course of that interview with Damion that was recorded,

there is mention of him writing a statement out; isn't that correct?


      A. Yes, sir. (RR, SH 1at 43).


      Q. Okay. And you can hear conversations going on between you, Detective

McKinnon, and Detective Dunn, and Damion regarding the written part, right?


      A. I believe so. (RR, SH 1 at 43).


      Q. So the written part derives from his oral recorded statement, right? It's on

there, right?


      A. Correct. (RR, SH 1 at 75).


      The State’s third witness was Lieutenant Tracie Dunn, testified on direct

examination as follows:




                                           11
         Q. Okay. And did you tell him what to put down, as far as the car or the

truck?


         A. I don't recall not that specific, no.


         Q. Okay. Did you tell him, you just can't say such-and-such, you have to say

your friends were getting gas and you wait. Were you getting into details?


         A. I don't recall getting into details, no, sir.


         Q. You don't?


         A. No, sir.


         Q. Okay. And did you tell him, Make sure you got everything about the car?

Do you remember making those statements to him as he is writing this written

statement? (RR, SH 1at 80-81).


         Q. Okay. And the recording would be the best evidence of that?


         A. Sure. (RR, SH 1 at 81).


         On cross examination, Dunn testified as follows:


         Q. Okay. The written statement that's admitted is State's Exhibit No. 1 is the

creation of that document also evident on the oral statement?

                                               12
      A. Yes.


      Q. All right. So in that regard, they're created simultaneously?


      A. Correct. (RR, SH 1 at 89).


      The State’s fourth witness, Detective McKinnon testified on cross

examination as follows:


      Q. Was -- was the gun ever found?


      A. No.


      Q. The gun wasn't found and the written statement comes later on than the

audio; is that correct?


      A. That's correct.


      Q. It's not right up front, but it's later after the question and answer, the

dialogue is already taken place for an hour?


      A. That's correct. After we do the dialogue, we take the written statement.

(RR, SH 1 at 109-110).




                                         13
                       SUMMARY OF THE ARGUMENT


                                 Point of Error One


      Appellant contends that the juvenile court’s reasons for certifying Appellant

were insufficient and abused its discretion.


                                 Point of Error Two


      The trial court committed reversible error and abused its discretion in

denying appellant’s motion to suppress his written statement.


                                Point of Error Three


      The evidence is insufficient to support Appellants conviction for aggravated

robbery in cause number 12-DCR-61921.




                                         14
                                    ARGUMENT


                              POINT OF ERROR ONE:


 Appellant contends that the juvenile court’s reasons for certifying Appellant were
                      insufficient and abused its discretion.

      Section 54.02 of the Texas Family Code states: (a) The juvenile court may

waive its exclusive original jurisdiction and transfer a child to the appropriate

district court or criminal district court for criminal proceedings if:


(1) the child is alleged to have violated a penal law of the grade of felony;


(2) the child was:


(A) 14 years of age or older at the time he is alleged to have committed the

offense, if the offense is a capital felony, an aggravated controlled substance

felony, or a felony of the first degree, and no adjudication hearing has been

conducted concerning that offense; and…


(3) after a full investigation and a hearing, the juvenile court determines that there

is probable cause to believe that the child before the court committed the offense

alleged and that because of the seriousness of the offense alleged or the



                                           15
background of the child the welfare of the community requires criminal

proceedings.


      In making the determination required by Subsection (a) of this section, the

court shall consider, among other matters:


(1) whether the alleged offense was against person or property, with greater

weight in favor of transfer given to offenses against the person;


(2) the sophistication and maturity of the child;


(3) the record and previous history of the child; and


(4) the prospects of adequate protection of the public and the likelihood of the

rehabilitation of the child by use of procedures, services, and facilities currently

available to the juvenile court.


      If the juvenile court waives jurisdiction, it shall state specifically in the order

its reasons for waiver and certify its action, including the written order and

findings of the court, and shall transfer the person to the appropriate court for

criminal proceedings…


      Appellant contends that the juvenile court’s findings do not support its

decision to certify Appellant in this case.

