                                                                           PD-0052-15
                                                          COURT OF CRIMINAL APPEALS
                                                                           AUSTIN, TEXAS
                                                         Transmitted 2/6/2015 3:10:29 PM
                                                           Accepted 2/6/2015 4:11:57 PM
                                                                            ABEL ACOSTA
                                                                                    CLERK
                              NO. 0052-15

                 IN THE COURT OF CRIMINAL APPEALS
__________________________________________________________________


               JULIA RHOTON ANDREWS, Petitioner

                                   v.

                 THE STATE OF TEXAS, Respondent

________________________________________________________________________


 PETITION FOR DISCRETIONARY REVIEW
________________________________________________________________________


     FROM THE COURT OF APPEALS, NINTH JUDICIAL DISTRICT
                       NO. 09-13-00407-CR
        FROM THE DISTRICT COURT OF ORANGE COUNTY
         260TH JUDICIAL DISTRICT ; Cause No. D-130,174-R
          THE HONORABLE BUDDIE J. HAHN PRESIDING


                                            CHRISTINE R. BROWN-ZETO
                                            Texas Bar No. 03102200
                                            Attorney at Law
                                            1107 Green Avenue
         February 6, 2015                   Orange, TX 77630
                                            (409) 886-8558 - Phone
                                            (409) 883-6523 - Fax
                                            crbrown@exp.net
                                            AttorneyforPetitioner


                      O RAL A RGUMENT R EQUESTED
                        IDENTITY OF PARTIES AND COUNSEL


Petitioner:               JULIA RHOTON ANDREWS

   Trial Counsel:         Greg Dumas
                          1601 Main St.
                          Orange, TX 77630
                          State Bar No.06201080

   Appellate Counsel:     Denise I. Gremillion
                          202 S. Border St.
                          Orange, TX 77630
                          State Bar No. 24041974

                          Christine R. Brown-Zeto
                          1107 Green Avenue
                          Orange, TX 77630
                          State Bar No. 03102200


Respondent:               State of Texas

   Counsel:               Cory Kneeland
   (Trial and Appeal)     Orange County Assistant District Attorney
                          801 W Division Ave.
                          Orange, TX 77630
                          State Bar No. 24041264




                                           i
                                           TABLE OF CONTENTS


Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents                                                                                             ii

Index of Authorities                                                                                          iii

Statement of the Nature and Result of the Case                                                                1

Request for Oral Argument                                                                                     2

Statement and Procedural History in the Case                                                                  2

Grounds for Review                                                                                            3

         Error 1:       The evidence was legally and factually insufficient for
                        the jury to rationally find beyond a reasonable doubt that
                        Petitioner acted with the intent to cause Peddy's death or
                        serious bodily injury to him . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement of Facts                                                                                            3

Summary of the Argument                                                                                       7

Prayer for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Certificate of Compliance                                                                                     13

Certificate of Service                                                                                        13

Appendix                                                                                                      14




                                                          ii
                                        Index of Authorities

Cases

Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012)                               12

Brooks v. State,323 S.W.3d 893 (Tex. Crim. App. 2010)                               8

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007)                             8

Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001)                               10

Foster v. State, 639 S.W.2d 691 (Tex. Crim. App. 1982)                              10

Gonzalez v. State, 337 S.W.3d at 479 (Tex. Crim. App. ) . . . . . . . . . . . . .   11

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)             8,9,10

Turner v. State, 805 S.W.2d 423 (Tex. Crim. App. 1991)                              10

Statutes

TEX. PEN.CODE ANN. § 19.02(b)                                                       9

TEX. PEN.CODE ANN. § 19.04                                                          9

TEX. PEN.CODE ANN. § 6.03(c)                                                        9




                                                        iii
STATEMENT OF THE NATURE AND RESULTS OF THE CASE

      On March 13, 2013, Petitioner was charged by indictment with the first degree

felony offense of Murder. (C.R. 5).           The Indictment originally charged that

Petitioner, on or about November 28, 2012, did then and there intentionally and

knowingly cause the death of an individual, Randy Peddy, by shooting the said Randy

Peddy with a firearm.(C.R. 5). On July 29, 2013, the Indictment was amended by the

State without objection to add a second paragraph alleging that Petitioner, with intent

to cause serious bodily injury to Randy Peddy, did then and there commit an act

clearly dangerous to human life that caused the death of said Randy Peddy, by

shooting Randy Peddy with a firearm. (C.R. 36, 56).

