                                                             PD-0469&470&471&472-15
                                                             COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
December 17, 2015                                          Transmitted 12/17/2015 1:51:39 PM
                                                             Accepted 12/17/2015 2:49:44 PM
                                                                              ABEL ACOSTA
                                IN THE                                                CLERK
                      COURT OF CRIMINAL APPEALS

   JOHN B. ISBELL,                §
       APPELLANT                  §
   V.                             §       NO. PD-0469-15
                                  §
   THE STATE OF TEXAS,            §
        APPELLEE                  §

         ON THE GRANTING OF THE STATE’S PETITION FOR DISCRETIONARY
   REVIEW OF THE DECISION OF THE COURT OF APPEALS FOR THE SECOND
   COURT OF APPEALS DISTRICT OF TEXAS IN CAUSE NUMBERS 02-14-00124-
   CR, 02-14-00125-CR, 02-14-00126-CR, AND 02-14-00127-CR, REVERSING THE
   JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBERS 1290119D, 1290121D,
   1290851D, AND 1290852D IN CRIMINAL DISTRICT COURT NO. 4 OF TARRANT
   COUNTY, TEXAS; THE HONORABLE MIKE THOMAS, PRESIDING.


                         APPELLANT’S REPLY
                        BRIEF ON THE MERITS


                                        BARRY G. JOHNSON
                                        2821 E. Lancaster
                                        Fort Worth, Texas 76103
                                        SBE 10683000
                                        817-531-9665
                                        fax 817-534-9888
                                        barrygj@aol

                                       ATTORNEY for APPELLANT
                                           TABLE OF CONTENTS


                                                                                                                   PAGE


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

THE CASE IN BRIEF ............................................................................................... 1

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

SUMMARY OF APPELLANT’S ARGUMENT ..................................................... 3

DISCUSSION ............................................................................................................ 4

      Because the cases were tried together, they are inextricably linked.

  The erroneous charge in the cases that occurred on July 17 made conviction more
likely in thise cases, which in turn made conviction on the offenses that occurred
on July 18 more likely.

CONCLUSION ……………………………………………………………………..8

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

CERTIFICATE OF COMPLIANCE ......................................................................... 9

CERTIFICATE OF SERVICE ................................................................................10




                                                             ii
                                      INDEX OF AUTHORITIES

CASES                                                                                                    PAGES

Allen v. State ,
 253 S.W.3d 260, 264 (Tex. Crim. App. 2008)…………………………………6

Almanza v. State,
   686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g)…………………… 5

Gill v.State , 873 S.W.2d 45 (Tex. Cr. App. 1994)………………………………7

Heron v. State,
  86 S.W.3d 621 (Tex. Crim. App. 2002)………………………………………6

Lawton v. State,
  913 S.W.2d 542 (Tex. Crim. App. 1995), overruled on other grounds………….7

Mitchell v. State,
   No. 11-01-00294-CR, 2002 WL 32344526 (Tex. App.—Eastland 2002,
   no pet.) (unpublished) ................................................................................... .6,7

McDuff v. State, 939 S.W.2d 45 (Tex. Cr. App. 1994)……………………………7

Saunders v. State, 817 S.W.2d 688 Cim. App. 1991) ……………………………6



Code

TEX. CODE CRIM. PROC. art. 38.14 ............................................................................. 5




                                                        iii
                                                        3
                                 IN THE
                       COURT OF CRIMINAL APPEALS

JOHN B. ISBELL,                       §
    APPELLANT                         §
V.                                    §         NO. PD-0469-15
                                      §
THE STATE OF TEXAS,                   §
     APPELLEE                         §

      ON THE GRANTING OF THE STATE’S PETITION FOR DISCRETIONARY
REVIEW OF THE DECISION OF THE COURT OF APPEALS FOR THE SECOND
COURT OF APPEALS DISTRICT OF TEXAS IN CAUSE NUMBERS 02-14-00124-
CR, 02-14-00125-CR, 02-14-00126-CR, AND 02-14-00127-CR, REVERSING THE
JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBERS 1290119D, 1290121D,
1290851D, AND 1290852D IN CRIMINAL DISTRICT COURT NO. 4 OF TARRANT
COUNTY, TEXAS; THE HONORABLE MIKE THOMAS, PRESIDING.