                                          16
      In Kent, the United States Supreme Court characterized the statutory transfer

proceedings in the District of Columbia as “critically important” and held that any

statutory mechanism for waiving juvenile-court jurisdiction must at least measure

up to the essentials of due process and fair treatment.” Kent v. United States, 383

U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). We hold that it is incumbent upon

the Juvenile Court to accompany its waiver order with a statement of the reasons or

considerations therefor. Id.


      In order to transfer a juvenile to criminal court, the juvenile court must

consider all of the Kent factors as currently codified in Section 54.02(f) of the

Juvenile Justice Code. Moon v. State, PD-1215-13.


      The juvenile courts reasons for transfer to criminal court were insufficient

based upon the evidence presented under Section 54.02(f).


                               Offenses Against Persons


      Although Appellant was charged with two aggravated robberies, this alone

cannot be a valid reason alone for certification. Section 54.02 requires a full

investigation, which includes a complete diagnostic study, social evaluation, and

full investigation of the child, his circumstances and the circumstances of the

alleged offense and a then the hearing. The courts of appeals have long held that


                                          17
the offense that the juvenile is alleged to have committed, so long as it is

substantiated by evidence at the transfer hearing and of a sufficiently egregious

character, will justify the juvenile court's waiver of jurisdiction regardless of what

the evidence may show with respect to the child's background and other Section

54.02(f) factors. This is different from holding that the mere category of offense

the juvenile is alleged to have committed, without more, will serve to justify

transfer. If that is the only consideration informing the juvenile court's decision to

waive jurisdiction; the category of crime alleged, rather than the specifics of the

particular offense; then we agree with the Supreme Court's intimation in Kent that

the transfer decision would almost certainly be too ill-informed to constitute

anything but an arbitrary decision. Moon v. State, PD-1215-13.


       Appellant was charged with two aggravated robberies, in which there were

two different victims. However, the nature of the charge alone is insufficient for

certification.   Moreover, the offenses were committed within an hour of one

another.


                             Sophistication and Maturity


       Dr. Axelrad testified at the certification hearing on direct examination as

follows:



                                          18
Q. What's your opinion about Damion's maturity and sophistication from your

evaluations?


A. Damion Gentry is an adolescent who has a relatively severe bipolar disorder.

He has this disorder, and he has had this disorder probably for the past five years,

based on the history he shared with me. He has a history of several head injuries.

And those head injuries may very well be the reason in part for the

neuropsychological deficits that Dr. Polluck has diagnosed in this case, that he has

incorporated in two reports to me and to the court? So because of the problems

that he's experiencing neuropsychiatrically, he is impaired. He is psychiatric and

psychologically impaired. So if you're going to utilize the word maturity and

sophistication in a medical context or clinical context, he has a brain that has been

injured. (RR, CH 2 at 104-105).


      The evidence clearly showed Dr. Axelrad, a psychiatrist, for over 40 years,

testified that Appellant suffered from head injuries and neuropsychological deficits

that are involving the same areas of the brain that have not been fully matured or

developed or mamelonated. (RR, CH 2 at 91).


                       Record and Previous History of Child




                                          19
Appellant’s record and previous history was minimal and non-violent. The state’s

witness, Shane Marvin testified at the certification that Appellant was first

involved with their department at age 10. (RR, CH 2 at 10). Appellant was on

probation for one year for the offense of assault on a public servant, from May 28,

2009 to May 27, 2010. Marvin clarified during trial that this was an assault on

Appellant’s teacher while in special education classes. (RR 11 at 145). Marvin

testified that Appellant successfully completed this probation. (RR, CH 2 at 37).

Appellant was placed on probation, a second time, on December 27, 2010, for

membership or gang solicitation, a class C offense, until June 26, 2011, which he

successfully completed. (RR, CH2 at 34, 39). In addition, Appellant was sent to

Riverside Substance Abuse Center and to the Juvenile Boot Camp Program, as

conditions of his probation. (RR, CH 2 at 63). In addition, Marvin testified that

his department’s recommendation was TJJD or Texas Juvenile Justice Department.

(RR, CH 2 at 63).


