                                                                                    ACCEPTED
                                                                                12-14-00176-CR
                                                                   TWELFTH COURT OF APPEALS
                                                                                 TYLER, TEXAS
                                                                           6/25/2015 4:09:13 PM
                                                                                  CATHY LUSK
                                                                                         CLERK




                                                               FILED IN
                                                        12th COURT OF APPEALS
                                                             TYLER, TEXAS
                                                        6/25/2015 4:09:13 PM
                             No. 12-14-00176-CR              CATHY S. LUSK
                                                                 Clerk
__________________________________________________________________________

             IN THE TWELFTH DISTRICT COURT OF APPEALS
                            AT TYLER, TEXAS
__________________________________________________________________________

                           TRENT MUMPHREY
                                                      Appellant,

                                     v.

                          THE STATE OF TEXAS


                    Appealed from the 114th District Court
                            Smith County, Texas
__________________________________________________________________________

                        BRIEF OF THE APPELLANT
__________________________________________________________________________

                               Clement Dunn
                           State Bar No. 06249300
                          140 East Tyler, Suite 240
                           Longview, Texas 75601
                          Telephone: 903-753-7071
                             Fax: 903-753-8783




                       ORAL ARGUMENT WAIVED
                        IDENTITY OF PARTIES AND COUNSEL

      Appellant certifies that the following is a complete list of all parties to the trial court’s
judgment and the names and addresses of their trial and appellate counsel.

1.     Appellant:      Trent Mumphrey

2.     Appellant’s Trial Counsel:      Clement Dunn
                                       Attorney at Law
                                       140 E. Tyler Street, Suite 240
                                       Longview, TX 75601
                                       TSB No. 06249300

3.     Appellant’s Counsel on Appeal:          Hayward M. Rigano, II
                                               Attorney at Law
                                               P.O. Box 3384
                                               Longview, TX 75606
                                               TSB No. 16915950

4.     Attorney for the State:         Jacob Putman
                                       TSB No. 24065929
                                       Christopher Gatewood
                                       TSB No. 24062488
                                       Assistant District Attorneys, Smith County
                                       Smith County Courthouse, 4th Floor
                                       Tyler, Texas 75702




                                                 i
                                                              TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

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

STATEMENT REGARDING ORAL ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

ARGUMENT ..              .............................................................. 2

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   9

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     9

CERTIFICATE OF WORD COUNT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                            9




                                                                                      ii
                                             INDEX OF AUTHORITIES

                                                              Cases

 Leza v. State, 351 S.W. 3d 344, 357 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . 5

 Pizzo v. State, 235 S.W. 3d 711, 714 (Tex. Crim. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . 5

 Ngo v. State, 175 S.W. 3d 738, 745 (Tex. Crim. App. 2005). . . . . . . . . . . . . . . . . . . . . . . . . 5

 Almanza v. State, 686 S.E. 2d 157, 171 (Tex. Crim. App. 1985)(op. On reh’g). . . . . . . . . . . 6

 Arrington v. State, –S.W. 3d– (Tex. Crim. App. 2015) (No. PD-1448-13, dec’d 1-14-15). . 6



                                                   Statutes and Codes

Article 37.07, V.A.C.C.P.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5




                                                                iii
                                STATEMENT OF THE CASE

Offense:       Aggravated Robbery

Verdict:       Guilty; Life years confinement - Texas Department of Criminal Justice -
               Institutional Division

Date of Verdict:       April 4, 2014

Trial Court:   114th District Court, Smith County, Texas.

       This case involves a prosecution for Aggravated Robbery. The case proceeded to

trial before a jury on April 1, 2014, as Cause Number 114-00-13, in the 114th District Court

of Smith County, Texas. (R.R.4, at 8.) On April 4, 2014, the jury returned a verdict finding

the Appellant guilty of Aggravated Robbery. (R.R. 9, at 104.) Following a hearing on

punishment, the jury returned a verdict assessing punishment at life imprisonment. (R.R. 10,

at 102.) It is from this conviction and sentence that this appeal is taken.



                   STATEMENT REGARDING ORAL ARGUMENT

       Believing the instant case contains issues capable of resolution on the basis of the

record and the briefs, the Appellant respectfully waives oral argument.



                                    ISSUES PRESENTED

1.     The instructions to the jury at the guilt/innocence phase of the trial failed to require the

       jury to agree unanimously that the Appellant acted either as the primary actor or as a

       party; the Appellant respectfully submits this violates Due Process (federal) and Due

       Course of Law (state).

