                                                                                ACCEPTED
                                                                            04-15-00289-CR
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                       11/9/2015 2:43:45 PM
                                                                             KEITH HOTTLE
                                                                                     CLERK

                    NO. 04-15-00289-CR

                IN THE COURT OF APPEALS                FILED IN
                                                4th COURT OF APPEALS
                                                 SAN ANTONIO, TEXAS
                        FOR THE                 11/9/2015 2:43:45 PM
                                                  KEITH E. HOTTLE
         FOURTH COURT OF APPEALS          DISTRICT      Clerk


                        OF TEXAS

                  SAN ANTONIO, TEXAS


                 RODNEY JOE GARRETT,
                      Appellant

                            VS.

                  THE STATE OF TEXAS,
                        Appellee

              Trial Cause No. 2014-CR-3151
            Appeal from the 187th District Court
                   Bexar County, Texas
             Hon. Steven C. Hilbig, Presiding

                 BRIEF FOR APPELLANT

                                  MICHAEL D. ROBBINS
                                  Assistant Public Defender
                                  Paul Elizondo Tower
                                  101 W. Nueva St., Suite 370
                                  San Antonio, Texas 78205
ORAL ARGUMENT                     (210) 335-0701
NOT REQUESTED                     FAX (210) 335-0707
                                  mrobbins@bexar.org
                                  Bar No. 16984600

                                  ATTORNEY FOR
                                  APPELLANT

                             i
                            Identity of Parties and Counsel

      Pursuant to TEX. R. APP. P. 38.1(a) (West 2015), the parties to this suit are as

follows:

      (1)     RODNEY JOE GARRETT, TDCJ #02006370, Garza East Transfer

Facility, 4304 Highway 202, Beeville, Texas 78102, is the appellant and was the

defendant in trial court.

      (2)     The STATE OF TEXAS, by and through the Bexar County District

Attorney’s Office, Paul Elizondo Tower, 101 W. Nueva St., San Antonio, Texas

78205, is the appellee and prosecuted this case in the trial court.

      The trial attorneys were as follows:

      (1)     Rodney Joe Garrett was represented by CHARLES BUNK and

KELLY McGINNIS, 130 E. Travis St., Suite 435, San Antonio, Texas 78205.

      (2)     The State of Texas was represented by NICHOLAS LAHOOD,

District Attorney, and CARRIE MOY and CLARISSA FERNANDEZ, Assistant

District Attorneys, Paul Elizondo Tower, 101 W. Nueva St., San Antonio, Texas

78205.

         The appellate attorneys are as follows:

      (1)     Rodney Joe Garrett is represented by MICHAEL D. ROBBINS,

Assistant Public Defender, Paul Elizondo Tower, 101 W. Nueva St., Suite 370, San

Antonio, Texas 78205.


                                           ii
      (2)   The State of Texas is represented by the BEXAR COUNTY

DISTRICT ATTORNEY’S OFFICE, Appellate Division, Paul Elizondo Tower,

101 W. Nueva St., Suite 710, San Antonio, Texas 78205.

      The trial judge was HON. STEVEN C. HILBIG, 187th District Court,

Cadena-Reeves Justice Center, 300 Dolorosa St., 2nd Floor, San Antonio, Texas

78205. There was also a pre-trial competency hearing, not relevant to this appeal,

heard by HON. ANDREW CARRUTHERS, Criminal Law Magistrate, Cadena-

Reeves Justice Center, 300 Dolorosa St., 2nd Floor, San Antonio, Texas 78205.




                                        iii
                                Table of Contents

                                                                                  Page

Identity of Parties and Counsel .    .        .     .   .      .     .     .         ii

Table of Contents .      .      .    .        .     .   .      .     .     .        iv

Table of Authorities     .      .    .        .     .   .      .     .     .        vi

A Note Regarding Record References .          .     .   .      .     .     . viii

Statement Regarding Oral Argument .           .     .   .      .     .     . viii

Statement of the Case    .      .    .        .     .   .      .     .     .         1

Issues Presented   .     .      .    .        .     .   .      .     .     .         2

                   APPELLANT’S FIRST POINT OF ERROR
      The evidence was legally insufficient to support the conviction for
      aggravated assault on a public servant, because the evidence does not
      support the finding that Mr. Garrett intentionally or knowingly
      threatened imminent bodily injury to Detective Crawford.

