                                                                                        ACCEPTED
                                                                                    03-15-00247-CR
                                                                                            5924535
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
                                                                                7/2/2015 3:20:31 PM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK
                     IN THE THIRD COURT OF APPEALS

                         FOR THE STATE OF TEXAS                    FILED IN
                                                            3rd COURT OF APPEALS
                                                                AUSTIN, TEXAS
                                                            7/2/2015 3:20:31 PM
KAYLA JEAN LARDIERI,                                          JEFFREY D. KYLE
Appellant                                                           Clerk


                                                       NO. 03-15-00247-CR
V.

THE STATE OF TEXAS,
Appellee


                             APPELLANT'S BRIEF


     On appeal from the 207th Judicial District Court of Comal County, Texas
                      Trial Court Cause No. CR2014-090
                 Honorable Dib Waldrip, District Judge Presiding


Paul A. Finley
State Bar No. 07023300
Reagan Burrus, PLLC
401 Main Plaza, Suite 200
New Braunfels, Texas 78130
Telephone:       (830) 625-8026
Facsimile:       (830) 625-4433
Email:           pfinley@reaganburrus.com




                    Oral Argument is Respectfully Requested
                IDENTITIES OF PARTIES AND COUNSEL

     Pursuant to the provisions of Rule 38.1 (a), Texas Rules of Appellate
Procedure, a complete list of the names of all parties to this action and
counsel are as follows:

Parties:                          Kayla Jean Lardieri, Appellant

                                  State of Texas, Appellee

Attorney for the Appellant:       Paul A. Finley
                                  State Bar No. 07023300
                                  Reagan Burrus PLLC
                                  401 Main Plaza, Suite 200
                                  New Braunfels, Texas 78130
                                  Telephone: (830) 625-8026
                                  Facsimile: (830) 625-4433
                                  Email: pfinley@reaganburrus.com

Attorney for the State:           Chari L. Kelly
                                  State Bar No. 24057939
                                  Assistant Criminal District Attorney
                                  150 N. Seguin Avenue, Suite 307
                                  New Braunfels, Texas 78130
                                  Telephone: (830) 221-1300
                                  Facsimile: (830) 608-2008
                                  Email: kellyc@co.comal.tx.us .
                                     TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ............................................ i

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

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

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

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

SUMMARY OF FACTS .......................................................................... 3

SUMMARY OF ARGUMENT ............................................................... 10

ISSUE ONE:               ................................................................................... 7

ISSUE TWO:               ................................................................................. 11

ISSUE THREE:             ................................................................................. 15

PRAYER .............................................................................................. 19

CERTIFICATE OF COMPLIANCE ....................................................... 20

CERTIFICATE OF SERVICE ............................................................... 20




                                                       ii
                              INDEX OF AUTHORITIES


Amaya v. State, 733 S.W.2d 168 (Tex. Crim. App. 1986) ................ 13
Barnes v. State, 56 S.W.3d 221 {Tex. App.- Fort Worth 1998) ....... 17
Beier v. State, 687 S.W.2d 2 (Tex. Crim. App. 1985) ................. 13, 17
Brooks v. State, 580 S.W. 2d 825 (Tex. Crim. App. 1979) ................. 9
Everett v. State, 216 S.W.2d 281 (1949) ............................................ 9
Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000) ........ 10, 12, 18
Lawton v. State, 913 S.W.2d 542 (Tex. Crim. App. 1995) .................. 9
Miranda v. State, 813 S.W.2d 724 (Tex. App.- San Antonio 1991) ... 9
Woods v. State, 749 S.W.2d 246 (Tex. App.- Fort Worth 1988) ..... 13




STATUTES AND RULES

Texas Penal Code§ 7.02(a)(2) ........................................................ 10
Texas Penal Code§ 7.02(b) ........................................................... 10

Texas   Penal   Code Ann. §      29.02(a)(2)(Vernon 1994) ....................... 12
Texas   Penal   Code Ann.§       7.01(a) .............................................. 13, 17
Texas   Penal   Code Ann.§       7.02(a)(2) .................................... 12, 13, 17
Texas   Penal   Code Ann.§       7.02(b) .............................................. 10, 17




                                                iii
TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

        COMES NOW KAYLA JEAN LARDIERI, Appellant in this case, by and

through her attorney of record, PAUL A. FINLEY, and, pursuant to the

provisions of Tex. R. App. Pro. 38, et. seq., files this brief on appeal.

