                                                                           ACCEPTED
                                                                      04-14-00644-CR
                                                           FOURTH COURT OF APPEALS
                                                                SAN ANTONIO, TEXAS
                                                                  4/7/2015 3:11:57 PM
                                                                        KEITH HOTTLE
                                                                               CLERK

                 No. 01-14-00644-CR

              IN THE FIRST COURT OF               FILED IN
                                           4th COURT OF APPEALS
                APPEALS OF TEXAS            SAN ANTONIO, TEXAS
                 HOUSTON, TEXAS            4/7/2015 3:11:57 PM
   ____________________________________________
                                             KEITH E. HOTTLE
                                                   Clerk
        ELTON ANTHONY BRANCH, Appellant
                         V.
           THE STATE OF TEXAS, Appellee
____________________________________________________

ON APPEAL FROM THE 399th JUDICIAL DISTRICT COURT
           OF BEXAR COUNTY, TEXAS
          CAUSE NUMBERS 2013-CR-7555
        ________________________________

              BRIEF FOR THE STATE

            NICHOLAS “NICO” LAHOOD
               Criminal District Attorney
                 Bexar County, Texas

         STEVEN SPEIR, DANIEL WALKER
           Assistant Criminal District Attorney
                  Bexar County, Texas
                MARY BETH WELSH
           Assistant Criminal District Attorney
                  Bexar County, Texas
                  Paul Elizondo Tower
                101 W. Nueva, 7TH Floor
               San Antonio, Texas 78205
                   mwelsh@bexar.org
                     (210) 335-2782
                  (210) 335-2436 (fax)
                 State Bar No. 00785215
                       (On Appeal)

            ORAL ARGUMENT WAIVED
                                             TABLE OF CONTENTS


                                                                                                         PAGE(S)


Table of Contents

TABLE OF AUTHORITIES .............................................................................................. iii

BRIEF FOR THE STATE ................................................................................................... 1

RULE 38.2(a)(1)(B) STATEMENT ................................................................................... 2

STATE’S RESPONSE TO APPELLANT’S
  FIRST POINT OF ERRROR ................................................................................. 2
    Examining the evidence in the light most favorable to the verdict, a
    rational trier of fact could have found beyond a reasonable doubt that
    appellant committed aggravated assault of Clifton Wallace while
    using or exhibiting a deadly weapon; namely: a knife.

STANDARD OF REVIEW ......................................................................................... 2

SUMMARY OF THE EVIDENCE ............................................................................. 4

ARGUMENT AND AUTHORITIES .......................................................................... 13

APPLICATION ........................................................................................................... 15

STATE’S RESPONSE TOAPPELLANT’S
  SECOND POINT OF ERROR .............................................................................. 17
    The probative value outweighed any prejudice that might have
    possibly arisen from these photographs. Therefore, the trial court did
    not abuse its discretion in admitting the photographs.

STANDARD OF REVIEW ......................................................................................... 17

ARGUMENT AND AUTHORITIES .......................................................................... 17



                                                            i
APPLICATION ........................................................................................................... 19

STATE’S RESPONSE TO APPELLANT’S
  THIRD POINT OF ERROR ................................................................................... 21
    The testimony was not hearsay because it not offered for the truth of
    the matter asserted. Furthermore, the statement, if hearsay, qualified
    as a present sense impression exception to the hearsay rule as well as
    an excited utterance. Finally, in light of the entire record, the
    admission of Warren’s testimony regarding what he yelled out to
    Steve, if error, was harmless.

STANDARD OF REVIEW ......................................................................................... 22

ARGUMENT AND AUTHORITIES .......................................................................... 22

APPLICATION ........................................................................................................... 23

CONCLUSION ............................................................................................................ 27

CERTIFICATE OF SERVICE .................................................................................... 28

CERTIFICATE OF COMPLIANCE ........................................................................... 28




                                                          ii
                                                 Table of Authorities

Federal Cases                                                                                                          Page(s)

Jackson v. Virginia, 443 U.S. 307 (1979) ....................................................... 2, 3, 16
Tibbs v. Florida, 457 U.S. 31 (1982) .........................................................................3

Texas Cases
Alexander v. State, 740 S.W.2d 749 (Tex. Crim. App. 1987) .................................15
Alexander v. State, 820 S.W.2d 821 (Tex. App. — Waco 1991, pet. ref’d) .... 23, 24
Bell v. State, 877 S.W.2d 21 (Tex. App. — Dallas 1994, pet ref’d) ................ 23, 24
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................2
Brooks v. State, 990 S.W.2d 278 (Tex. Crim. App. 1999) ......................................25
Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) ................................. 17, 21
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .................................3, 16
Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) .....................................22
Drake v. State, 860 S.W.2d 182 (Tex. App. — Houston [14 Dist.] 1993, pet. ref’d)
..................................................................................................................................24
Earls v. State, 707 S.W.2d 82 (Tex. Crim. App. 1986) ...........................................15
Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004) ................................. 18, 19
Esparza v. State, 31 S.W.3d 338 (Tex. App. — San Antonio 2000, no pet.) .........25
Fletcher v. State, 960 S.W.2d 694 (Tex. App. Tyler 1997).....................................24
Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) ............................18
Guidry v. State, 9 S.W.3d 133 (Tex. Crim. App. 1999) ..........................................22
Harris v. State, 736 S.W.2d 166 (Tex. App. — Houston [14th Dist.] 1987, no pet.)
..................................................................................................................................25
Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) ...........................................3
Johnson v. State, 673 S.W.2d 190 (Tex. Crim. App. 1984) ....................................14
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) ....................................26
King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) ..............................................2
Livingston v. State, 739 S.W.2d 311 (Tex. Crim. App 1987)..................................24
Lockwood v. State, 237 S.W.3d 428 (Tex. App. — Waco 2007, no pet.) ...............15
McDonald v. State, 179 S.W.3d 571 (Tex. Crim. App. 2005) ................................22
McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996) .................................3
McGee v. State, 774 S.W.2d 229 (Tex. Crim. App. 1989) ......................................15
Moreno v. State, 755 S.W.2d 866 (Tex. Crim. App. 1988) .......................................3
Prible v. State, 175 S.W.3d 724 (Tex. Crim. App. 2005)................................. 17, 21
Rabbani v. State, 847 S.W.2d 555 (Tex. Crim. App. 1992) ....................................25
Reese v. State, 33 S.W.3d 238 (Tex. Crim. App. 2000) ............................. 17, 18, 19