                  APPELLANT’S SECOND POINT OF ERROR
      The trial court erred when it overruled Mr. Garrett’s objection to the
      jury instruction containing a presumption suggesting that Mr. Garrett
      knew that Deputy Crawford was a public servant, because there was
      no evidence that the deputy was wearing a distinctive police uniform
      or badge. (RR 8, 125, 129).

                   APPELLANT’S THIRD POINT OF ERROR
      The trial court erred when, in the punishment phase, it sustained the
      State’s relevance objections to questions to Mr. Garrett’s mother
      Laurie Lee, because the questions were helpful to the jury in
      determining the appropriate punishment. (RR 9, 69-71).

Statement of Facts .     .      .    .        .     .   .      .     .        .      3

Summary of the Argument         .    .        .     .   .      .     .        .     18

                                         iv
Argument     .     .     .      .     .       .     .   .   .   .   .   20

      Appellant’s First Point of Error (Restated)   .   .   .   .   .   20

      Appellant’s Second Point of Error (Restated)      .   .   .   .   27

      Appellant’s Third Point of Error (Restated) .     .   .   .   .   31

Conclusion and Prayer    .      .     .       .     .   .   .   .   .   35

Word Count Certificate of Compliance          .     .   .   .   .   .   36

Certificate of Service   .      .     .       .     .   .   .   .   .   36




                                          v
                               Table of Authorities

                                                                         Page

                                    Constitution

U.S. CONST. amend. XIV .        .     .        .   .   .   .   .     .     21

                                      Statutes

TEX. CODE CRIM. PROC. art. 37.07 (West 2006)       .   .   .   .     .     33

TEX. CODE CRIM. PROC. art. 44.29 (West 2006)       .   .   .   .     .     35

TEX. PENAL CODE § 2.05 (West 2011) .           .   .   .   .   .     .     29

TEX. PENAL CODE § 6.03 (West 2011) .           .   .   .   .   .     .     21

TEX. PENAL CODE § 22.01 (West 2011)            .   .   .   .   .     .20,21

TEX. PENAL CODE § 22.02 (West 2011)            .   .   .   .   . 1,20,21,28

                                       Rules

TEX. R. APP. P. 9.4 (West 2015) .     .        .   .   .   .   .     .     36

TEX. R. APP. P. 38.1 (West 2015)      .        .   .   .   .   .     .      ii

TEX. R. APP. P. 44.2 (West 2015)      .        .   .   .   .   .     .     27

TEX. R. EVID. 401 (West 2015) .       .        .   .   .   .   .     .     34

                                       Cases

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)    .   .     .     30

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) .   .   .     .     22

Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001) .    .   .     .     22


                                          vi
Cooks v. State, 844 S.W.2d 697 (Tex. Crim. App. 1992) .        .     .     .   34

Ellison v. State, 201 S.W.3d 714 (Tex. Crim. App. 2006) .      .     .     .   34

Flanagan v. State, 675 S.W.2d 734 (Tex. Crim. App. 1984)       .     .     .   22

Garcia v. State, 239 S.W.3d 862 (Tex. App. – Houston [1st Dist.] 2007, pet. ref’d)
     .       .     .     .     .     .     .     .     .      .     .       . 34

Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) .      .     .     .26,27

Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996) .        .     .     .   30

Jackson v. Virginia, 443 U.S. 307 (1979)      .   .     .      .     .     .   21

Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996) .        .     .     .   22

Lamb v. State, 186 S.W.3d 136 (Tex. App. – Houston [1st Dist.] 2005, no pet.)
     .      .      .    .     .     .      .    .      .      .     .      . 33

Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) .        .     .     .   20

Nicholas v. State, No. 04-07-00499-CR, 2008 Tex. App. LEXIS 5981, 2008 WL
      3057842 (Tex. App. – San Antonio Aug. 6, 2008, no pet.)(mem. op., not
      designated for publication)   .     .      .    .      .    .      .33,34

Payne v. State, 596 S.W.2d 911 (Tex. Crim. App. 1980) .        .     .     .   28

Salazar v. State, 643 S.W.2d 953 (Tex. Crim. App. 1983) .      .     .     .   28

Stogiera v. State, 191 S.W.3d 194 (Tex. App. – San Antonio 2005, no pet.) .    22

Ulster County Court v. Allen, 442 U.S. 140 (1979) .     .      .     .     .   29