                         STATEMENT OF THE CASE

        Appellant was indicted in Cause No. CR2014-090 for the offenses of

Attempted Capital Murder, Aggravated Kidnapping, Aggravated Sexual

Assault, Aggravated Robbery, and Tampering with Evidence. (CR Vol. 1, p.

6-1 0). The Appellant entered pleas of Not Guilty to each charge. A jury

found    Appellant   guilty   of Aggravated     Capital   Murder,   Aggravated

Kidnapping, Aggravated Robbery, and Tampering with Evidence on

February 9, 2015. (CR Vol. 1, pp. 12-30). Appellant was acquitted of the

offense of the Aggravated Sexual Assault. (CR, Vol. 1, p. 17). The Court

assessed punishment at 30 years confinement on the Attempted Capital

Murder, Aggravated Kidnapping, and Aggravated Robbery charges and 10

years confinement on the Tampering with Evidence charge. (CR, Vol. 1, pp.

35-47). The convictions and sentences were assessed to run concurrently.

(CR Vol. 1, pp. 35-47). Appellant gave notice of appeal on April28, 2015.




                                        1
              STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument in this case. Oral argument will aid

the Court's decisional process in this case.

                           ISSUES PRESENTED

ISSUE ONE:        THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO
                  SUPPORT THE CONVICTION OF ATTEMPTED
                  CAPITAL MURDER AGAINST THE APPELLANT.

ISSUE TWO:        THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO
                  SUPPORT THE CONVICTION OF AGGRAVATED
                  ROBBERY AGAINST THE APPELLANT.

ISSUE THREE: THE EVIDENCE WAS FACTUALLY INSUFFICIENT TO
             SUPPORT THE CONVICTION OF TAMPERING WITH
             EVIDENCE AGAINST THE APPELLANT.




                                      2
                           SUMMARY OF FACTS

     On December 8, 2013, the Comal County Sherri's office was

dispatched to a residence at Canyon Lake, Texas, for a woman who had

been found naked in a vehicle outside the residence.         Sheriff's deputies

found the woman manacled by the feet with multiple cuts and lacerations.

Upon further investigation, it was learned that the woman had been tasered

and cut with knives at a residence across the street from where she was

found. She had been wrapped in a sheet naked, handcuffed, hogtied, with

a tennis ball gag placed in her mouth, and carried to a locked shed outside

the residence where she was left. The woman was able to climb out of a

window in the building after removing the handcuffs and crawled across the

street where she was found.

      It was determined that the Appellant along with four other individuals

had some role in the events for which Appellant was indicted. Testimony

from multiple witnesses at trial indicated that Appellant was involved in

tasering the woman, had brandished a knife at some point in the

confrontation with the woman and had participated in the woman being

wrapped in the sheet, handcuffed, manacled, and placed in the shed.

      Appellant herself testified that she held a knife, that the woman got cut

as a result of that, and that Appellant did participate in restraining the victim


                                       3
and assisting in her being placed in the shed. Appellant testified that she

never intended to kill the victim and three of the other Co-Defendants each

testified that there was no discussion between the Co-Defendants of an

intent to kill the victim. The victim herself testified she never heard any

discussion between any of the Co-Defendants of an intent to kill her.

     After the victim was placed in the shed, the Co-Defendants left the

scene. Some of the victim's belongings were taken from the scene by one

of the Co-Defendants, Trace Smith. However, there was no testimony that

the Defendant participated in the removing of any of the victim's property.