      Voir dire was conducted on August05, 2013, and a jury was sworn. (3 R.R. 7-

74). Petitioner entered a plea of not guilty to the allegations in the indictment, and

the case was tried to the jury. (4 R.R. 6).

      After three days of trial, the charge of the court was presented to the jury; the

charge permitted the jury to consider both the murder charge and the lesser-included

offense of manslaughter. After deliberating, the jury found Petitioner guilty of

Murder.    (8 R.R. 21-22).      The jury assessed punishment at forty-four years

confinement in State Jail and a $4,400.00 fine. (8 R.R. 22). On August 8, 2013, the




                                              1
trial court entered a Judgment of Conviction by Jury in conformity with the jury’s

verdict. (C.R. 59).

      Petitioner requests oral argument in the event that this Court of Appeals feels

that oral argument would further aid them in their determination.

      The Court of Appeals for the Ninth Judicial District affirmed the decision of

the trial court on December 10, 2014. No Motion for Rehearing was filed. It is from

this decision that the Petitioner appeals.

                      REQUEST FOR ORAL ARGUMENT

      Petitioner requests oral argument in the event that this Court of Appeals feels

that oral argument would further aid them in their determination.

     STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

      The Court of Appeals for the Ninth Judicial District affirmed the decision of

the trial court on December 10, 2014. No Motion for Rehearing was filed. It is from

this decision that the Petitioner appeals.




                                             2
                             GROUND FOR REVIEW

ERROR 1:            The evidence was legally and factually insufficient for the jury to
rationally find beyond a reasonable doubt that Petitioner acted with the intent to cause
Peddy’s death or cause serious bodily injury to him.

                                  Statement of Facts

      Prior to this event, Petitioner had known the victim, Randy Peddy(“Peddy”) for

10 to 15 years. (4 R.R. 57) In or around approximately June, 2012, Petitioner and

Peddy were involved in a short relationship and were affectionate with each other.

(5 R.R. 87). In July, 2013 Peddy began dating Petitioner’s daughter, Jackie Uzzell

(Uzzell), and they continued that relationship until Peddy’s death. (5 R.R. 86). Peddy

stayed at Petitioner’s home periodically. (4 R.R. 57).

      In the early afternoon of Wednesday, November 28, 2012, Peddy was at

Petitioner’s home, where he was supposed to have been working on Petitioner’s car.

(4 R.R. 57). Petitioner noticed that Peddy had been drinking, and she saw him with

a Vodka bottle. (4 R.R. 58-59). In her police statement, Petitioner noted that Peddy

was a frequent beer drinker, but that Vodka made him “mean, hateful, ugly, and a

totally different person.” (4 C.R. 58-59).

      At Peddy’s request, Petitioner brought him back to his father’s house, where

she instructed him that he could come over the following day if he quit drinking. (4


                                           3
R.R. 59-60). Petitioner and Peddy engaged in a minor verbal altercation, then

Petitioner left Peddy’s father’s house. (4 R.R. 60).

      At approximately5:00 to 5:30 that afternoon, Peddy returned to Petitioner’s

home, purportedly looking for his battery. (4 R.R. 60). At that time, Petitioner was

on the phone with Uzzell, who requested that Petitioner get her phone back from

Peddy. (4 R.R. 60). Peddy refused to return the phone, and left the residence again.

(4 R.R 60).

      At approximately 8:30 that evening, Peddy again returned to Petitioner’s home.