                                                                iii
Rice v. State, 801 S.W.2d 16 (Tex. App. — Fort Worth 1990, pet. ref’d) ..............14
Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App. 2006) ...................... 17, 19, 21
Sonnier v. State, 913 S.W.2d 511 (Tex. Crim. App. 1995) .......................................3
Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004).................................18
Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) .....................................3
Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996) .....................................3
Willover v. State, 70 S.W.3d 841 (Tex. Crim. App. 2002) ......................................22
Statutes
Tex. Pen. Code §22.01(a)(1)(West 2013) ................................................................14
Tex. Pen. Code §22.02(a)(2)(West 2013) ................................................................14
Other Authorities
2A STEVE GOODE et al., Texas Practice Series: Courtroom Handbook on Texas
Evidence §801(a)-(d) (3) ( 2013 ed.) .......................................................................23
Rules
Fowler v. State, 958 S.W.2d 853 (Tex. App. — Waco 1997), aff’d, 991 S.W.2d
258 (Tex. Crim. App. 1999).....................................................................................26
TEX. R. APP. P. 38.2(a)(1)(B) .....................................................................................2
Tex. R. App. P. 44.2(b).............................................................................................26
Tex. R. Evid. 401 ......................................................................................................17
Tex. R. Evid. 403 ......................................................................................................18
Tex. R. Evid. 801(d) .................................................................................................22
Tex. R. Evid. 803(1) .................................................................................................25
Tex.R.Evid. 803(2)...................................................................................................26




                                                           iv
                                    No. 04-14-00644-CR

Elton Anthony Branch,                      §                   In the Fourth Court

              Appellant                    §

  v.                                       §                   Of Appeals

The State of Texas                         §

              Appellee                     §                   San Antonio, Texas


                               BRIEF FOR THE STATE

   TO THE HONORABLE COURT OF APPEALS:

         Now comes, Nicholas “Nico” LaHood, Criminal District Attorney of Bexar

   County, Texas, and files this brief for the State. Appellant, Anthony Branch, was

   charged by indictment as a repeater for the offense of aggravated assault with a

   deadly weapon, cause number 2013-CR-7555 (C.R. at 4). Trial was before a jury in

   the 399th Judicial District Court of Bexar County, Texas, the Honorable, Ray J.

   Olivarri, Jr., judge presiding. Appellant was found guilty of aggravated assault as

   charged in the indictment (C.R. at 38). Appellant pled true to the enhancement and

   the jury assessed punishment at 25 years confinement (C.R. at 50, 55). The Trial

   Court’s Certification of Defendant’s Right of Appeal was filed indicating this was

   not a plea bargain and appellant has the right to appeal (C.R. at 54). Notice of

   appeal was filed (C.R. at 62).




                                               1
                       RULE 38.2(a)(1)(B) STATEMENT

      The State challenges the factual assertions contained in appellant’s brief

pursuant to Rule 38.2(a)(1)(B) of the Texas Rules of Appellate Procedure. The

State will provide its quotations of evidence and/or summary of evidence adduced

from the record in its response contained herein.

                  STATE’S RESPONSE TO APPELLANT’S
                       FIRST POINT OF ERROR

      In in his first point of error, appellant contends that the evidence is not

legally sufficient to support his conviction for aggravated assault with a deadly

weapon (Appellant’s brief at 3).

                           STANDARD OF REVIEW

      On a challenge of the legal sufficiency of the evidence, the reviewing court

must review all the evidence, whether direct or circumstantial, in the light most

favorable to the verdict and determine whether any rational trier of fact could have

found all the essential elements of the offense, and/or the challenged finding,

beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);

Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); King v. State, 29

S.W.3d 556, 565 (Tex. Crim. App. 2000).

      Under the legal sufficiency standard, the jury is the exclusive judge of the

credibility of the witnesses, the weight to be given their testimony and may choose

to believe all, some, or none of their testimony or other evidence presented. See

                                         2
McFarland v. State, 928 S.W.2d 482, 496 (Tex. Crim. App. 1996); Sonnier v.

State, 913 S.W.2d 511, 514 (Tex. Crim. App. 1995). An appellate court presumes

that the factfinder resolved any conflicting inferences in favor of the verdict and

defers to that resolution. See Jackson, 443 U.S. at 326; Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). The reviewing court’s duty is not to

reweigh the evidence from reading a cold record but to “position itself as a final,

due process safeguard ensuring only the rationality of the factfinder.” Williams v.