Both the Appellant and Co-Defendant, Trace Smith, testified that the

Appellant did not remove the victim's property from the premises nor assisted

with such removal.    Later, Co-Defendant, Trace Smith, took the victim's

property to a burn pile and attempted to burn it. Although the Appellant was

with Co-Defendant, Trace Smith, at a house at the location of the burn pile,

both Appellant and Co-Defendant, Trace Smith, denied that the Appellant

participated in or knew that Trace Smith was going to burn the property.

      At the conclusion of the presentation of the evidence, the jury convicted

Appellant of the charges of Attempted Capital Murder, Aggravated

Kidnapping, Aggravated Robbery, and Tampering with Evidence. The jury

acquitted Appellant of the charge of Aggravated Sexual Assault. The Court


                                       4
sentenced the Appellant to 30 years confinement on the Attempted Capital

Murder, Aggravated Kidnapping, and Aggravated Robbery charges and 10

years confinement on the Tampering with Evidence conviction with the

sentences to run concurrently.




                                   5
                       SUMMARY OF ARGUMENT

     Appellant was convicted of four offenses, Attempted Capital Murder,

Aggravated   Kidnapping,   Aggravated    Robbery,    and   Tampering   with

Evidence. Appellant was sentenced to thirty years confinement in the Texas

Department of Criminal Justice- Institutional Division with the sentences to

run concurrently.    Appellant contends that the evidence is factually

insufficient to support the convictions on the counts of Attempted Capital

Murder, Aggravated Robbery, and Tampering with Evidence.




                                     6
ISSUE ONE (RESTATED): THE   EVIDENCE  WAS  FACTUALLY
INSUFFICIENT TO SUPPORT THE CONVICTION OF ATTEMPTED
CAPITAL MURDER AGAINST THE APPELLANT.


       At the trial, the jury was charged with Count I (Attempted Capital

Murder). The charge instructed the jury that they could find Appellant guilty

of Attempted Capital Murder if they found she attempted to intentionally

cause the death of DANA HUTH by stabbing her, striking her with Appellant's

hand    or   by   Appellant   hitting   her   with   her   foot   and   that   the

Appellant was in the course of committing or attempting to commit

kidnapping. Alternatively, the jury was charged that they could convict the

Appellant of Attempted Capital Murder if they found that Appellant entered

into a conspiracy with one or more of four individuals to commit Aggravated

Kidnapping and in the attempt to carry out said conspiracy one of the

conspirators attempted to cause the death of DANA HUTH by the means

identified above, that the offense of Attempted Capital Murder was

committed in furtherance of the conspiracy to commit Aggravated

Kidnapping and that the Appellant should have anticipated that one of

conspirators would attempt to intentionally cause the death of DANA HUTH.

       There was no testimony during trial that any one of the Co-Defendants

ever intended to kill the complainant. One of the Co-Defendants called by

the State, SHEENA HOPKINS, testified there was never any discussion

                                        7
between the Co-Defendants about killing the complainant. (R. R. Vol. 4, p.

183). Another Co-Defendant, TRACE SMITH, said the same. (R.R. Vol. 5,

p. 39). Another Co-Defendant, HEATHER RICHARDS, echoed that. (R.R.

Vol. 5, p. 108). RICHARDS said they just wanted to scare her (R.R. Vol. 5,

p. 108) didn't want her to stay around, but to go back home (R.R. Vol. 5, p.

109).

        The   Appellant   testified   that       she   understood   that   HEATHER

RICHARDS just wanted to talk to the complainant and to scare her off. (R.R.

Vol. 6, p. 29). The Appellant testified she had no idea what MS. RICHARDS

was talking about, like her method to scare her off. (R.R. Vol. 6, p. 30). The

Appellant said there was never any discussion between the Co-Defendants

about killing the complainant. (R.R. Vol. 6, p. 71 ). Appellant testified she

didn't intend to kill the complainant (R.R. Vol. 6, p. 59). The Appellant said

she didn't want the complainant to die. (R.R. Vol. 6, p. 94) .. The Appellant

said she never knew that HEATHER RICHARDS was going to touch the

complainant (Vol. 6, p. 102). The investigating detective confirmed that as

part of his investigation that from the statements that were taken of the Co-

Defendants and the complainant that it was not the intent of the Co-

Defendants to kill the complainant. (R.R. Vol. 4, p. 123). The complainant




                                             8
herself never indicated she heard any discussion about the Co-Defendants

intending to kill her.

