                                                                             ACCEPTED
                                                                         01-15-00095-CR
                                                              FIRST COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                  10/22/2015 11:08:56 PM
                                                                   CHRISTOPHER PRINE
                                                                                  CLERK

                NO. 01-15-00095-CR
                    01-15-00094-CR
                                                         FILED IN
            IN THE COURT OF APPEALS               1st COURT OF APPEALS
                                                      HOUSTON, TEXAS
         FOR THE FIRST DISTRICT OF TEXAS         10/22/2015 11:08:56 PM
                                                  CHRISTOPHER A. PRINE
                                                          Clerk
           DIONYSIOS SPIRO KOSMETATOS
                     Appellant

                          v.

                THE STATE OF TEXAS
                       Appellee


 On Appeal from Cause Number 1449194 & 1414418
 From the 338th District Court of Harris County, Texas



             BRIEF FOR THE APPELLANT




                               TONYA ROLLAND MCLAUGHLIN
                               TBN 24054176
                               4301 Yoakum Boulevard
                               Houston, Texas 77006
                               Phone: (713) 529-8500
                               Fax: (713) 456-2203

                               Counsel for Appellant




ORAL ARGUMENT RESPECTFULLY REQUESTED
               IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                            Dionysios Spiro Kosmetatos
                                      TDC# 1976828
                                      French M. Robertson Unit
                                      12071 FM 3522
                                      Abilene, Texas 79601

TRIAL PROSECUTORS:                    David Bernard
                                      Beth Exley
                                      Assistant District Attorneys
                                      Harris County, Texas
                                      1201 Franklin Avenue
                                      Houston, Texas 77002

DEFENSE COUNSEL AT HEARING:           Randall Ayers
                                      P.O. Box 1569
                                      Houston, Texas 77251


COUNSEL ON APPEAL FOR APPELLANT:      Tonya Rolland McLaughlin
                                      4301 Yoakum Boulevard
                                      Houston, Texas 77006


PRESIDING JUDGE:                      Hon. Brock Thomas
                                      338th District Court
                                      Harris County, Texas
                                      1201 Franklin Avenue
                                      Houston, Texas 77002




                              2
                                                  TABLE OF CONTENTS



IDENTITY OF PARTIES AND COUNSEL .................................................................. 2

TABLE OF CONTENTS .................................................................................................... 3

INDEX OF AUTHORITIES .............................................................................................. 4

STATEMENT OF THE CASE .......................................................................................... 5

STATEMENT REGARDING ORAL ARGUMENT .................................................... 6

ISSUE PRESENTED ........................................................................................................... 7

STATEMENT OF FACTS .................................................................................................. 7

SUMMARY OF THE ARGUMENT ................................................................................. 9

ARGUMENT ......................................................................................................................... 9
          THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS
          EVIDENCE WHERE THE OFFICER’S TESTIMONY WAS INSUFFICIENT TO
          SUPPORT THE FINDING THAT APPELLANT VERBALLY CONSENTED TO THE
          SEARCH OF HIS VEHICLE

          STANDARD OF REVIEW............................................................................................. 9

          OFFICER SMITH’S TESTIMONY WAS COMPLETELY LACKING IN OBJECTIVE
          FACTS THAT APPELLANT CONSENTED TO THE SEARCH. ................................... 10

PRAYER ............................................................................................................................... 14

CERTIFICATE OF SERVICE ......................................................................................... 14

CERTIFICATE OF COMPLIANCE .............................................................................. 15




                                                                   3
                                              INDEX OF AUTHORITIES
Cases

Bumper v. North Carolina, 391 U.S. 543, 549, 88 S.Ct. 1788, 1792 (1968) . .............................. 10

Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991).. ...................................................... 9

Flores v. State, 172 S.W.3d 742, 749 (Tex. App.—Houston [14th Dist.] 2005, no pet.).. .. 11, 12

Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). ............................................. 11, 13

Guevara v. State, 97 S.W.3d 579, 582 (Tex. Crim. App. 2003)... ..................................10, 12, 13

Johnson v. State, 68 S.W.3d 644 (Tex. Crim. App. 2002) .......................................................... 12

Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985)... ............................................... 12

Meekins v. State, 340 S.W.3d 454, 459 (Tex. Crim. App. 2011). .............................................. 10

Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000)... ........................................... 10, 11

Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). . .................................................. 9

Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008).. ............................................... 9

State v. Garcia, 2014 WL 4364623, *4 (Tex. App.—Austin, August 8, 2014, no pet. h.).. 12, 13

State v. Ibarra, 953 S.W.2d 242, 244-45 (Tex. Crim. App. 1997).. ........................................... 10

Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010)... ....................................... 9, 13



Constitutional Provisions, Statutes and Rules

U.S. Const. amend IV .......................................................................................................... 10

TEX. R. APP. PROC. 38.1(e) ....................................................................................................... 6

TEX. R. APP. PROC. 44.4. ................................................................................................ 13, 14

                                                                 4
                              STATEMENT OF THE CASE

      Appellant was charged in cause numbers 1414418, 1449194, and 1414419 with

two counts of Aggravated Assault - Public Servant and one count of Aggravated

Assault - Family Member, each alleged to have occurred on or about January 13, 2014.

(1 CR at 7; 2 CR at 5).1 The State filed a motion to consolidate the three cases into

one trial on November 24, 2014, which was granted. (2 CR at 6).


      On January 14, 2015, a jury found Appellant guilty in cause numbers 1414418

and 1449194 of both counts of Aggravated Assault – Public Servant. The jury found

Appellant not guilty in cause number 1414419 of Aggravated Assault – Family

Member. On January 14, 2015, the jury sentenced the Appellant to forty (40) years in

the Institutional Division of the Texas Department of Corrections. Appellant filed a

timely notice of appeal. (1 CR at 96; 2 CR at 38).


      The two convictions are combined in a single brief for purposes of appeal.




                                           5
                    STATEMENT REGARDING ORAL ARGUMENT

      Oral argument should be permitted because this appeal is not frivolous and the

facts and legal arguments are adequately presented. TEX. R. APP. PROC. 38.1(e).

Appellant requests oral argument because the Court of Appeal’s decision, whether the

trial court erred in denying Appellant’s motion to suppress evidence, would be

significantly aided by oral argument.

      **change wording**




                                         6
                                 ISSUE PRESENTED

      ISSUE: THE EVIDENCE IS LEGALLY INSUFFICENT TO ESTABLISH APPELLANT
      KNEW THE OFFICERS WERE PUBLIC SERVANTS.

                               STATEMENT OF FACTS

      On January 13, 2014, Appellant, Dionysios Kosmetatos, was at his mother in

law’s apartment with his children and wife.        Appellant and his wife, Rebecca

Kosmetatos, began arguing inside of the apartment. Rebecca and her mother, Patricia

Dow, left the Appellant and children inside of the apartment and went to the

apartment of downstairs neighbor, Urica Blackwell. Urica called 911. (4 RR at 74).

      Officer Patrick Woods and Officer Serguei Gromyko responded to the

disturbance call a little after midnight. (4 RR at 161). Officer Woods testified at this

point they only knew that the Appellant was alleged to have locked his wife out of the

apartment and Officer Gromyko was behind him. Officer Woods stated there had

been no report of weapons and he did not feel threatened walking up the stairs. (4 RR

at 154). CSU Officer Arthur Lyons testified the stairwell was dark with very limited

illumination and on the landing in front of Patricia’s apartment the light fixture was

out. (4 RR at 46-50). The available light was coming from the balcony below. (4 RR at

51). Officer Woods said as they were talking to Patricia when Appellant flung the

door open. At this point, he testified they had not knocked or announced police. (4

RR at 128, 147). Urica’s testimony conflicts with the Officer’s because she allegedly

saw the Officers arrive and knock on the door. (4 RR at 79). Officer Woods said

                                           7
Appellant screamed and rushed him. Patricia Dow first testified on direct for the State

that she saw Appellant come out of her apartment with a knife in his hand and heard

him threaten the Officers. (3 RR at 45-46). But lost credibility on cross when she

testified she did not see any altercation between Appellant and the Officers and never

saw Appellant with the knife. (4 RR at 26, 29). She only heard gunshots. (4 RR at 26).