Willis v. State, 790 S.W.2d 307 (Tex. Crim. App. 1990) .       .     .     .   29




                                        vii
                     A Note Regarding Record References

      There are 10 sequentially-numbered volumes in the reporter’s record of the

trial and suppression hearing, as well and an additional volume by a swing reporter

containing the ruling on the motion to suppress, and a volume from the mental

health hearing in the Magistrate’s Court. In this brief, references to the 10

numbered volumes will be thus: (RR 3, ___). References to the volume by the

swing reporter, Kayleen Rivera, will be thus: (RR KR 4/16/15, ___). The

Magistrate’s Court volume is not relevant to this appeal. References to the clerk’s

record will be thus: (CR, ___). The names of the testifying witnesses will appear in

bold type at the beginning of the summary of their testimony.



                     Statement Regarding Oral Argument

      The issues raised in this appeal may be determined from the record and legal

authorities alone. For that reason, the undersigned counsel does not request oral

argument, but will present oral argument if it is requested by the State and granted

by the Court.




                                        viii
TO THE COURT OF APPEALS FOR THE FOURTH COURT OF APPEALS
DISTRICT OF TEXAS:

       This brief is filed on behalf of Appellant, Rodney Joe Garrett, by Michael D.

Robbins, Assistant Public Defender.



                                  Statement of the Case

       Appellant Rodney Joe Garrett was charged by indictment with the offense of

aggravated assault on a public servant, with a deadly weapon.1 (CR, 6). A jury was

sworn (RR 5, 162), and Mr. Garrett pleaded not guilty. (RR 6, 13). Following

evidence and arguments of counsel, the jury found Mr. Garrett guilty of aggravated

assault on a public servant, with a deadly weapon. (CR, 96; RR 8, 156-156). Mr.

Garrett elected that the jury assess punishment in case of conviction. (CR, 84). The

jury assessed a sentence of 34 years’ confinement, with no fine (CR, 112; RR 9,

96), and the trial court sentenced accordingly (CR, 114-115; RR 9, 100-101). The

court certified that this is not a plea bargained case and that Mr. Garrett has the

right of appeal. (CR, 113). Mr. Garrett timely filed a notice of appeal. (CR, 116).

This appeal follows.




1
 A felony of the first degree, in violation of TEX. PENAL CODE §§ 22.02(a)(2) & (b)(2)(A) (West
2011). The indictment also contained a count alleging attempted capital murder, but this count
was waived by the State. (RR 5, 11).

                                              1
                          Issues Presented

                  Appellant’s First Point of Error

The evidence was legally insufficient to support the conviction for
aggravated assault on a public servant, because the evidence does not
support the finding that Mr. Garrett intentionally or knowingly
threatened imminent bodily injury to Detective Crawford.

                Appellant’s Second Point of Error

The trial court erred when it overruled Mr. Garrett’s objection to the
jury instruction containing a presumption suggesting that Mr. Garrett
knew that Deputy Crawford was a public servant, because there was
no evidence that the deputy was wearing a distinctive police uniform
or badge. (RR 8, 125, 129).

                 Appellant’s Third Point of Error

The trial court erred when, in the punishment phase, it sustained the
State’s relevance objections to questions to Mr. Garrett’s mother
Laurie Lee, because the questions were helpful to the jury in
determining the appropriate punishment. (RR 9, 69-71).




                                  2
                                    Statement of Facts 2

Prelude: security videos at South Park Mall.

       Paul Rosas was the security director of South Park Mall in San Antonio.

(RR 6, 20). He reviewed surveillance video made at the mall on February 11, 2014.

(RR 6, 20-21). The footage showed a truck coming onto the mall property from

Military Drive. The driver got out of the truck and ran toward Bealls. (RR 6, 23).

Ramiro Palacios, the manager of Bealls, burned a CD of security video from the

store’s internal security cameras that same day. (RR 6, 56-57). Matthew Van

Auken, the loss prevention officer from the Sears store in the mall, searched his

store’s surveillance videos from that day and and found a video showing a semi-

truck (hereafter, “semi”) that entered the parking lot without a trailer and smashed

into cars parked in the lot. (RR 6, 76-77).