TO THE HONORABLE COURT OF CRIMINAL APPEALS:


                              THE CASE IN BRIEF

      Appellant was convicted of (1) aggravated assault of a public servant (pointing

a shotgun at him); (2) deadly conduct (shooting a woman’s car); (3) aggravated

assault on a public servant (ramming the officer’s patrol car); and (4) evading

arrest in a vehicle. Appellant was sentenced to forty-five years for each assault,

twenty years for deadly conduct, and twenty years for evading arrest. RR VI – 38.




                                          1
                             STATEMENT OF FACTS

      The State has accurately set out the facts with one caveat. With respect to the

events that occurred in the vehicle Jamie Haney was driving on July 17, 2012, they

are true as to the conducy of appellant, only if the testimony of accomplice Jamie

Haney is believed. The fact that she was an accomplice and that her testimony was

uncorroborated is central to this appeal.




                                            2
                      SUMMARY OF APPELLANT’S ARGUMENT

      Because the State moved to consolidate the trials of the offenses that

occurred on separate days, over the objection of the Appellant, it was proper for the

Court of Appeals to consider them jointly in deciding whether substantial rights of

appellant were violated because of the erroneous jury charge.

      The Court of Appeals correctly decided that the error caused egregious harm

to Appellant in all the cases that were tried together.

      The erroneous jury charge occurred in jury charges on the July 17 offenses

which alleged pointing a shotgun at a police officer and shooting a gun at a

civilian’s car. The lack of the accomplice witness instruction made it easier for the

jury to convict on those charges. The jury’s determination that Isbell had used a

shotgun and pointed it at a police officer on July 17 probably made it easier for the

jury to convict on the July 18 charge involving aggravated assault on a police

officer, in violation of the rights of the Appellant.




                                           3
                                    DISCUSSION

            Should the Court of Appeals have reversed the convictions on the July 18

            offenses when the erroneous jury charge directly affected only the July

            17 offenses ?

     In its opinion the Court of Appeals asserted that the lack of accomplice

witness instruction ―permeated‖ the entire trial.

     Four offenses were tried together. Two occurred during a police chase on July

17, 2002 when Jamey Haney drove a vehicle that was pursued by the police, and

her passenger pointed a shotgun at a police officer, an aggravated assault, and

fired a shotgun at another car, deadly conduct. Haney successfully eluded police

that day.

     On July 18, 2012, Isbell was driving the same vehicle as Haney had driven

the day before, it was spotted by police officers, and a second police chase ensued.

Haney was a passenger. The charges arising from that chase were evading arrest in

a vehicle and aggravated assault by ramming a police car. Both Haney and Isbell

were arrested at the scene following the police chase.

     At trial Haney testified that Isbell was her passenger on July 17, and that he

had fired the shotgun.




                                          4
      The Court of Appeals reversed all four convictions, holding that Isbell

 suffered egregious harm because of the failure of the trial court to give an

 accomplice witness instruction as required by Article 38.14 of the Texas Rules of

 Criminal Procedure.

      In their brief, the state of Texas argues, on the one hand, that ―nothing on the

face of the record‖ would indicate that the lack of corroboration for the July 17

offenses would have anything to do with the July 18 offenses, (State’s Brief, p.8),

and on the other hand that Jamie Haney’s presence on July 18 helps connect Isbell

to the July 17 offenses (State’s Brief, p. 11).

      Anticipating the prejudicial affect of trying the cases together, Appellant

 objected to the State’s Motion to consolidate. RR II--5.

      The states seems to contend that no accomplice witness instruction was

necessary because the July 18 incident obviously corroborates Jamie Haney’s

testimony.

      In Almanza v. State , 686 S.W. 2d 157, (Tex. Crim. App. 1985) (op. on reh’g)

this court held that the appropriate harm analysis depends on whether the error was

preserved. Where it was not, as here, egregious harm must be shown. Under the

egregious harm standard, the omission of the accomplice witness instruction is

generally harmless unless the corroborating evidence is ―so unconvincing in fact as


                                            5
to render the State’s overall case for conviction clearly and significantly less

persuasive. Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991) In the

Saunders case egregious harm was shown because the corroborating evidence was

weak and was contradicted by other evidence. Heron v. State 86 S.W.3d 621, (Tex.

Crim. App. 2002).

      Egregious harm occurs when an error affects the very basis of a case,

deprives the defendant of a valuable right, or vitally affects a defensive theory.