(4 R.R. 60-61). Petitioner was at the home with her granddaughter, Jessica Andrews

(“Jessica”), and her grandson’s girlfriend, Kailyn Hunt (“Hunt”). (4 R.R. 56). On

Peddy’s arrival, Petitioner called Uzzell to let her know Peddy was back; Uzzell did

not want Peddy there while he was drinking because he got “physically assaultive”

with her when he drank Vodka. (4 R.R. 60-61). Uzzell called the police; Officer Greg

Harbison (“Harbison”) arrived at the house at approximately 8:40 p.m. and

questioned Petitioner about her wellbeing as requested by Uzzell. (4 R.R. 62).

Petitioner told Harbison that Peddy was intoxicated, but that he was going to go to

sleep and would not cause any more problems, so she was fine. (4 R.R. 16, 62). With

that, the officers left. (4 R.R. 62). Peddy then became very agitated over the police

having been called, and he demanded to know who had called them. (4 R.R. 62-63).

                                         4
      Shortly after that, Peddy went outside and was overheard by Petitioner and

Hunt, who were inside the home, cursing and having a very heated telephone

conversation with a person who they believed to have been Uzzell. (4 R.R.63-64).

After hearing glass breaking and a banging noise, Petitioner went outside to find

Peddy throwing cement blocks through the windows of her car. (4 R.R. 64).

Petitioner approached Peddy to stop him from further damaging her car, and a verbal

and physical confrontation ensued, with Peddy threatening physical violence against

Petitioner. (4 R.R. 64-65). Petitioner, now fearing that Peddy would hit her with one

of the cement bricks, returned to the house with Peddy throwing things at her as she

did. (4 R.R. 65). When she got back into the house, Petitioner locked the door

behind her, then retrieved a .22 rifle from behind her bedroom door to scare Peddy

off. (4 R.R. 65). Petitioner walked out the front door and turned toward Peddy, who

was standing on the other side of the driveway, and she fired one shot toward the

direction of the street. (4 R.R. 66). Rather than leave, Peddy responded by cursing

at Petitioner and continuing to move toward her. (4 R.R. 66). Petitioner then pointed

the gun more toward Peddy and fired what she believed was three more shots, after

which Peddy slumped over, grabbing at his stomach. (4 R.R. 66). Petitioner, in

shock, went back inside the house, put the gun back in her room, and told Jessica and

Hunt that she had shot Peddy. (4 R.R. 66). Petitioner appeared visibly distraught,

                                         5
physically upset and was witnessed shaking and crying. (5 R.R. 114). Petitioner’s

grandson arrived shortly after the shooting and Petitioner also told him “I shot Randy.

I didn’t mean to.” (4 R.R. 66).

      At approximately 9:40 that evening, Officer Greg Harbison(“Harbison”)

received the call for a disturbance at Petitioner’s home. (4 R.R. 17). He returned to

the home with his partner, Deputy Helton, and Sergeant Brading from the Vidor

Police Department. (4 R.R. 19). Upon arriving at the home for the second time that

day, Harbison observed Peddy’s body lying just west of the residence, off to the side

of the driveway. (4 R.R. 17). Harbison checked on Peddy, and determined that he was

deceased. (4 R.R. 19-20). Harbison observed damage to Petitioner’s vehicle,

including the windshield being shattered and cinder blocks in the front and back

windshield. (4 R.R. 31).

      Harbison went into the residence and spoke with Petitioner. (4 R.R. 20).

Harbison witnessed that Petitioner was crying and very upset, and continually saying

she was sorry. (4 R.R. 35-36). Petitioner reported the sequence of events to

Harbison, including that Peddy had assaulted her. (4 R.R. 32). Harbison noted

redness and an abrasion to the right side of Petitioner’s face. (4 R.R. 22-23).

Harbison testified at trial that the injuries looked like they had probably just occurred

as a result of the reported assault. (4 R.R. 34). Petitioner admitted that she had shot

                                           6
Peddy, stating that she was trying to fire warning shots and that he continued walking

toward her, so she fired again. (4 R.R. 25). Petitioner was then transported to the

Orange County Sheriff’s Office to be interviewed. (4 R.R. 44).