      Appellant lacked a criminal history subject to certification.      Appellant

successfully completed two probations as a juvenile, for offenses which were not

egregious in nature.     Furthermore, Marvin’s recommendation was to send

Appellant to TJJD, which is one avenue that was never exhausted in the juvenile

system.



                                        20
                            Likelihood of Rehabilitation


      The state’s expert, Dr. Karen Gollaher testified that Appellant could be

rehabilitated by her own testimony which is as follows:


Q. Okay. Do you agree with Dr. Axelrod in his conclusion that the Court must

seriously address the likelihood for rehabilitation for Damion Gentry?


A. I think that this young man could use rehabilitation where that happens and how

that happens, you know, I may differ with him on it. (RR, CH 1 at 361).


Q. Do you know if the state penitentiary provides rehabilitation, or if that is for

punishment?


A. I know there’s some treatment components in it, but I can’t say that I’m familiar

with what all of those are today.


Q. So you can’t give me a yes or no on that?


A. That’s correct. (RR, CH 1 at 361).


Q. I’m not asking about time in any facility or wherever that’s going to be, but you

agree with me that he does need rehabilitation, correct?


A. Yes, he needs help. (RR, CH 1 at 364).


                                          21
      Gollaher conceded at the certification hearing that Appellant does need

rehabilitation. Furthermore, Dr. Axelrod testified as follows;


Q. And what is – what was Dr. Polluck’s findings as far as Damion is concerned,

whether he felt like rehabilitation would be something that would be additional for

Damion?


A. He felt that rehabilitation would be a something that could be of a significant

assistance to him.


Q. What have you been asked by this Court?


A. I have been asked by this Court to provide information relating to whether or

not this patient has psychiatric problems, which can be treated.


Q. And have you found that there are problems with Damion, and can they be

treated?


A. I have found problems that can be treated, Dr. Polluck has found problems that

can be treated. And he's being treat for those problems in juvenile hall right now.

(RR, CH 2 at 105-106).




                                         22
Q. And from your evaluation of Damion, and you understand what the Court has to

decide on concerning Damion, can you give you the Court your opinion about

Damion's situation in this certification hearing?


A. I believe that he's got a treatable condition in terms of bipolar disorder. Dr.

Anity, as recently as last night, agreed with this opinion when we had this

discussion. He has had significant response to both the Depokate and Abilify and

his bipolar and behavior problems have improved as a result of the treatment that

Dr. Anity is providing him. I also have an opinion based on upon Dr. Polluck

correspondence with me and my phone conversations with him that Damion will

be able to be provided cognitive rehabilitation in a juvenile setting depending on

what the Court decides here; and that's also is going to have a significant positive

effect in term of rehabilitation? (RR, CH 2 at 114).


      All three experts agreed and it is undisputed from the record that Appellant

should benefit from rehabilitation and these problems could be treated and did

require treatment. As a matter of fact, Appellant was responding to medication

given to him at the detention facility. Furthermore, the juvenile court stated in it

reasons for certification, that there's a likelihood that the juvenile system could

rehabilitate you is very remote. Although remote, based upon this reason, it does

appear there was some chance the juvenile system could have rehabilitated


                                          23
Appellant. (RR, CH 2 at 177-178).We will never know. Certification should be

the last option for any child, who was 14, at the time he committed these offenses,

based upon the testimony at the certification hearing.


                                   ARGUMENT


                            POINT OF ERROR TWO:


      The trial court committed reversible error and abused its discretion in

denying appellant’s motion to suppress his written statement.