A police chase leads to South Park Mall. 3

       John Aguillon was a deputy with the Bexar County Sheriff’s Office

(“BCSO”). On February 11, 2014, he was on duty, in uniform, and driving a

marked patrol vehicle. (RR 6, 88). He was patrolling the area around Marbach

Road and Loop 1604 when a call came in for a vehicle theft in progress. (RR 6,

89). He proceeded to Loop 410 and Old Pearsall Road, heading southbound. He


2
  This brief will summarize the testimony as given at trial. Appellant does not concede that the
State’s evidence is true.
3
  The route of this long chase may be seen on a map admitted into evidence. (RR 10, SX23).

                                               3
saw a white semi going northbound, with BCSO Deputy Derrick Crawford in

pursuit. Deputy Aguillon turned around and joined in the pursuit, at Loop 410 and

Valley Hi Drive. (RR 6, 90). Deputy Crawford was also driving a marked patrol

vehicle, with overhead lights flashing. The semi they were pursuing was just a cab.

(RR 6, 91). The pursuit proceeded onto U.S. Highway 90 eastbound. (RR 6, 92).

The three vehicles were driving at about 90 MPH. It was about 1:00 PM, and

traffic on the highways was moderate. (RR 6, 93).

      Deputy Aguillon radioed to Deputy Crawford that he would “call the chase,”

meaning that he would report their location to the BCSO dispatcher. They were all

in the center lane. Soon, San Antonio Police Department (“SAPD”) units joined in

the pursuit. (RR 6, 94). Deputy Aguillon became aware that weapons were being

fired when Deputy Crawford radioed, “He’s shooting at me. He fired one round.

Shots fired with a long arm.” (RR 6, 95). Deputy Crawford first said this at Loop

410 and Valley Hi Drive, and he stated that shots had been fired four distinct times.

(RR 6, 95-96). The semi changed from one lane to another during the chase,

dodging traffic. Drivers were stopping in the middle of the highway. (RR 6, 97).

The driver of the semi exited the highway three times, driving on the access road

before getting back on the highway. The driver ran through traffic signals at

intersections on the access road. (RR 6, 98). He did not strike any vehicles, but he

ran some off the road. (RR 6, 99).


                                          4
      The semi exited form Highway 90 at I-35 and went southbound. (RR 6,

100). He stayed on I-35 for about five miles, until Military Drive, although he

exited the freeway onto the service road and ran stop lights at Theo Avenue and

Malone Avenue. He exited the freeway at a place where there was no exit ramp.

After running the lights, the driver got back on I-35. (RR 6, 101). Deputy Aguillon

had his overhead lights, air horn, and siren going. All officers involved in the chase

had their overheads going. (RR 6, 103).

      The semi exited I-35 at Military Drive. (RR 7, 7). The driver had lost but

regained control of the semi while still on the freeway. (RR 7, 8) Because of traffic

back-up at the Military Drive intersection, the semi got into the far left lane of the

service road and got onto Military Drive by driving over a median and turning onto

Military. Deputy Aguillon followed the semi, followed by other officers. (RR 7, 9).

The semi drove on Military Drive toward Zarazamora Street, running a traffic

signal and almost colliding with a vehicle at the light. (RR 7, 10). The semi jumped

the center median on Military and entered the South Park Mall parking lots just

east of Zarzamora. (RR 7, 11).

      Deputy Aguillon turned onto Zarazmora and drove parallel to the route of

the semi. (RR 7, 11-12). The semi made a U-turn in the parking lot and drove

nearer to the mall. Deputy Aguillon turned into the mall lot in the area near the

Sears store. (RR 7, 13). The deputy saw the driver of the semi slow down, open the


                                          5
door, and jump out. (RR 7, 14). The semi kept rolling. Deputy Aguillon lost sight

of the semi driver for second, but then saw him pop up and start running. (RR 7,

15). The driver ran northward, toward Deputy Aguillon’s patrol car, which was just

south of Bealls. (RR 7, 16). The driver of the semi ran between cars on the lot and

made a couple of turns. Deputy Aguillon lost sight of him briefly, but the man

popped up right in front of the deputy’s car. The man, who did not have anything

in his hands, ran toward Bealls. Deputy Aguiillon got out of his car and followed

the man, yelling, “Stop. Police. Stop. Stop.” He did not know whether the man was

armed, and he worried that the man could take hostages. (RR 7, 17).