                          SUMMARY OF THE ARGUMENT

      Petitioner’s conviction should be reversed and a judgment of acquittal entered

because the evidence was legally and factually insufficient to prove that Petitioner

acted with intent to kill or cause serious bodily injury to Peddy at the time that she

fired warning shots in his direction. Alternatively, her conviction should be reversed

and the verdict reformed to the lesser-included offense of manslaughter if the Court

finds that sufficient evidence exists that Petitioner caused Peddy’s death while acting

with reckless disregard for the consequences of her actions.

                                     ARGUMENT



      The Court of Appeals determined that the evidence was legally and factually

sufficient for the jury to rationally find beyond a reasonable doubt that the

Petitioner acted with the intent to cause Peddy’s death or serious bodily injury to

him. In making this determination there was such a departure from the accepted

and usual course of judicial proceedings as to warrant an exercise of the Court of

Criminal Appeals’ power of supervision.


                                          7
A.    Standard of Review

      The Court of Criminal Appeals has held that “a rigorous and proper

application” of the Jackson legal sufficiency standard is "the only standard that a

reviewing court should apply in determining whether the evidence is sufficient to

support each element of a criminal offense that the State is required to prove beyond

a reasonable doubt”.Brooks v. State,323 S.W.3d 893, 902-03, 906, 912 (Tex. Crim.

App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979)). The reviewing court considers both direct and circumstantial

evidence and all reasonable inferences that may be drawn therefrom in making its

determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An

appellate court then determines whether the necessary inferences are reasonable based

upon the combined and cumulative force of all the evidence when viewed in the light

most favorable to the verdict. Id.

      To determine the sufficiency of the evidence under the Jackson standard, an

appellate court must review all of the evidence in the light most favorable to the

verdict to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt .Jackson, 443 U.S. at 319. Evidence

is legally insufficient under this standard if the record contains no evidence, or merely




                                           8
a “modicum” of evidence, probative of an essential element of the offense, or if the

evidence conclusively establishes a reasonable doubt. Id. at 320.

B.    Legal Analysis

      In order to support a conviction for murder in this case, a felony of the first

degree, the State bore the burden to prove beyond a reasonable doubt that Petitioner:

(1) intentionally or knowingly caused Peddy’s death, or (2) intended to cause serious

bodily injury and committed an act clearly dangerous to human life that caused

Peddy’s death. TEX. PEN. CODE § 19.02(b); (4 R.R. 5)§§.

      To support a conviction for manslaughter, on the other hand, the evidence must

prove that Petitioner recklessly caused Peddy’s death. TEX. PEN. CODE § 19.04§§.

A person acts recklessly “when he is aware of but consciously disregards a substantial

and unjustifiable risk.” TEX. PEN. CODE § 6.03(c)§§. “The risk must be of such a

nature and degree that its disregard constitutes a gross deviation from the standard of

care that an ordinary person would exercise under all the circumstances as viewed

from the actor’s standpoint.” Id.§§

      Thus, the primary issue in this case is whether Petitioner acted with the specific

intent to kill or harm Peddy, or whether Peddy’s death was the accidental result of

Petitioner firing her weapon in his direction in an attempt to scare him away because

Petitioner was in fear for her safety.


                                          9
      In determining whether the evidence is legally sufficient to support a

conviction for murder, the court must consider all the evidence to determine whether

a rational fact finder could have found intent to kill or cause serious bodily injury

beyond a reasonable doubt. Jackson, 443 U.S. at 318-19. Even the mere intent to pull

the trigger of a firearm does not satisfy the requirement that a defendant had the

specific intent to kill the victim. See Turner v. State, 805 S.W.2d 423, 430

(Tex.Crim.App.1991).

      Intent is generally proven through the circumstantial evidence surrounding the

crime, and the jury may infer the requisite intent from a defendant’s conduct,

including both her conduct and her words. Conner v. State, 67 S.W.3d 192, 197 (Tex.