2.     The trial court erred in allowing the State to raise extraneous offenses alleged to have

BRIEF OF APPELLANT, TRENT

                                                                                           PAGE 1
       been committed by the Appellant at the punishment phase of the trial when the State had

       not proven the Appellant’s commission of the offenses beyond a reasonable doubt.



                              STATEMENT OF THE FACTS

       This case involves an Aggravated Robbery that occurred in late September 2012 when

three people intruded into a house in Tyler, Texas. Apparently there to steal both drugs and

money, the intruders, armed with handguns, forcibly entered the residence, in which they

encountered a male and a female. While the female hid under the sheets on a bed in a bedroom,

the male, Dasha Webb, encountered these individuals. As a result of this encounter, Mr. Webb

was shot several times, including being shot as he ultimately fled the house. Taken that night

to a local hospital, Mr. Webb survived despite life-threatening injuries. These injuries have

long-term effects, however, including what appears to be permanent paralysis.



                                         ARGUMENT

Issue Number One: The instructions to the jury at the guilt/innocence phase of the trial failed

                       to require the jury to agree unanimously that the Appellant acted either

                       as the primary actor or as a party; the Appellant respectfully submits this

                       violates Due Process (federal) and Due Course of Law (state).

Summary of the Argument: The trial court erred in failing to require the jury to find

unanimously that the Appellant was either a primary actor or a party to the offense in order to

find him guilty. This failure of the trial court’s instructions violates Due Process (federal) and

Due Course of Law (state).



BRIEF OF APPELLANT, TRENT

                                                                                          PAGE 2
       In its instructions to the jury at the guilt/innocence phase of the trial, the trial court

charged the jurors as follows:

                      Application of law to facts.
                      You must determine whether the State has
                      proved beyond a reasonable doubt that the defendant is
                      guilty of aggravated robbery either as the primary actor
                      or as a party.
                      You can convict the defendant on the
                      testimony of Kendryon Smith only if:
                      (1) you find that Kendryon Smith was not
                      an accomplice;
                      Or (2) you find that Kendryon Smith was
                      an accomplice, and (A) you believe that the testimony of
                      Kendryon Smith is true and shows the defendant is
                      guilty; and (B) there is other evidence outside the
                      testimony of Kendryon Smith that tends to connect the
                      defendant, Trent Mumphrey, with the commission of the
                      offense charged; and (C) on the basis of all of the
                      evidence in the case, you believe beyond a reasonable
                      doubt that the defendant is guilty.
                      Liability as primary actor.
                      You must determine whether the State has
                      proved the defendant committed the crime by his own
                      conduct. To prove this, the State must prove beyond a reasonable
                      doubt three elements.
                      The elements are that:
                      (1A) the defendant, in Smith County,
                      Texas, on or about September 30, 2012, intentionally or
                      knowingly (A) caused bodily injury to Dasha Webb by
                      shooting Dasha Webb with a firearm; and (B) this bodily
                      injury was serious bodily injury;
                      Or (1B) the defendant, in Smith County,
                      on or about September 30, 2012, intentionally,
                      knowingly, or recklessly (A) caused bodily injury to
                      Dasha Webb by shooting Dasha Webb with a firearm; and
                      (B) the defendant used or exhibited a deadly weapon, a
                      firearm;
                      And (2) the defendant did this in the
                      course of committing theft of property owned by Dasha
                      Webb;
                      And (3) the defendant had the intent to
                      obtain or maintain control of the property that was the