      Sec. 51.095. ADMISSIBILITY OF A STATEMENT OF A CHILD. (a)

Notwithstanding Section 51.09, the statement of a child is admissible in evidence

in any future proceeding concerning the matter about which the statement was

given if:…


      (5)    subject to Subsection (f), the statement is made orally under a

circumstance described by Subsection (d) and the statement is recorded by an

electronic recording device, including a device that records images, and:


      (A) before making the statement, the child is given the warning described

by Subdivision (1)(A) by a magistrate, the warning is a part of the recording, and

the child knowingly, intelligently, and voluntarily waives each right stated in the

warning;…
                                         24
      Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by

an officer or other person in violation of any provisions of the Constitution or laws

of the State of Texas, or of the Constitution or laws of the United States of

America, shall be admitted in evidence against the accused on the trial of any

criminal case…


      Appellant’s written statement derives from the illegally obtained audio

recording which was suppressed during a motion to suppress hearing. (RR, SH 2

at 25). Furthermore, during the suppression hearing, Leonhardt testified to the

written statement as follows:


      Q. Now, during the course of that interview with Damion that was recorded,

there is mention of him writing a statement out; isn't that correct?


      A. Yes, sir. (RR, SH 1at 43).


      Q. Okay. And you can hear conversations going on between you, Detective

McKinnon, and Detective Dunn, and Damion regarding the written part, right?


      A. I believe so. (RR, SH 1 at 43).


      Q. So the written part derives from his oral recorded statement, right? It's on

there, right?


                                           25
      A. Correct. (RR, SH 1 at 75).


      On cross examination, Dunn testified as follows:


      Q. Okay. The written statement that's admitted is State's Exhibit No. 1 is the

creation of that document also evident on the oral statement?


      A. Yes.


      Q. All right. So in that regard, they're created simultaneously?


      A. Correct. (RR, SH 1 at 89).


      McKinnon testified at the suppression hearing as follows:


      Q. The gun wasn't found and the written statement comes later on than the

audio; is that correct?


      A. That's correct.


      Q. It's not right up front, but it's later after the question and answer, the

dialogue is already taken place for an hour?


      A. That's correct. After we do the dialogue, we take the written statement.

(RR, SH 1 at 109-110).



                                         26
      This testimony from the suppression hearing clearly shows that the written

statement was taken simultaneously during the recording of the audio statement,

which was suppressed. (RR, SH 2 at 25). The audio recording was obtained in

violation of Section 51.095 of the Texas Family Code. The written statement was

the fruit of the tainted oral, audio confession and should be likewise inadmissible.

Wong Sun v. U. S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1962).


      The impact of a warning, given after the first incriminating statement has

been made is much weaker than it would have been absent a prior confession, for

one cannot be reasonably expected to persist in the denial of that which he has

already admitted. Although the legislature has determined that the solemnity of a

warning given by a judicial officer is more efficacious, in the case of a child, than

one given by a policeman, even a warning by a magistrate, and a determination by

the magistrate that the confession is voluntary, is of questionable value when the

magistrate's investigation is made in the absence of all knowledge of a prior illegal

statement which places the child at a psychological disadvantage in the subsequent

interrogation.   Under such circumstances, the admonitions and counsel of the

magistrate are unlikely to convert spiritless despair to alert diligence in a child

whose secret is already 'out of the bag'. R. C. S. v. State of Texas, 546 S.W.2d 939

(Tex.Civ.App.1977, no writ); In The Matter of L.R.S., 573 S.W.2d 888

(Tex.Civ.App-Houston [1 Dist] 1978).

                                         27
      In Brown, while under arrest, Brown made two in-custody inculpatory

statements after having been given the Miranda warnings. These statements led to

his indictment for murder and subsequent conviction. The Supreme Court of

Illinois, recognizing that the accused's arrest was illegal, held that the statements

were admissible on the ground that the giving of the Miranda warnings broke the

causal connection between the illegal arrest and the statements. The United States

Supreme Court reversed, stating:. . .Even if the statements in this case were found

to be voluntary under the Fifth Amendment, the Fourth Amendment issue remains.

In order for the causal chain, between illegal arrest and the statements made

subsequent thereto, to be broken, Wong Sun requires not merely that the statement

meet the Fifth Amendment standard of voluntariness but that it be 'sufficiently an

act of free will to purge the primary taint.' 371 U.S. at 486, 83 S.Ct. at 416. Wong

Sun thus mandates consideration of a statement's admissibility in light of the

distinct policies and interests of the Fourth Amendment. If Miranda warnings by

themselves, were held to attenuate the taint of an unconstitutional arrest, regardless

of how wanton and purposeful the Fourth Amendment violation, the effect of the

exclusionary rule would be substantially diluted. Brown v. Illinois, 422 U.S. at

601, 95 S.Ct. at 2261; L.R.S. at 892.