Crim. App. 2001). Further, while specific intent to kill or cause serious bodily injury

may be presumed from a defendant’s use of a deadly weapon, that presumption is

rebuttable. Foster v. State, 639 S.W.2d 691, 695 (Tex. Crim. App. 1982). Where

there is evidence from both sides that rebuts the presumption, as is the case herein,

there remains no evidence that the Petitioner acted with specific intent to kill or cause

serious bodily injury. Id.

      In this case, the undisputed circumstances leading up to Peddy’s shooting, as

well as Petitioner’s conduct and her words after Peddy was shot, all demonstrate

Petitioner’s state of mind and lack of intent to harm or kill Peddy. Specifically,

                                           10
Peddy had been drinking and was causing a disturbance, including cursing and

causing property damage, prior to the shooting, even having already required police

to be called to the home that day. (4 R.R. 60-62).Peddy assaulted Petitioner, and even

the investigating officer confirmed that the redness and abrasion to the right side of

Petitioner’s face looked like they had probably just occurred as a result of the

reported assault.   (4 R.R. 22-23, 34). Witnesses reported that Petitioner was

distraught, shaking and crying and very upset, continually saying she was sorry and

that she didn’t mean for it to happen, after the shooting occurred. (4 R.R. 35-36, 66;

5 R.R. 114). Petitioner herself reported to police that she was not aiming for Peddy,

but was only trying to fire warning shots because she feared for her safety. (4 R.R.

66). Notably, this testimony was unrebutted. Indeed, there was no affirmative

evidence presented at trial of specific intent to kill or harm Peddy.

      This constitutes no evidence, or nothing more than a “modicum” of evidence,

probative of an essential element of the offense; accordingly, the evidence is

insufficient to support Petitioner’s conviction in this case. Gonzalez, 337 S.W.3d at

479. Therefore, Petitioner’s conviction should be reversed and a judgment of acquittal

rendered. Alternatively, Petitioner’s conviction should be reversed and the verdict

reformed to the lesser-included offense of manslaughter in conformity with the

evidence presented at trial. See Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim.

                                          11
App. 2012) (holding that a court of appeals may reform a trial court’s judgment to a

lesser-included offense).

                                PRAYER FOR RELIEF

      Petitioner prays this Court sustain the issues as set forth above, reverse the trial

court's judgment and render a verdict of acquittal; alternatively, Petitioner prays that

this Court reform the verdict to the lesser-included offense of manslaughter, and

remand the case to the trial court for a new trial as to sentencing.

      Oral argument is requested in the event that the court determines that it will aid

in their determination.



                                                Respectfully submitted,
                                                CHRISTINE R. BROWN-ZETO
                                                ATTORNEY AT LAW
                                                1107 Green Ave.
                                                Orange, TX 77630
                                                Phone: (409) 886-8558
                                                Fax: (409) 883-6523
                                                crbrown@exp.net

                                                By:      /s/ Christine R. Brown-Zeto
                                                      Christine R. Brown-Zeto
                                                      State Bar No. 03102200

                                                ATTORNEY FOR PETITIONER
                                                JULIA RHOTON ANDREWS



                                           12
                         CERTIFICATE OF COMPLIANCE
      I certify that this document was generated by a computer using Word Perfect
12, which indicates that the word count of this document is 3074 excluding portions
omitted from that count per Tex. R. App. P. 9.4 (i).

                                               /s/ Christine R. Brown-Zeto
                                             Christine R. Brown-Zeto


                         CERTIFICATE OF SERVICE
      I certify that a true and correct copy of the foregoing was served on the
following by hand delivery on February 6, 2015:

      Tom Kelley
      Assistant District Attorney
      801 W. Division Street
      Orange, Texas 77630
      Attorney for Respondent, State of Texas

                                               /s/ Christine R. Brown-Zeto
                                             Christine R. Brown-Zeto




                                        13
APPENDIX




   14