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

      The state cites the unreported case of Mitchell v. State, No. 11-01-00294-CR,

 2002 WL 32344526 (Tex. App.—Eastland 2002, no pet.) (unpublished), in support

 of its contention that Haney’s testimony was corroborated by evidence of the

 events of July 18 in which Isbell was arrested at the scene following a police chase.

      It is significant that Mitchell was an appeal based on whether the

 corroboration was sufficient to corroborate the testimony of the accomplice. In that

 case there was not an issue on appeal of whether an accomplice instruction should

 have been given.

       The Mitchell opinion, therefore, discusses whether a subsequent similar

 offense constitutes adequate corroboration. That is a separate and distinct issue

 from whether an accomplice instruction should have been given.


                                          6
     Therefore, whether an analysis of Mitchell is helpful or necessary may be

questionable. That case involved two purse snatchings, the first of which led to an

aggravated robbery charge, but the victim could not identify the defendant. The co-

defendant, an accomplice, testified that Mitchell aided or assisted her in

committing the robbery. The second incident occurred a day later, and the court

noted some specific similarities, in determining that the second offense

corroborated the first: (1) both offense were at the same time of day; (2) both

occurred in the same parking lot; (3) the same person accompanied the defendant

each time; and (4) both victims were older women. The court held that the

similarities justified a determination that Mitchell had committed both offenses and

that a common scheme or plan existed.

     Extraneous offenses can corroborate accomplice testimony. Lawton v. State,

913 S.W. 2d 542 (Tex. Cr. App.1995). It is important to note that when

considering accomplice testimony in determining the sufficiency of the

corroborating testimony, all of the accomplice testimony is excluded from

consideration. McDuff v. State, 939 S.W.2d 45 (Tex. Cr. App. 1994). The

remaining evidence is then considered in the light most favorable to the jury’s

verdict. Gill v. State, 873 S.W.2d 45 (Tex. Cr. App. 1994).




                                        7
     In the instant case, the only corroborating evidence is that Isbell was driving

the same vehicle on July 18 that Haney had driven on July 17.

                                   CONCLUSION

     The Court of appeals correctly determined that the error in failing to include

an accomplice witness instruction in the charge constituted egregious error.

     The failure to include such instruction made it easier for the jury to convict

Isbell of the offenses of aggravated assault of a public servant by pointing a

shotgun at the officer and the deadly conduct charge involving firing the gun at a

vehicle, which occurred on July 17, 2012.

     The fact that the jury found Isbell guilty of the July 17 offenses then made it

easier for them to convict him of the aggravated assault which occurred on July 18

and to make a finding of use of a deadly weapon.

     But for the shotgun cases, the jury probably would have been less inclined to

find that Isbell intentionally struck the officer’s vehicle on July 18 with his vehicle.

As defense counsel argued the video showed that there was doubt that Isbell

intentionally drove into the officer Parson’s car and doubt that he intended to use it

as a deadly weapon. RR IV---30-31. Although he drove recklessly there was doubt

about his intent. The conviction of the previous day’s shotgun offense, probably

swayed the jury on that issue.

                                          8
                                        PRAYER

     Appellant prays that this court affirm the judgment of the court of appeals

and remand the cases for a new trial.

     In the alternative, in the event that this court determines that The Court of

appeals reversed in error, Appellant prays that this court remand the cases to the

Court of Appeals for consideration of Appellant’s Grounds of Error which that

court did not reach in its previous consideration of the cases.

                                              Respectfully submitted,

                                              /s/Barry G. Johnson
                                               Barry G. Johnson
                                              BAR CARD NO. 10683000
                                              2821 E. LANCASTER
                                              FORT WORTH, TEXAS 76103
                                              817-531-9665 FAX 817-534-9888
                                              barrygj@aol.com
                                              Attorney for Appellant


                        CERTIFICATE OF COMPLIANCE

     I certify that this document contains 1,951 words according to the software used to
prepare it.

                                               /s/ Barry G. Johnson
                                               BARRY G. JOHNSON




                                          9
                          CERTIFICATE OF SERVICE

      A copy of the State’s brief on the merits has been sent to opposing counsel,

Hon. James Gibson, coaappellatealerts@tarrantcounty.com, 400 W. Belknap, Fort Worth,

Texas 76196,     and to Hon. Lisa McMinn, information@spa.texas.gov State

Prosecuting Attorney, P.O. Box 13046, Capitol Station, Austin, Texas 78711 on

December 17, 2015.


                                             /s/ Barry G. Johnson
                                             BARRY G. JOHNSO




                                        10
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