      The Court held that the question of whether a confession is the product of

free will under Wong Sun, supra, must be decided on the facts of each case.

                                         28
Factors to be considered when determining whether the confession was obtained

by exploitation of an illegal arrest (or detention) include not only the Miranda

warnings but also the time elapsed since the arrest or detention, the presence of

intervening circumstances, and the purpose and flagrancy of the official

misconduct. Since Brown's statement was separated from his illegal arrest by less

than two hours and there was no intervening event of significance, both statements

were held inadmissible with the second statement being the fruit of the first. 422

U.S. at 604-605, 95 S.Ct. at 2262; L.R.S. at 892.


      Just as in L.R.S., here, there was a failure to comply with the requirements of

Section 51.095(5) (a) of the Texas Family Code. Section 54.03(e), Title 3, of the

Family Code states:


      . . . An extrajudicial statement which was obtained without fulfilling the

requirements of this title or of the constitution of this state or the United States,

may not be used in an adjudication hearing . . .


      Although the language of Section 54.03(e), indicates a statement may not be

used in adjudication hearing, it is analogous to the case at bar.


      In addition, in L.R.S., the defendant did not have a sufficient cooling-off

period after his illegal detention to reflect and then give an admissible statement.


                                          29
See United States v. Bayer, supra; Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98

L.Ed. 1079 (1954). Furthermore, the magistrate in making his decision as to

whether the written confession had been given voluntarily, was unaware of what

had occurred prior to the appellant's being brought to his office. The written

statement was tainted by the prior inadmissible oral confession and was, therefore,

also inadmissible.


      Defendant’s exhibit one, which is the audio statement, from the suppression

hearing, that was suppressed, clearly reveals the dialogue between the Appellant

and the police which led to Appellant’s written statement. (RR, SH 2 at 28). The

police are talking with the Appellant, on Defendant’s exhibit one, for a lengthy

period of time, discussing with Appellant what Appellant should include in his

written statement. Appellant never had a period of time to reflect before providing

his written statement. Furthermore, there is no testimony that indicates that Judge

Ward was unaware of what had occurred prior to the Appellant's being brought to

her office, to conclude his written statement. Here, as in L.R.S., Appellant’s

written statement was tainted by the prior inadmissible oral confession and

therefore should have been suppressed as fruits of the poison tree. It is undisputed

that Appellant gave his audio, recorded oral confession prior to his written

statement, which is on Defendant’s exhibit one. (RR, SH 2 at 28). Although the



                                         30
trial court did suppress Appellants audio, recorded oral confession, the trial court

should have suppressed Appellants written statement as well.


                                    ARGUMENT


                             POINT OF ERROR THREE


      The evidence is insufficient to support Appellants conviction for aggravated

robbery in cause number 12-DCR-61921.


      In evaluating the legal sufficiency of the evidence, an appellate court will

view all of the evidence in the light most favorable to the prosecution to determine

whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). This familiar standard

gives full play to the responsibility of the trier of fact fairly to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts. This court will not sit as a thirteenth juror and may not

substitute its judgment for that of the fact finder by re-evaluating the weight and

credibility of the evidence. Brooks v. State, 323 S.W.3d 893, 901-02 (Tex. Crim.

App., 2010). However, a reviewing court's duty does require it to ensure that the

evidence presented actually supports a conclusion that the defendant committed the


                                           31
crime that was charged. If the evidence establishes precisely what the State has

alleged, but the acts that the State has alleged do not constitute a criminal offense

under the totality of the circumstances, then that evidence, as a matter of law,

cannot support a conviction. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007).


      Sec. 29.01 DEFINITIONS. In this chapter:


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

commit, during the commission, or in immediate flight after the attempt or

commission of theft…


      Sec. 29.02 of the Texas Penal Code defines ROBBERY as:


(a) A person commits an offense if, in the course of committing theft as defined in

Chapter 31 and with intent to obtain or maintain control of the property, he: (1)

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


(2) intentionally or knowingly threatens or places another in fear of imminent

bodily injury or death.