BRIEF OF APPELLANT, TRENT

                                                                                         PAGE 3
                   subject of the theft.
                   If you all agree the State has proved
                   beyond a reasonable doubt -- beyond a reasonable doubt Elements
                   1A, 2, and 3 listed above, you must find the
                   defendant guilty.
                   If you-all agree the State has proved
                   beyond a reasonable doubt Elements 1B, 2, and 3 listed above, you
                   must find the defendant guilty.
                   Liability as party.
                   If any of you failed to agree the State
                   has proved beyond a reasonable doubt either Elements 1A,
                   2, and 3, or Elements 1B, 2, and 3 listed above, you
                   must next decide whether the State has proved beyond a
                   reasonable doubt that the defendant is guilty because he
                   is criminally responsible for the commission of a crime
                   committed by the conduct of another person.
                   This is the case that the State has
                   proved beyond a reasonable doubt five elements. The
                   elements are that:
                   (1A) Kendryon Smith, in Smith County,
                   Texas, on or about September 30, 2012, intentionally or
                   knowingly (A) caused bodily injury to Dasha Webb by
                   shooting Dasha Webb with a firearm; and (B) this bodily
                   injury was serious bodily injury;
                   Or (1B) Kendryon Smith, in Smith County,
                   Texas, on or about September 30, 2012, intentionally,
                   knowingly or recklessly (A) caused bodily injury to
                   Dasha Webb by shooting Dasha Webb with a firearm; and
                   (B) Kendryon Smith used or exhibited a deadly weapon, a
                   firearm;
                   And (2) Kendryon Smith did this in the
                   course of committing theft of property owned by Dasha Webb;
                   And (3) Kendryon Smith had the intent to
                   obtain or maintain control of the property that was the
                   subject of the theft;
                   And (4) the defendant solicited,
                   encouraged, directed, aided, or attempted to aid
                   Kendryon Smith to commit the offense of aggravated
                   robbery;
                   And (5) the defendant acted with the
                   intent to promote or assist the commission of the
                   offense of aggravated robbery by Kendryon Smith.
                   If you all agree the State has failed to
                   prove beyond a reasonable doubt either Elements 1A, 2,

BRIEF OF APPELLANT, TRENT

                                                                                PAGE 4
                       and 3, or Elements 1B, 2, and 3 above establishing the
                       defendant's guilt as primary actor, or Elements 1A
                       through 5 or Elements 1B through 5 listed above
                       establishing the defendant's guilt as a party, then you
                       must find the defendant not guilty.
                       If all of you who did not find the
                       defendant guilty as the primary actor agree that the
                       State has proved beyond a reasonable doubt each of the
                       five elements listed above, you must find the defendant
                       guilty.
                       You need not be unanimous about the
                       theory underlying either your guilty or not guilty verdict.
                       If you all agree the defendant is guilty
                       either as the primary actor, because the State has
                       proved all elements of primary actor beyond a -- primary
                       actor liability beyond a reasonable doubt or as a party
                       because the State has proved all elements of party
                       liability beyond a reasonable doubt, then you must find
                       the defendant guilty.
                       If you all agree the State has either
                       failed to prove all either Elements 1A, 2, and 3, or 1B,
                       2, and 3 of primary actor liability for all elements,
                       either 1A, 2, 3, 4, and 5, or 1B, 2, 3, 4, and 5 of
                       party liability, you must find the defendant not guilty.
RR. 9, at 30-34.

Significantly, in the midst of the above instructions, the trial court directs: “You need not be

unanimous about the theory underlying either your guilty or not guilty verdict.” Id., at 33-34.

       The Appellant concedes that the appellate judiciary in this state has generally upheld

instructions that allow a jury to convict a defendant as a primary actor or as a party to the

offense without unanimous agreement among the jurors as to which he was. See, e.g., Leza

v. State, 351 S.W. 3d 344, 357 (Tex. Crim. App. 2011). Perhaps in contrast, the appellate

judiciary has emphasized the importance of the right to a unanimous verdict in criminal

cases. This emphasis centers on jury instructions that must require a unanimous verdict. See,

e.g., Pizzo v. State, 235 S.W. 3d 711, 714 (Tex. Crim. App. 2007) and Ngo v. State, 175



BRIEF OF APPELLANT, TRENT

                                                                                         PAGE 5
S.W. 3d 738, 745 (Tex. Crim. App. 2005).

        In the instant case, jurors could find the Appellant guilty as a principal or as a party,

without unanimously agreeing on either “theory.” This means that some jurors may have

found the Appellant himself entered the house with a firearm and shot the complainant;

others may have found that Kendryon Smith performed these acts as a principal as the

Appellant accompanied and encouraged him. Yet others may have found that the Appellant

never entered the house, but acted merely as a “get-away driver,” staying outside the house,

in the car, facilitating the escape from the scene of the crime.

        While each of these roles may adequately inform a finding of guilt of aggravated

robbery, each encompasses very different conduct. With differing conduct come differing

levels of culpability. A defendant in this setting must then enter the punishment phase of his

trial not knowing how the jury at guilty/innocence reached its finding of guilt, or what level

of culpability may arise from that. In sum, he enters the punishment phase not knowing what

he must defend against--or precisely for what he has been found guilty.

        The Appellant concedes that his trial counsel did not object to this ( or any other)

portion of the trial court’s instruction to the jury at the guilt/innocence phase of the trial.

R.R. 9, at 6. The Appellant does concede that in the absence of objection at trial, the

Appellant must demonstrate egregious harm in the context of charge error alone. Almanza v.