Urica said she saw him come out screaming with a knife above his head and tried to

stab the Officers. Her testimony again conflicts with the Officers because she

allegedly saw them telling Appellant to put the knife down and then she heard

gunshots. (4 RR at 81-83). Officer Woods testified he did not tell Appellant to drop

the knife. (4 RR at 132). Urica also claims to have called 911 a second time because

the Officers needed help, but there is no recording or proof of the second call. (4 RR

at 108-109). Officers concur it was mere seconds from the time the door flung open

to the firing of his gun. (4 RR at 149, 154, 183). Officer Gromyko testified there was

no time to reflect. (4 RR at 184). Officer Woods fired his gun shooting Appellant

twice. (4 RR at 135, 174). He had never shot anyone before. Appellant fell down the

stairs. (4 RR at 138, 174). Neither Officer sustained any injuries. (4 RR at 158, 187).

      Officer Gromyko testified he thinks he saw Appellant on the balcony looking

at them when they first arrived; however, defense counsel pointed out this was

nowhere in the offense report supplements or their sworn statements. (4 RR at 190,

192; 5 RR at 24).

                            SUMMARY OF THE ARGUMENT
                                            8
      In Appellant’s only issue, he complains that without a warrant or consent

Officer Smith illegally searched his vehicle. Officer Smith’s testimony merely states a

legal conclusion and is insufficient to prove verbal consent was given. Evidence

obtained through this illegal search is in violation of the Fourth Amendment

protections and should have been suppressed.

                                      ARGUMENT

      ISSUE ONE: THE TRIAL COURT ERRED IN DENYING APELLANT’S MOTION
      FOR DIRECTED VERDICT BECAUSE THE EVIDENCE IS INSUFFICENT TO
      ESTABLISH APPELLANT KNEW THE OFFICERS WERE PUBLIC SERVANTS.

      ISSUE TWO: THE EVIDENCE IS INSUFFICENT FOR A RATIONAL JURY TO FIND
      BEYOND A REASONABLE DOUBT APPELLANT KNEW THE OFFICERS WERE
      PUBLIC SERVANTS.

      THE EVIDENCE IS INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION


      STANDARD OF REVIEW

      Challenging the trial court’s ruling on directed verdict is a challenge to the legal

sufficiency of the evidence to support the conviction. Williams v. State, 937 S.W.2d

479, 482 (Tex. Crim. App. 1996). Appellate courts review both legal and factual

sufficiency challenges using the same standard of review. Brooks v. State, 323 S.W.3d

893, 912 (Tex. Crim. App. 2010). When reviewing sufficiency of the evidence,

appellate courts examine all the evidence in the light most favorable to the verdict and

determine whether, based on that evidence and any reasonable inferences from it, any

rational trier of fact could have found the essential elements of the offense beyond a
                                            9
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d

560 (1979); Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The factfinder

is the exclusive judge of the credibility of witnesses and the weight of the evidence.

Isassi, 330 S.W.3d at 638; Brooks v. State, 323 S.W. 3d 893, 899 (Tex. Crim. App. 2010).

      It is the factfinder's duty to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson,

443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). When

the record supports conflicting inferences, the reviewing court presumes that the

factfinder resolved the conflicts in favor of the prosecution and defer to that

determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.


      APPLICABLE LAW

      A person commits an assault if he intentionally or knowingly threatens another

with imminent bodily injury. Tex. Penal Code Ann. § 22.01(a)(2) (2011). The offense

is elevated to an aggravated assault if the person uses or exhibits a deadly weapon

during the commission of the assault. Tex. Penal Code Ann. § 22.02(a)(2).

      Aggravated assault is punishable as a first-degree felony if the offense is

committed against a person the actor knows is a public servant while the public

servant is lawfully discharging an official duty. Tex. Penal Code Ann. § 22.02(b)(2)(B).

The statute creates a presumption that an accused knew that the person assaulted was




                                           10
a public servant if the person was wearing a distinctive uniform or badge indicating

the person's employment as a public servant. Tex. Penal Code Ann. § 22.02(c).




             ANALYSIS

      Due process requires the State to prove beyond a reasonable doubt every

element of the crime charged. Jackson, 443 U.S. at 313. The State was required to

prove beyond a reasonable doubt Appellant knew Officer Gromyko and Officer

Woods were public servants at the time of the offense. See Tex. Penal Code Ann. §

22.02(b)(2)(B). However, viewing all of the evidence in the light most favorable to the

prosecution a rational trier of fact could not have found this element beyond a

reasonable doubt.