State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996); Matamoros v. State, 901

S.W.2d 470, 474 (Tex. Crim. App. 1995); Moreno v. State, 755 S.W.2d 866, 867

(Tex. Crim. App. 1988).

      An appellate court 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. See Clayton, 235 S.W.3d at

778 (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). An

appellate court also defers to the factfinder’s evaluation of the credibility of the

evidence and weight to give the evidence. See Williams v. State, 235 S.W.3d 742,

750 (Tex. Crim. App. 2007).

      If an appellate court finds the evidence insufficient under this standard, it

must reverse the judgment and enter an order of acquittal. See Tibbs v. Florida,

457 U.S. 31, 41 (1982).



                                         3
       Because appellant has raised a sufficiency issue, a brief summary of the

evidence will be helpful and is provided below.

                        SUMMARY OF THE EVIDENCE

       Clifton Wallace works part time doing home health and he works as a

security guard at the Kiolbasa plant (3R.R. at 48, 49). As a security guard, Mr.

Wallace wears a uniform but does not carry a weapon (3R.R. at 51). Part of Mr.

Wallace’s job is to patrol the exterior of the plant within the fence on foot (3R.R. at

52).

       There are roughly 50 people that work at the plant and Mr. Wallace is at

least familiar with them by face and typically they wear regular clothes but with a

smock and safety boots (3R.R. at 53, 54). On June 6th, 2013, Mr. Wallace was on

patrol at about 11:00 pm when he observed a man come in who was not wearing

the usual work attire and Mr. Wallace had never seen him before (3R.R. at 55).

Because there is limited parking, Mr. Wallace had parked his vehicle right outside

the gate and after completing one of his rounds he went out to the car to mark his

log book when he saw the man right outside the gate (3R.R. at 56). Mr. Wallace

lost sight of him when the man walked through the gate but once he walked back

in the gate Mr. Wallace saw him again walking away from the building towards the

parking lot (3R.R. at 57, 58, 59).




                                          4
       The man was carrying what Mr. Wallace thought was a device for a car

alarm because he could hear a car alarm going off and the man was holding out the

device and pressing it, at least that was it appeared he was doing (3R.R. at 59, 60).

The man went to a vehicle and when Wallace approached the vehicle the man was

in the driver’s seat, lying down across to the passenger seat, looking very

suspicious (3R.R. at 60, 61).

       Mr. Wallace was at the car door when he asked the man what he was doing

(3R.R. at 61). The man said he was just in the car and that it was his vehicle (3R.R.

at 62). Mr. Wallace asked him to step out of the vehicle and show some

identification (3R.R. at 62). When the man stepped out of the vehicle he had some

kind of tool in his hand but Mr. Wallace could not tell exactly what it was, he just

assumed it was a screwdriver or something (3R.R. at 62, 63). The man did not

provide any identification and became confrontational, yelling in a raised voice

something like get off me man or get away from me, man (3R.R. at 64). He

appeared to be agitated and at this point they were about three feet from each other

(3R.R. at 64). Mr. Wallace asked the man about the backpack he was carrying

because Mr. Wallace recognized the backpack as one that belonged to the actual

owner of the vehicle, one of the plant maintenance employees (3R.R. at 65, 66,

67).




                                         5
      Mr. Wallace tried to get the backpack away from the man as he tried to walk

away and that was when Mr. Wallace noticed what he had in his hand was a knife

(3R.R. at 67). Mr. Wallace asked the man what he was going to do with the knife

and the man started swinging the knife towards Mr. Wallace (3R.R. at 68). Mr.

Wallace did not have anything to protect himself so he just charged at him as hard

as he could and everything went flying (3R.R. at 68).

      Mr. Wallace saw an individual he knew only as Steve and he told him that

there was someone trying to break into a vehicle and he could use his help (3R.R.

at 73). When Wallace hit the man full force they both fell to the ground and that

was when someone pointed out that he was bleeding (3R.R. at 76). The man got up

and staggered away (3R.R. at 77). Mr. Wallace didn’t really see anything else once

he realized he had been stabbed (3R.R. at 78). One of the co-workers helped

Wallace by applying pressure until EMS arrived (3R.R. at 83). Wallace was

transported to University Hospital where he was treated (3R.R. at 85).

      Mr. Wallace was shown several photos but was unable to pick out, with

certainty, the individual that stabbed him (3R.R. at 95). Wallace actually

recognized one person but there was another individual that looked a lot like him

so Wallace wasn’t comfortable picking either of the two (3R.R. at 96).

      Officer Connell responded to the call for a stabbing and when he arrived on

the scene the victim, Clifton Wallace, was being treated (3R.R. at 15, 17, 19). Two



                                         6
witnesses were located, Steven Moreno and Saul Monsivais (3R.R. at 19). Officer

Connell learned that a suspect had been apprehended so he drove Steven Moreno

to that location to do a field identification (3R.R. at 19). The witness was then

transported to the night detective’s office to give a statement and the suspect was

transported to the night magistrate’s office (3R.R. at 21). The suspect had a fresh

injury on his face and on his back (3R.R. at 25). Appellant was the suspect (3R.R.

at 26).

          Steve Moreno works at the Kiolbassa plant in the Maintenance department

(3R.R. at 142). Mr. Moreno was getting ready to clock out for the day when he

heard Cliff calling his name and when Moreno turned around he saw Cliff

struggling in the parking lot about 25-30 feet from the door (3R.R. at 143, 146).