State, 686 S.E. 2d 157, 171 (Tex. Crim. App. 1985)(op. On reh’g); Arrington v. State, –S.W.

3d– (Tex. Crim. App. 2015) (No. PD-1448-13, dec’d 1-14-15). The Appellant respectfully

contends, however, that this error is of constitutional dimension, and thus requires a showing

of only “some harm.”



BRIEF OF APPELLANT, TRENT

                                                                                            PAGE 6
       As noted above, the lack of a requirement of unanimity of the jury in deciding

whether the Appellant acted as a principal or as a party leaves a vacuum regarding the

Appellant’s actions for which he will be punished. He is, in effect, left with no notice of the

acts for which he must defend himself at the punishment phase. If Due Process entails a

requirement of “notice and a hearing,” then this has been denied to the Appellant, as he

enters his punishment “hearing” without reasonable or adequate “notice” of what acts will

form the basis of that punishment. This amounts to, at a minimum, “some harm,” as

constitutional error, and egregious harm as “charge error.” (See and cf. Ngo, supra.)

Issue Number Two: The trial court erred in allowing the State to raise extraneous offenses

                       alleged to have been committed by the Appellant at the punishment

                       phase of the trial when the State had not proven the Appellant’s

                       commission of the offenses beyond a reasonable doubt.

Summary of the Argument: Article 37.07, V.A.C.C.P., disallows consideration of

extraneous offenses unless proven beyond a reasonable doubt; in the instant case the State

brought forth extraneous matters without meeting the specific requirements of the statute.

       At the punishment phase of the trial, the Appellant called as a witness his mother,

Patricia Mumphrey. R.R. 10, at 48. On cross-examination of the Appellant’s mother by the

State, the following occurred:

                                       Q. Okay. So were you in his life in 2005 when
                       he was arrested for burglary of a vehicle?
                       A. Yes.
                       Q. Okay. And that's when he was a juvenile,
                       right?
                       A. Yes.
                       Q. Okay. Were you in his life in 2000- --
                       later in 2005, when he was arrested for forgery?

BRIEF OF APPELLANT, TRENT

                                                                                         PAGE 7
                       A. I've always been in his life.
R.R. 55.

No further documentation or proof regarding these matters appears in the record at the

punishment phase.

       Article 37.07, V.A.C.C.P., states as follows, in pertinent part:

                                      Sec. 3 (a)(1) Regardless of the plea and whether the
               punishment be assessed by the judge or the jury, evidence may be offered by
               the state and the defendant as to any matter the court deems relevant to
               sentencing, including but not limited to the prior criminal record of the
               defendant, his general reputation, his character, an opinion regarding his
               character, the circumstances of the offense for which he is being tried, and,
               notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other
               evidence of an extraneous crime or bad act that is shown beyond a reasonable
               doubt by evidence to have been committed by the defendant or for which he
               could be held criminally responsible, regardless of whether he has previously
               been charged with or finally convicted of the crime or act.

Article 37.07, V.A.C.C.P.

       The State interjected a juvenile case – burglary of a vehicle – and an arrest for

forgery, in 2005. Nowhere does the State prove the Appellant committed either of these

offenses – beyond a reasonable doubt or otherwise. This does not meet the explicit criteria

of Article 37.07, V.A.C.C.P., supra.

       The Appellant concedes that his trial counsel failed to object to the State’s reference

to these offenses or the attribution of their commission to the Appellant. R.R. 10, at 55. Yet,

the Appellant respectfully contends that the harm created enters the realm of the egregious.

See: Almanza, supra. By bringing a juvenile matter into consideration, then adding an

“arrest” for forgery, the State created a picture of Appellant as one who had a long and

varied history of criminal conduct.




BRIEF OF APPELLANT, TRENT

                                                                                           PAGE 8
                                          PRAYER

       The Appellant respectfully asks this case be reversed and remanded to the Trial

Court for a new hearing on punishment

                                                      Respectfully submitted,

                                                      __/s/ Clement Dunn_______________
                                                      140 East Tyler Street, Suite 240
                                                      Longview, Texas 75601
                                                      (903) 753-7071 Fax: 903-753-8783
                                                      State Bar No. 06249300


                              CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this brief was delivered to the Smith

County District Attorney’s Office, Tyler, Texas on this 25th day of June 2015.


                                              __/s/ Clement Dunn_______________


                           CERTIFICATE OF WORD COUNT

       I hereby certify that a total of 2747 words are included in this brief.


                                              __/s/ Clement Dunn_______________




BRIEF OF APPELLANT,TRENT


                                                                                        PAGE 9