      In McDaniel v. State, this court found the evidence was legally sufficient to

support the defendant’s conviction where his argument implied that he did not know

he was pointing a gun at police officers. McDaniel v. State, No. 01-11-00107-CR, 2012

Tex. App. LEXIS 406, 2012 WL 151465 (Tex. App. – Houston [1st Dist.] January 19,

2012, pet. ref’d) (mem. Op. not designated for publication). The Houston Police

Department was called to a weapons disturbance at an apartment. (Id. at 1). Three

Officers arrived in uniform to speak to the reportee that stated his roommate had

locked him out of the apartment after threatening him with a gun. (Id.). It was

approximately midnight, but all three officers testified there was enough light outside
                                           11
the apartment for the defendant to see their uniforms. (Id. at 2). They further testified

they knocked forcefully on the door and loudly announced Houston Police

Department three times with a total of 9 knocks when the defendant opened door

with a gun in hand. (Id.). Officers told him to drop the weapon and when the

defendant pointed it at them they tackled the defendant and subdued with force. (Id.).

      Although a similar scenario, this case differs. Houston Police Department was

likewise dispatched to an apartment where Appellant’s wife was claiming to have been

locked out, but there was no mention of weapons. Officer __ testified he never

knocked on the door or announced police. Officer __ testified it was dimly lit and

missing a light. No testimony from Officers that knife was pointed at them and never

told him to throw it down. Officers subdued Appellant with force by shooting him

multiple times.




      In this case, Appellant




      In Villa v. State, the fifth court of appeals found a rational trier of fact could

have found the appellant knew an officer was a public servant when they executed a
                                            12
“no knock” search warrant at the residence. The court found (1) each officer wore

uniforms emblazoned with the word “police” in large letters, (2) officers repeatedly

and continually identified themselves as officers, and (3) there was a live feed

television monitor in the bedroom where appellant was located, where one could see

outside. Villa v. State, No. 05-10-00584-CR, 2011 Tex. App. LEXIS 10190, 2011 WL

6848392, at * (Tex. App. – Dallas 30, 2011, no pet.) (mem. Op. not designated for

publication).




       Viewing all of the evidence in the light most favorable to the prosecution,

giving full play to the responsibility of the trier of fact to resolve conflicts of

testimony, to weight the evidence, and draw reasonable inferenseces from basic facts

to ultimate facts a rational jury could not have found BRD that D…

       The jury could not have rationally inferred…

       The necessary inferences are not reasonable based upon the combined

evidence when viewed in light most favorable to the verdict.

                        The jury could not have rationally inferred…




                                             13
      Hamilton v. State, 2007 Tex. App. LEXIS 1559, 2007 WL 624700 (Tex. App. –

Houston [1st Dist.] March 1, 2007, pet. ref’d) (mem. Op. not designated for

publication).

      -notes the presumption (page 13)

      -arrived in marked patrol cars, wearing HPD uniforms, officer testified lighting

      in the hallway was sufficient for shooter to see and believed shooter knew he

      was a police officer. (page 14)

      -HPD dispatched to residence for home invasion in progress (p. 4)




                                        PRAYER
                                          14
      Appellant prays this Court to reverse the conviction and remand the case to the

trial court for entry of an order of acquittal. TEX. R. APP. PROC. 44.2.



                                                 Respectfully submitted,




                                                 _s/Tonya Rolland McLaughlin
                                                 Tonya Rolland McLaughlin
                                                 4301 Yoakum Boulevard
                                                 Houston Texas 77006
                                                 Phone: (713) 529-8500
                                                 Fax: (713) 453-2203
                                                 TBN 24054176


                              CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been mailed to the
following address:

      Alan Curry
      Chief Prosecutor, Appellate Division
      Harris County District Attorney’s Office
      1201 Franklin Suite 600
      Houston, Texas 77002-1923

                                                 _s/Tonya Rolland McLaughlin
                                                 Tonya Rolland McLaughlin




                            CERTIFICATE OF COMPLIANCE

                                            15
       I certify that this computer-generated document has a word count of 2, 608
words, based upon the representation provided by the word processing program used
to create the document.


                                            _s/Tonya Rolland McLaughlin
                                            Tonya Rolland McLaughlin




                                       16