      Section 29.03 of the Texas Penal Code defines AGGRAVATED ROBBERY

as:


                                         32
(a) A person commits an offense if he commits robbery as defined in Section

29.02, and he:


(1) causes serious bodily injury to another;


(2) uses or exhibits a deadly weapon; or


(3) causes bodily injury to another person or threatens or places another person in

fear of imminent bodily injury or death, if the other person is:


(A) 65 years of age or older; or


(B) a disabled person.


      Garza testified that the truck came to a stop and a young, light skinned,

Spanish boy, maybe in his late teens, gets out of the passenger side of the truck

with a gun in his right hand. Garza stepped on the gas and took off, thinking he

was going to get robbed. The boy shot into Garza’s driver window two times.

Garza continued to travel on Highway 90 at a high rate of speed and called 911.

The truck followed Garza at a high rate of speed also. Garza heard two more shots

fired as the truck caught up with him and pass him. Eventually the truck turned

back in the opposite direction and Garza heard two more shots fired as the truck

traveled away at a high rate of speed.          (RR at 6-34).      However, on cross-

examination, Garza testified that he never stopped his vehicle and that there was no
                                           33
dialogue ever exchanged with the person who shot at him. Moreover, Garza

assumed that this person was going to rob him. (RR 6 at 35-42).


      The jury was put in a position to speculate and guess at what Appellant’s

conduct and intent was. Appellant could have intended to murder Garza or shoot

at or near Garza. In addition, Appellant never had any dialogue with Garza to

corroborate any intentions on Appellants part.        Garza testified that he never

stopped his vehicle and made an assumption that he was going to get robbed. (RR

6 at 35-42). This evidence does not support aggravated robbery or much less a

conviction for aggravated robbery.


      This evidence, when viewed in the light most favorable to the verdict, does

not appear to support a finding that any rational trier of fact, could have found the

Appellant guilty of aggravated robbery.




                  CONCLUSION AND PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, Appellant, Damion Gentry,

prays this court hold that the juvenile court’s reasons for certifying Appellant were

insufficient and abused its discretion; that the trial court committed reversible error

and abused its discretion in denying appellants motion to suppress; and that the

evidence is legally insufficient to support appellant’s conviction for aggravated

                                          34
robbery in cause number 12-DCR-61921; reverse the trial court's judgment and

order an acquittal or order a new certification hearing that meets constitutional and

statutory requirements as the law and justice demands.

.



                                              Respectfully Submitted,



                                              /s/ Michael C. Diaz
                                              Michael C. Diaz
                                              20228 Hwy. 6
                                              Manvel, Texas 77578
                                              Telephone: 281-489-2400
                                              Facsimile: 281-489-2401
                                              Texas Bar No. 00793616
                                              E-mail: mjoeldiaz@sbcglobal.net
                                              Attorney for Appellant




                                         35
                      CERTIFICATE OF COMPLIANCE


      Pursuant to Tex. R. App. 9.4(i) 3, I hereby certify that the foregoing

document, appellant’s brief, filed on February 9, 2015, has 7033 words based upon

the word count under Microsoft Word.


                                            /s/ Michael C. Diaz
                                            Michael C. Diaz
                                            20228 Hwy. 6
                                            Manvel, Texas 77578
                                            Telephone: 281-489-2400
                                            Facsimile: 281-489-2401
                                            Texas Bar No. 00793616
                                            E-mail: mjoeldiaz@sbcglobal.net
                                            Attorney for Appellant




                                       36
                         CERTIFICATE OF SERVICE


      In accordance with TEX. R. APP. P. 9.5, I Michael C. Diaz, certify that a

true and accurate copy of the foregoing brief for appellant has been served, by

hand delivery on February 9, 2015, to John Harrity, Assistant District Attorney,

Fort Bend County District Attorney’s Office at 1422 Eugene Heimann Cir.

Richmond, Texas.


                                            /s/Michael C. Diaz
                                            Michael C. Diaz




                                       37
38