Moreno called for another maintenance worker, Saul, to come help, and then he

ran to try and help Cliff (3R.R. at 147). When Cliff let go of appellant he ran so

Mr. Moreno chased him (3R.R. at 147, 156). Appellant was running full force and

did not see the cable at the transmission shop next door and ran right into it, flipped

over it and landed on his back but got up and kept running at which time Mr.

Moreno stopped giving chase and went back to check on Cliff (3R.R. at 148, 150,

151).

          Moreno saw blood on Cliff’s shirt so he got some towels and gloves so he

could apply pressure (3R.R. at 151). One of the officers relieved him and told him



                                          7
to go over to the transmission shop and wait with Chris Barnes and Saul (3R.R. at

151).

        After a while, Moreno and Saul were taken in separate cars to where they

had apprehended appellant (3R.R. at 152). From the front seat of the patrol car,

Moreno identified appellant as the same one he had seen struggling with Cliff

(3R.R. at 152). During the struggle appellant had on a white shirt, white shorts and

he was wearing tennis shoes (3R.R. at 157). The white shirt was torn during the

struggle and he lost one of the shoes when he fell over the cable (3R.R. at 157,

158).

        Saul Nareja Monsivais also works in maintenance at the Kiolbassa plant

(3R.R. at 173, 174). Saul was completing paperwork at the end of his shift when he

heard Moreno shout his name so he ran outside the building and he saw Cliff, the

security guard, and appellant fighting (3R.R. at 176, 177, 178, 179, 190). Appellant

was taller than Saul, who is 5’6” and he was wearing a white shirt, white shorts

and he had short hair and a lot of tattoos (3R.R. at 180, 181, 182).

        The struggle stopped when appellant ran away and Cliff was left lying on the

ground (3R.R. at 182). Moreno ran to get some rags from maintenance and Saul

ran to his truck so he could chase after the guy (3R.R. at 182). Saul found him a

few blocks away and tried to stop him with the truck (3R.R. at 183). Appellant ran

so Saul ran after him but couldn’t catch up to him (3R.R. at 184). When appellant



                                          8
tried to run away he and Saul actually ran into each other (3R.R. at 184). Saul tried

to grab appellant but couldn’t and when he tried to run away from Saul, Saul

punched him in the stomach once but that did not stop him (3R.R. at 185, 186).

Saul continued to chase appellant on foot until he saw two police officers who he

told what he had seen (3R.R. at 186, 187). The officers told him to stop chasing

appellant so Saul went back to his truck and returned to the plant (3R.R. at 187).

Eventually an officer drove Saul two or three streets away where he identified the

appellant (3R.R. at 189, 190).

      Christopher Barnes, who works at the Kiolbassa plant as a maintenance

technician drives a red four door Subaru and parks on the other side of the

transformer right outside the maintenance shop (3R.R. at 203, 204). Typically,

Christopher kept his personal things upstairs in the office but this particular night

he was in the process of leaving the plant so it was downstairs on a table (3R.R. at

205). Christopher had a black backpack which contained a knife, his watch, some

miscellaneous documents and pens (3R.R. at 205).

      In the vehicle, the face plate to the stereo had been removed, the dart case

was not in the side of the door where it is usually stored and the turning cable and

watch that are usually in the console had been taken out as well as the Tom Tom

navigation system (4R.R. at 19, 20).




                                         9
       At first Cliff appeared to be okay but then Christopher saw that he was

bleeding (4R.R. at 22). Steve went to get a chair for Cliff and Christopher called 9-

1-1(4R.R. at 22). After the ambulance arrived, Christopher went back inside and

that was when he noticed his backpack, with his keys, was gone (4R.R. at 22, 23).

At that point Christopher looked over and saw that his car door was open (4R.R. at

23).

       There were several items found on the ground, some that did not belong to

Christopher and others that were his and were returned to him (4R.R. at 30, 31,

32). A multi-tool knife was taken from the console of Christopher’s car but it was

not returned (4R.R. at 32, 34). The backpack itself was never returned nor was the

military paperwork that was inside (4R.R. at 36).

       Officer Christopher Hetrick received a call from dispatch for a cutting in

progress and he specifically responded to the information regarding the flight of

the possible suspect (4R.R. at 51, 53, 54). The description of the suspect was a

black male wearing white shorts (4R.R. at 56). Officer Hetrick spotted appellant,

who matched the description, running west (4R.R. at57, 58, 64). Hedrick

approached appellant with his gun drawn and told him to lay down on the ground

(4R.R. at 58). Instead of cooperating immediately, appellant crouched down in

order to conceal something (4R.R. at 59, 60). After appellant put down whatever

he had, he laid down on the street (4R.R. at 60). Appellant had blood and grass on



                                         10
him and he was scratched up like he had been in a fight, jumping over fences,

those types of things (4R.R. at 61). Officer Hedrick found a pair of sunglasses and

the remote to a car stereo in the area (4R.R. at 63).

      Officer Barton Borgens also drew his weapon and gave commands to

appellant and when he complied Officer Borgens holstered his weapon and

handcuffed him (4R.R. at 65, 69, 71). Appellant was placed in Officer Borgens’

patrol car and when the detectives indicated they were through, Borgens

transported appellant to headquarters (4R.R. at 69, 70). Borgens read appellant his

rights (4R.R. at 70).

      Detective Kerry Keene found a Leatherman tool and observed that the blade

appeared to be bent (4R.R. at 74, 80). The tool was marked and left for CSI to pick

it up (4R.R. at 80).