      In order to establish liability as a party for the conduct of another for

the conduct of another in addition to the illegal conduct by the primary actor,

it must be shown that the accused harbored the specific intent to promote or

assist the commission of the offense, i.e., murder.      Lawton v. State, 913

S.W.2d 542 (Tex. Crim. App. 1995).         The accused must know he was

assisting in the commission of the offense. Amaya v. State, 733 S.W.2d 168

(Tex. Crim. App. 1986). The Court has required a higher level of complicity

for those denoted as parties as opposed to primary actors.          Amaya, ld.

Further,   there must be an agreement between              parties before or

contemporaneous with the criminal event to make one liable as a party.

Miranda v. State, 813 S.W.2d 724 (Tex. App. -San Antonio 1991 ). There

must be a common design to do a criminal act to make one culpable as a

party. Everett v. State, 216 S.W.2d 281 (1949); Brooks v. State, 580 S.W.

2d 825 (Tex. Crim. App. 1979).

      In a review of factual sufficiency of the evidence, the evidence        IS


viewed in a neutral light and set aside if "proof of guilt" is so obviously weak

as to undermine confidence in the jury's determination, or the proof of guilt,




                                       9
although adequate if taken alone, is greatly outweighed by contrary proof.

Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000).

     There was insufficient evidence from the record to support a conviction

against the Appellant for Attempted Capital Murder either by her own conduct

or by the conduct of another for which she would be criminally responsible

under§ 7.02(a)(2) of the Texas Penal Code. Further, there was insufficient

evidence to support a conviction on the theory that Appellant should have

anticipated that one of the conspirators would attempt to kill the complainant

as an alternative charge under§ 7.02(b) of the Texas Penal Code.




                                      10
ISSUE TWO (RESTATED): THE  EVIDENCE   WAS   FACTUALLY
INSUFFICIENT TO SUPPORT THE CONVICTION OF AGGRAVATED
ROBBERY AGAINST THE APPELLANT.

      At trial, the jury was charged with Count IV (Aggravated Robbery). The

charge instructed the jury that they could convict the Appellant if they found

that while in the course of committing theft and with intent to obtain or

maintain control of property, the Appellant either intentionally or knowingly

did threaten or place DANA HUTH in fear of death or imminent bodily injury

and that the Appellant used a deadly weapon, to-wit, a knife, or did

intentionally or knowingly or recklessly caused serious bodily injury to DANA

HUTH by stabbing her with a knife, striking her with the hand of Appellant,

or by hitting her with the foot of Appellant. Alternatively, the jury was charged

that they could convict Appellant with Aggravated Robbery if they found that

Appellant entered into a conspiracy with at least one of four people named

in the charge to commit Aggravated Kidnapping and in the attempt to commit

this conspiracy one or more of the conspirators committed Aggravated

Robbery as defined previously in furtherance of the conspiracy and the

Appellant should have anticipated that Aggravated Robbery would be

committed by the co-conspirators.

      Appellant testified that she didn't intend to rob the complainant and

didn't intend to put any of complainant's items in a bed sheet that was carried·


                                       11
from the trailer (R.R. Vol. 6, p. 59). The Appellant said she never had the

phone, clothes, or backpack of the complainant (R.R. Vol. 6, p. 105). TRACE

SMITH said he was the only one who hauled away anything of the

complainant's from the crime scene and that there was never any discussion

with the Appellant about removing the complainant's backpack from the

trailer. (R.R. Vol. 5, p. 42). SMITH said the Appellant took nothing of the

complainant's from the trailer. (R. R. Vol. 5, p. 44 ).

      In a review of factual sufficiency of the evidence, the evidence is

viewed in a neutral light and set aside if "proof of guilt" is so obviously weak

as to undermine confidence in the jury's determination, or the proof of guilt,

although adequate if taken alone, is greatly outweighed by contrary proof.

Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000).

      The Texas Penal Code defines Robbery as: "A person commits an

offense if, in the course of committing theft and with intent to obtain or

maintain control of the property, he intentionally or knowingly threatens or

places another in fear of imminent bodily injury or death." Texas Penal Code

Ann. § 29.02(a)(2)(Vernon 1994). The offense becomes aggravated if the

person "uses or exhibits a deadly weapon." ld. § 29.03(a)(2).

      A person is criminally responsible as a party to an offense if the offense

is committed by his own conduct, by the conduct of another for which he is


                                        12
criminally responsible, or by both. Texas Penal Code Ann. § 7.01 (a). A

person is criminally responsible for another person's conduct if acting with

intent to promote or assist the commission of the offense, he solicits,

encourages, directs, aids, or attempts to aid the other person to commit the

offense. Texas Penal Code Ann. § 7.02(a)(2).

     To convict, a defendant must not only be physically present at the

commission of offense but must encourage its commission by acts, words,

or other agreement. Barnes v. State, 56 S.W.3d 221 (Tex. App.- Fort Worth

1998). To be convicted as a party, an accused's actions must show an

understanding and common design to commit the offense. Beier v. State,

687 S.W.2d 2 (Tex. Crim. App. 1985). To convict for aggravated robbery

against one by the conduct of another for which he is criminally responsible,

the State must prove that the defendant intended to promote or assist in its

commission and solicited, encouraged, directed, aided, or attempted to aid

in its commission. Woods v. State, 749 S.W.2d 246 (Tex. App.- Fort Worth

1988).

     There was insufficient evidence that the Appellant did anything either

directly or as a party to commit theft or otherwise obtain and maintain control

of property belonging to the victim to complete a robbery of the victim. Nor

is there sufficient evidence that the Appellant should have anticipated that


                                      13
theft would be committed against the complainant. All that the evidence

sufficiently supports for culpability against Appellant for this charge is that a

deadly weapon, a knife, was used against the victim.




                                       14
ISSUE THREE (RESTATED):   THE EVIDENCE WAS FACTUALLY
INSUFFICIENT TO SUPPORT THE CONVICTION OF TAMPERING WITH
EVIDENCE AGAINST THE APPELLANT.

      At the trial, the jury was charged with Count V (Tampering with

Evidence). The charge instructed the jury that they could convict Appellant

if they found that the Appellant, (1) knowing that an investigation was

pending or in progress, alter, destroy, or conceal a thing to-wit: an iPhone,

the clothing of DANA HUTH, the clothing of said Defendant, or dog chain,

with intent to impair its verity or availability as evidence in the investigation

or (2) did and there, knowing that an offense had been committed, alter,

destroy, or conceal a thing, to-wit: an iPhone, the clothing of DANA HUTH,

the clothing of the said Defendant, or dog chain, with intent to impair its verity

or availability as evidence in the investigation of or official proceeding related

to said offense. Alternatively, the jury was charged that they could convict

the Appellant if they believed that the Appellant entered into a conspiracy

with one of four other individuals to commit the offense of Aggravated

Kidnapping and in the attempt to carry out the conspiracy one or more of the

conspirators knowing that an investigation was pending or in progress or

knowing that an offense had been committed, alter, destroy or conceal one

of the items listed in the alternative paragraph with intent to impair its verity


                                        15
or availability as evidence in the investigation of or official proceeding related

to the offense and the Appellant should have anticipated that one of the co-

conspirators would commit such acts.

      There was no evidence at trial that the Appellant directly altered,

destroyed or concealed evidence. Co-Defendant TRACE SMITH testified

that he took the complainant's backpack and the Appellant's clothes and

shoes and burned them. (R.R. Vol. 5, p. 36). SMITH testified that he and

the Appellant did not talk about burning the clothes and other items. (R.R.

Vol. 5, pp. 36-37). SMITH said he hauled things out of the trailer that night

and that the Appellant did not haul anything out of the trailer (R.R. Vol. 5, p.