      Mike Rohmer marked and collect for evidence from the initial location

which included a black left shoe, a watch, and a Leatherman multi-tool (4R.R. at

83, 86, 89, 90). The blade in the multi-tool had obviously hit something hard

because it is bent (4R.R. at 93). The knife was open when Mr. Rohmer collected it

but he closed it to make it safe (4R.R. at 93).

      At the second location, where the stabbing occurred, Mr. Rohmer collected a

pair of boxer shorts, various items of clothing, a hat, another shoe and they took

some blood swabs (4R.R. at 96, 101, 109). The red cap had a lot of trace on it



                                          11
(4R.R. at 104, 105). From the night CID room, Mr. Rohmer collected a pair of

white shorts that appeared to have blood on them (4R.R. at 111).

      Detective Vasquez attempted to obtain latent prints from the vehicle’s

exterior driver side door, the door frame, door handles, windows but was only able

to lift what he believed to be good latent prints from the exterior driver side door,

interior driver side door, and a GPS laying on the floor (4R.R. at 134, 140).

Detective Vasquez also examined the victim who had a puncture would toward the

side/back of his thoracic cavity which he sealed with the HyFin chest seal (4R.R. at

144). EMS arrived and provided all further medical care (4R.R. at 145).

      Sandra Ruiz, compared legible prints from the outside of the driver’s side

window to those of appellant and they belonged to appellant (4R.R. at 148, 158).

      Detective Landrum spoke to Christopher Barnes the owner of the vehicle

that was broken into and during his investigation he was notified that officers had

a suspect in custody (5R.R. at 6, 12, 13). The witnesses, Saul Monsivais and Steve

Moreno, were transported to the location where the suspect was being held for a

field identification (5R.R. at 13, 14). Mr. Moreno and Mr. Monsivais identified the

suspect in custody as the one involved in the stabbing (5R.R. at 18, 19).

      Detective Landrum observed that appellant appeared to be under the

influence of some type of substance, intoxicant (5R.R. at 25, 30). His clothes were

dirty, he was shoeless and there appeared to be blood on his clothing which were



                                         12
collected as evidence (5R.R. at 25. 26). Appellant’s clothing included white shorts

and shoes, one of which was found where appellant tripped over the wire (5R.R. at

27). Appellant gave a statement denying any involvement (5R.R. at 27, 28).

Detective Landrum indicated that a knife can be a deadly weapon (5R.R. at 29,

30).

       Detective Roberts spoke with the Mr. Wallace on June 12th and took a

statement from him on July 11th (5R.R. at 44, 48, 49). Actually, Mr. Wallace

provided an incident report he had prepared for his company and it was done very

well so Detective Gutierrez used that report as his statement (5R.R. at 49). Wallace

was shown a photo line-up but he was unable to identify anyone (5R.R. at 52).

Finger prints from the vehicle that had been burglarized were submitted to

identification (5R.R. at 54). Four of appellant’s finger prints were a match (5R.R.

at 54). The knife was not submitted to test for blood because there were witnesses

to the assault (5R.R. at 56). Blood samples from the scene were not submitted

because based on the eyewitnesses they knew who the blood came from (5R.R. at

56).

                      ARGUMENT AND AUTHORITIES

       Appellant was charged by indictment with the offense of aggravated assault

with a deadly weapon pursuant to section 22.02(a)(2) of the Texas Penal Code.




                                        13
      A person commits aggravated assault if he commits assault as defined in

Section 22.01 of the Texas Penal Code and uses or exhibits a deadly weapon

during the commission of the assault. Tex. Pen. Code §22.02(a)(2)(West 2013). A

person commits assault if he intentionally, knowingly, or recklessly causes bodily

injury to another. Tex. Pen. Code §22.01(a)(1)(West 2013). Based on the

allegations in the indictment, the State was required to prove beyond a reasonable

doubt that: appellant intentionally, knowingly, or recklessly caused bodily injury to

Clifton Wallace by cutting and stabbing him with a knife, that in its manner of use

and intended use was capable of causing death and serious bodily injury. (C.R. at

4).

      Appellant contends the evidence was insufficient to prove he committed the

offense because there was no blood on him from the complainant when he was

arrested, and his finger prints on the car don’t prove he did the stabbing

(Appellant’s brief at 3, 4)

      In a criminal trial, the State must prove that the accused was the perpetrator,

and the accused stands innocent before the court until his identity is established

beyond a reasonable doubt. Rice v. State, 801 S.W.2d 16, 17 (Tex. App. — Fort

Worth 1990, pet. ref’d). Therefore, identification of the defendant as the person

who committed the offense charged is part of the State’s burden of proof beyond a

reasonable doubt. Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App. 1984).



                                         14
      Identity can be established by direct or circumstantial evidence. Earls v.

State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986) (noting that victim’s

misidentification of juror as perpetrator at trial was not fatal where circumstantial

evidence, including testimony of officer who arrested defendant at scene, pointed

to defendant as perpetrator). Identity may be proved by inferences and no

formalized procedure is required for the State to prove identity. See generally

Lockwood v. State, 237 S.W.3d 428, 432 (Tex. App. — Waco 2007, no pet.). Proof

of the accused’s identity through circumstantial evidence is not subject to a more

rigorous standard than is proof by direct evidence, as both are equally probative.

McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). The sufficiency of

the evidence is then determined from the cumulative effect of all the evidence. See

Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987).