42 and p. 44). SMITH said there was never any discussion by him with the

Appellant to remove the complainant's backpack from the trailer. SMITH

said he took the stuff out of the complainant's backpack that was disposed

of and placed those items in the burn pile himself. (R.R. Vol. 5, p. 44).

SMITH went on to say that the Appellant was not assisting him in any way in

burning items (R.R. Vol. 5, p. 52) and was in fact in the house at the time.

(R.R. Vol. 5, p. 44). SMITH said it was his decision that the items should go

in the burn pile. (R. R. Vol. 5, p. 44 ).

      The Appellant testified she never saw SMITH take the clothing out of

the house, found out afterwards that SMITH had burned the clothes (R.R.


                                            16
Vol. 6, p. 69), and had stayed in the house the whole time. Co-Defendant

HEATHER RICHARDS testified that the Appellant never spoke to her about

burning evidence. (R.R. Vol. 5, p. 101 ).

      A person is criminally responsible as a party to an offense if the offense

is committed by his own conduct, by the conduct of another for which he is

criminally responsible, or by both. Texas Penal Code Ann. § 7.01 (a).

      One alternative to be responsible as a party for the conduct of another

one must "acting with intent to promote or assist the commission of the

offense, solicits, encourages, and/or attempts to aid the other person to

commit the offense. Texas Penal Code Ann. § 7.02(a)(2). One may also be

responsible for the conduct of another when in the course of a conspiracy to

commit one felony another felony is committed and was one that should have

been anticipated in carrying out the conspiracy. Texas Penal Code Ann.

§7.02(b).

      Mere presence alone without evidence of intentional participation is

insufficient to convict a defendant as a party. Beier v. State, 687 S.W.2d 2

(Tex. Crim. App. 1985).     The State must prove conduct constituting the

offense plus an action by a defendant done with intent to promote or assist

such conduct or encouragement by words or agreement. Beier, ld.




                                       17
      In a review of factual sufficiency of the evidence, the evidence is

viewed in a neutral light and set aside if "proof of guilt" is so obviously weak

as to undermine confidence in the jury's determination, or the proof of guilt,

although adequate if taken alone, is greatly outweighed by contrary proof.

Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000).

      The evidence was factually insufficient to support the conviction of the

Appellant for Tampering with Evidence by her own conduct.           It was also

factually insufficient to support her being convicted of the offense because

of the conduct of another because of the lack of any evidence to show that

Appellant either solicited, encouraged, directed, aided or attempted to aid

another person to commit the offense. Finally, the evidence was factually

insufficient to support a conviction due to the lack of evidence to support that

Appellant should have anticipated evidence would be tampered with to carry

out the conspiracy.




                                       18
                                PRAYER



     WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that her conviction in the above-entitled and numbered judgments on

the counts addressed be reversed and rendered as a judgment of acquittal

on each of said counts.

                                 Respectfully submitted,

                                 REAGAN BURRUS PLLC
                                 401 Main Plaza, Suite 200
                                 New Braunfels, Texas 78130
                                 Telephone: (830) 625-8026
                                 Direct Line: (830) 358-7473
                                 Facsimile: (830) 625-4433
                                 Email: pfinley@reaganburrus.com



                                 By:                        fe·sf


                                        PAUL A. FINLEY
                                        State Bar No. 07023300

                                 ATTORNEY FOR APPELLANT,
                                 KAYLA JEAN LARDIERI




                                   19
                    CERTIFICATE OF COMPLIANCE

     By affixing my signature below, I PAUL A. FINLEY, hereby certify that
Appellant's Brief contains 3757 words.


on the 2nd day of July, 2015.

                                                              fe-sf

                                          PAUL A. FINLEY




                       CERTIFICATE OF SERVICE

      By affixing my signature below, I, PAUL A. FINLEY, hereby certify that
a true copy of "Appellant's Brief' has been mailed to:

Chari Kelly
Comal County District Attorney's Office
150 North Seguin, Suite 307
New Braunfels, Texas 78130



on the 2nd day July, 2015.



                                                              fe-sf

                                          PAUL A. FINLEY




                                     20