                                 APPLICATION

      In the instant case, Clifton Wallace testified that he saw an individual who

did not appear to be employed at the Kiolbassa plant carrying and pressing what

appeared to be an alarm remote for a vehicle. When Wallace approached the

vehicle whose alarm he heard he saw the individual in the vehicle lying across the

seat. Wallace knew that the vehicle did not belong to the individual and Wallace

observed he had a backpack that did not belong to him either. Although Wallace

initially saw something in the individual’s hand, it wasn’t until he confronted him



                                         15
and tried to get the backpack that Wallace saw it was a knife. The individual

started swinging the knife and Wallace had nothing to protect himself with so he

charged the individual as hard as he could. Wallace received a stab wound to the

side. No one else was around at the time to inflict this wound except for the

individual.

      Although Wallace was unable to identify the individual the record shows

that appellant was the one at the car in question because his fingerprints were on it.

Appellant also had items that taken from the car and from the owner of the car as

well as other items. More importantly two eyewitnesses to the assault observed the

struggle and identified appellant as being the one involved in the struggle.

Appellant ran from the scene and was later apprehended. Steve Moreno and Saul

Monsivais, who ran to assist Wallace, made positive identifications of appellant

after he was apprehended and in open court.

      Examining the evidence in the light most favorable to the verdict, a rational

trier of fact could have found beyond a reasonable doubt that appellant committed

aggravated assault of Clifton Wallace while using or exhibiting a deadly weapon;

namely: a knife. See Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778.

      Accordingly, the evidence is legally sufficient to show that appellant

committed aggravated assault.

      Appellant’s first point of error lacks merit and should be overruled.



                                         16
                  STATE’S RESPONSE TO APPELLANT’S
                      SECOND POINT OF ERROR

      In point of error number two, appellant contends that gruesome photographs

were admitted improperly over his objection (Appellant’s brief at 5).

                           STANDARD OF REVIEW

      A trial court’s decision to admit or exclude evidence, including photographic

evidence is reviewed under an abuse of discretion standard. See Casey v. State, 215

S.W.3d 870, 879 (Tex. Crim. App. 2007); Shuffield v. State, 189 S.W.3d 782, 786

(Tex. Crim. App. 2006); Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App.

2005). Under an abuse of discretion standard, the appellate court must determine

whether the trial court’s ruling was so arbitrary that it is outside the zone of

reasonable disagreement. Casey, 215 S.W.3d at 878. An appellate court determines

not only whether the trial judge did in fact conduct the required balancing between

probative and prejudicial values but also whether the trial court’s determination

was reasonable in view of all relevant facts. Shuffield, 189 S.W.3d at 787; Reese v.

State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000).

                      ARUGMENT AND AUTHORITIES

      The Texas Rules of Evidence favor admission of all relevant evidence at

trial, though these evidentiary rules do provide exceptions that would exclude

otherwise relevant and admissible evidence. See Tex. R. Evid. 401. Relevant

evidence may be excluded if the probative value of the evidence is “substantially

                                        17
outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation

of cumulative evidence.” Tex. R. Evid. 403; Gigliobianco v. State, 210 S.W.3d

637, 641-42 (Tex. Crim. App. 2006). Unfair prejudice occurs when evidence

provides “an undue tendency to suggest that a decision be made on an improper

basis.” Reese, 33 S.W.3d at 240. Rule 403 favors admission of relevant evidence

and, consequently, it carries the presumption that “relevant evidence will be more

probative than prejudicial.” Montgomery v. State, 810 S.W.2d 372, 389 (Tex.

Crim. App. 1991) (en banc).

      Like other demonstrative evidence, photographs should assist the factfinder

with its guilt or punishment decision; a photograph should add something that is

“relevant, legitimate, and logical to the testimony that accompanies it” and that

assists the factfinder in its decision-making duties. Erazo v. State, 144 S.W.3d 487,

491 (Tex. Crim. App. 2004). If a photograph is genuinely helpful, the photograph

is inadmissible only if its emotional and prejudicial aspects substantially outweigh

the helpful aspects. Id. at 491-92. In general, photographs are admissible if verbal

testimony about the matter shown in the photographs would be admissible and the

probative value is not outweighed by Rule 403 counter-factors. Threadgill v. State,

146 S.W.3d 654, 670-71 (Tex. Crim. App. 2004); see TEX. R. EVID. 403.




                                         18
      The Court of Criminal Appeals has provided a nonexclusive list of four

factors to consider when analyzing a challenge to evidentiary rulings under Rule

403: (1) the probative value of the evidence; (2) the extent that the evidence may

“impress the jury in some irrational, but nevertheless indelible way”; (3) the time

needed to develop the evidence; and (4) the proponent’s need for the evidence.

Shuffield, 189 S.W.3d at 787; Montgomery, 810 S.W.2d at 389-90. Additionally,

when considering a trial court’s ruling on the admissibility of a photo, the

reviewing court should consider the number of photos, the size of the photo,

whether the photo is in color, the detail depicted in the photo, the gruesomeness of

the photo, whether the body is naked or clothed, and whether the body had been

altered in a way that would be detrimental to the appellant. Shuffield, 189 S.W.3d

at 787; Erazo, 144 S.W.3d at 489; Reese, 33 S.W.3d at 241.

                                 APPLICATION

      Appellant contends that photographs were admitted improperly over his

objection (Appellant’s brief at 5). Appellant does not state in his brief which

photographs in particular he is complaining about. However, appellant does cite to

one portion in the record where State’s exhibits 8 through 16 were offered (3R.R.

at 79). There was no objection to exhibits 11, 13, and 9 (3R.R.R. at 79). Appellant

objected to 8, 10, 12, 14, 15, and 16 based on them being cumulative in violation

of rules 401, 402 and 403 (3R.R. at 79, 80). The State argued that the photographs



                                        19
were being offered to depict different angles of the injury and the different stages

of treatment received (3R.R. at 80). Appellant argues on appeal that the

photographs were cumulative and seems to suggest that they were gruesome

(Appellant’s brief at 5).

      Mr. Warren testified that State’s exhibit no. 8 was photograph of himself

and it shows where on his body the stab wound was located (3R.R. at 83). State’s

exhibit 9, depicts the item placed on Mr. Warren’s side to hold pressure until the

EMT’s arrived (3R.R. at 84). State’s Exhibit number 10 shows the same protective

covering over the stab wound and the EMT’s preparing to treat Mr. Warren.

(State’s Exhibit 10). State’s exhibit 12 depicts the EMT using scissors cut off

Warren’s shirt (3R.R. at 84, 85). State’s Exhibit 14 depicts Warrant transferred

from the chair he was sitting in to the gurney. State’s Exhibit 15 is a less blurry

picture of them Warren on the gurney and the EMT’s strapping him down for

transport. State’s exhibit 16 shows Warren as the EMT’s prepare to transport him

to the hospital (3R.R. at 85).

      Although a couple of the photographs might be cumulative there is nothing

about the evidence that might have impressed the jury in some irrational, but

nevertheless indelible way. Appellant characterizes photos as gruesome, however,

except some blood there is nothing gruesome about any of the photos. Most merely




                                        20
depict the victim, sitting in a chair, on the gurney, being treated and being

transported.

      Steve Moreno testified to the blood on Wallace’s shirt. Detective Vasquez

testified that Wallace had a puncture wound toward the side/back of his thoracic

cavity which he sealed with the HyFin chest seal as seen in the photographs. The

photographs were introduced through Mr. Wallace and it took very little time to

introduce them and the State spent very little time on them. They gave the jury a

visual of what occurred that night, helping them understand the treatment testified

to and aiding in their decision as to whether a deadly weapon was used to cause

bodily injury. Here, the probative value outweighed any prejudice that might have

possibly arisen from these photographs. Therefore, the trial court did not abuse its

discretion in admitting the photographs. Casey, 215 S.W.3d at 879; Shuffield, 189

S.W.3d at 786; Prible, 175 S.W.3d at 734.

      Appellant’s second point of error lacks merit and should be overruled.

                   STATE’S RESPONSE TO APPELLANT’S
                        THIRD POINT OF ERROR

      In his third point of error, appellant suggests that the trial court erred in

admitting hearsay testimony from Mr. Wallace (Appellant’s brief at 6). Appellant

does not provide the exact testimony he is complaining about, however, he does

cite to a portion of the record.




                                        21
                            STANDARD OF REVIEW

      A trial court’s decision to admit or exclude evidence is reviewed only for an

abuse of discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App.

2005); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). The trial

court’s ruling should not be disturbed if the decision to admit or exclude the

evidence is within the “zone of reasonable disagreement.” Montgomery, 810

S.W.2d at 391. The appellate court may not substitute its own decision for that of

the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). If the

trial court’s decision on the admission of evidence is supported by the record, the

trial court will not be reversed. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim.

App. 2002); Montgomery, 810 S.W.2d at 379.

                       ARGUMENT AND AUTHORITIES

      Hearsay “is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tex. R. Evid. 801(d). A statement which is not offered for the truth of

the matter asserted, but for some other reason, is not hearsay. Guidry v. State, 9

S.W.3d 133, 152 (Tex. Crim. App. 1999); Dinkins v. State, 894 S.W.2d 330, 347

(Tex. Crim. App. 1995).

      The hearsay rule forbids evidence of out-of-court assertions to prove the fact

asserted in them. Bell v. State, 877 S.W.2d 21, 24 (Tex. App. — Dallas 1994, pet



                                          22
ref’d). The purpose behind the rule is to exclude evidence too unreliable to be

evaluated accurately by the trier of fact. Id. If the out-of-court statement is relevant

only if the trier of fact believes that the statement was both truthful and accurate,

then the statement is hearsay. Id. If the relevancy of the statement does not hinge

on the truthfulness of the statement, it is not hearsay. See 2A STEVE GOODE et

al., Texas Practice Series: Courtroom Handbook on Texas Evidence §801(a)-(d)

(3) ( 2013 ed.). Thus, if the statement is not an assertion or is not offered to prove

the facts asserted, it is not hearsay by definition. Alexander v. State, 820 S.W.2d

821, 823 (Tex. App. — Waco 1991, pet. ref’d) (witness did not relate any

“statement” made by a third-party declarant that was offered for the truth of the

matter asserted; therefore, the testimony was not hearsay).

                                  APPLICATION

      Prior to the testimony in question, Wallace testified that he realized who the

backpack belonged to and it was the same person that was the owner of the

vehicle, not the individual he was confronting. Wallace tried to get the backpack

from the individual. The individual started waving what Wallace later realized was

a knife and yelling for Wallace to get back. At this point, the only way Wallace

knew to protect himself was to try and charge the guy as hard as possible and when

he did lots of stuff dropped all around them. Wallace testified that initially, while

he and the individual were by the vehicle he called out to Steve, a Kiolbassa



                                          23
employee to let him know what was happening. The State asked Wallace the

following:

      Q.    (By Mr. Speir) Yes, sir. What did you tell Steve?
      A.     I told Steve there was someone there trying to break into a
      vehicle and to -- that I needed assistance.

(3R.R. at 73, 74). Wallace’s testimony was not hearsay. Wallace did not relate a

statement offered for the truth of the matter asserted. Drake v. State, 860 S.W.2d

182, 184 (Tex. App. — Houston [14 Dist.] 1993, pet. ref’d). If an out of court

statement is not offered for the truth of the matter asserted, but for the purpose of

showing what was said, the statement is not hearsay. Livingston v. State, 739

S.W.2d 311, 331 (Tex. Crim. App 1987).

      Here, the statement was not offered for the truth of the matter asserted in that

it was not offered to prove that appellant was burglarizing vehicles. Instead, the

testimony was offered to show what was said, that the complainant needed help,

and how Steve Moreno became involved. Fletcher v. State, 960 S.W.2d 694, 699

(Tex. App. Tyler 1997)(witness did not relate any statement by a declarant that was

offered for the truth of the matter asserted); Bell, 877 S.W.2d at 24; Alexander, 820

S.W.2d at 823.

      In the alternative, Warren’s statement qualified as a present sense impression

exception to the hearsay rule. A present sense impression is a statement describing

or explaining an event or condition made while the declarant was perceiving the



                                         24
event or condition, or immediately thereafter. Tex. R. Evid. 803(1). The present

sense impression exception to the hearsay rule is based upon the premise that the

contemporaneity of the event and the declaration ensures reliability of the

statement. Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999). The

rationale underlying the present sense impression is that: (1) the statement is safe

from any error of the defect of memory of the declarant because of its

contemporaneous nature, (2) there is little or no time for a calculated misstatement,

and (3) the statement will usually be made to another (the witness who reports it)

who would have an equal opportunity to observe and therefore check a

misstatement. Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App. 1992);

Esparza v. State, 31 S.W.3d 338, 342 (Tex. App. — San Antonio 2000, no pet.).

      To be admissible as a present sense impression, a statement must (a)

describe or explain an event or condition, (b) be expressed by the person who made

the observation, and (c) be made contemporaneously with or immediately after the

observation. See Tex. R. Evid. 803(1). Warren’s statement clearly was describing

what was happening as it was occurring so that Steve could assist him in handling

the situation, and was therefore, admissible under the present sense impression

exception. See Harris v. State, 736 S.W.2d 166 (Tex. App. — Houston [14th Dist.]

1987, no pet.).




                                         25
      Warren’s statement was also admissible as an excited utterance. A statement

“relating to a startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition” is admissible hearsay.

Tex.R.Evid. 803(2).

      Finally, error, if any was harmless. The admission of inadmissible hearsay is

non-constitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998). Non-constitutional error that does not affect appellant’s substantial

rights are disregarded. Tex. R. App. P. 44.2(b). The court reviews the record as a

whole to determine whether the error influenced the jury’s verdict. Johnson, 967

S.W.2d at 417. The error is harmless if we determine that the error did not

influence or had only a slight influence on the verdict. Fowler v. State, 958 S.W.2d

853, 865 (Tex. App. — Waco 1997), aff’d, 991 S.W.2d 258 (Tex. Crim. App.

1999).

      In light of the entire record, the admission of Warren’s testimony regarding

what he yelled out to Steve, if error, was harmless. Tex. R. App. P. 44.2(b).

      Appellant’s third point of error lacks merit and should be overruled.




                                         26
                                   Conclusion

     WHEREFORE, PREMISES CONSIDERED, the State submits that this case should in

all things be affirmed.

.                               Respectfully submitted,

                                Nicholas “Nico” LaHood
                                Criminal District Attorney
                                Bexar County, Texas



                                STEVEN SPEIR, DANIEL WALKER
                                Assistant Criminal District Attorney
                                Bexar County, Texas


                                _/s/Mary Beth Welsh ___________________
                                MARY BETH WELSH
                                Assistant Criminal District Attorney
                                Bexar County, Texas
                                Paul Elizondo Tower
                                101 W. Nueva, Suite 370
                                San Antonio, Texas 78205
                                mwelsh@bexar.org
                                (210) 335-2782
                                (210) 335-2436 (fax)
                                State Bar No. 00785215
                                (On Appeal)

                                Attorneys for the State




                                        27
                              Certificate of Service

      I, MARY BETH WELSH, Assistant Criminal District Attorney, Bexar County,

Texas, hereby certify that a true file stamped copy of the above and foregoing State’s

Brief was mailed to James C. Oltersdorf, Attorney for Appellant, 410 South Main St.,

Suite 205, San Antonio, Texas 78204.




                                                       __/s/Mary Beth Welsh ____
                                                       MARY BETH WELSH


                           Certificate of Compliance

      Pursuant to rule 9.4(i)(1)&(i)(2) of the Texas Rules of Appellate Procedure,

I, Mary Beth Welsh, Assistant Criminal District Attorney, Bexar County, Texas,

certify that this foregoing brief contains 6,048 words from the beginning of the

State’s response to appellant’s first point of error until, but excluding, the signature

block and the total word count is 7,325.




                                                       _/s/Mary Beth Welsh ____
                                                       MARY BETH WELSH



                                           28