      Deputy Aguillon drew his service pistol. (RR 7, 18). They both ran toward,

and into, Bealls. The deputy lost sight of the man inside the store. (RR 7, 19).

Back-up officers followed Deputy Aguillon into the store, and the deputy heard

one of them say, “Let me see your hands.” The deputy ran toward the voices, and

he saw the man lying down, with two officers attempting to pull his hands from

beneath him. (RR 7, 20). The officers placed the man in custody and led him out of

the store. (RR 7, 21). The officers took the man to Deputy Aguillon’s patrol car.

The deputy asked the man for identifying information. (RR 7, 23). The man

complained about his left knee, and Deputy Aguillon called EMS. (RR 7, 25).

Deputy Aguillon identified Rodney Joe Garrett in court as the driver of the semi.

(RR 7, 68).


                                         6
      Bobby Garza was a BCSO deputy, who heard about the chase on the radio

and proceeded to follow it to the mall. (RR 7, 70). When he got to the mall, Mr.

Garrett was already in custody. (RR 7, 71). Deputy Garza was assigned to stand

watch over Mr. Garrett, who was already in Deputy Aguillon’s vehicle. (RR 7, 72).

After about 15 minutes, Deputy Garza transferred Mr. Garrett to his own vehicle,

for transport to the magistrate’s office. (RR 7, 73). Mr. Garrett was in Deputy

Garza’s back seat, and the deputy got into the driver’s seat. He was not having any

conversation with Mr. Garrett. (RR 7, 74). Mr. Garrett said something

spontaneously. He said he was sorry for shooting at the deputies. He said the only

reason that he did it was so that they would get scared and stop the chase. RR 7,

75). Mr. Garrett did not say anything else to Deputy Garza. (RR 7, 76).

      BCSO Deputy Manuel Herrera was working in a traffic unit on February

11, 2014 and was dispatched to the area around Highway 90 and Cupples Road.

(RR 7, 91). He was aware that someone driving a stolen semi was shooting at the

police, and he positioned himself at a location where he anticipated the chase

would pass. (RR 7, 92). He was carrying a service pistol in his belt, and also had a

Benelli AR-15 rifle in his patrol vehicle. (RR 7, 93). When the semi passed

through the U.S. 90/Cupples intersection, Deputy Herrera got his rifle and fired

several at the driver of the semi. (RR 7, 94). He fired three or four shots, which

probably struck the semi. He announced this over police radio, and then joined in


                                         7
the chase. (RR 7, 95). He felt he was justified in using deadly force under the

circumstances. Deputy Herrera’s patrol vehicle had video capability. (RR 7, 95). A

DVD video of him firing the shots and then joining the pursuit was admitted into

evidence and played for the jury. (RR 7, 98-100; RR10, SX24).

       Several BCSO investigators testified about taking photos, making videos,

and securing physical evidence in the parking lot of South Park Mall. See generally

(RR 7, 129 – 207). The details of their testimony are not relevant to the issues in

this appeal, so this brief will discuss only the physical evidence collected. The

various photos and videos are contained in the exhibits volume of the record.

Investigator Jason Tibbs found three spent .410 shotgun shells in the cab of the

semi, as well as seven live rounds. He also found six live rounds in the parking lot,

within 20 or 30 feet of the shotgun 4 and within 300 feet of the semi. (RR 7, 149-

150). He also collected a live round from the barrel of the shotgun. (RR 7, 171-

172; RR 10, SX47). Investigator Janice Henry collected a gunshot residue

(“GSR”) kit from Mr. Garrett.5 (RR 7, 188).

       BCSO Investigator Jennifer Baeza was the lead investigator of the case.

(RR 7, 212). When she arrived at the mall, she questioned officers at the scene

about what happened, and they pointed out Mr. Garrett, who was in custody in a

4
  The weapon was a shotgun rather than a rifle. (RR 7, 176).
5
  Christina Vachon, a forensic scientist at the Bexar County Crime Lab, tested the GSR kits and
found that Mr. Garrett may have discharged a firearm, handled a discharged firearm, or been in
close proximity to a discharging firearm. (RR 8, 59).

                                              8
patrol vehicle. She spoke briefly with Mr. Garrett. (RR 7, 213). Investigator Baeza

directed investigators where to take photos and to collect evidence (RR 4, 214-

215). She also processed the secondary scene on Cupples Road. (RR 7, 215). She

requested that the shotgun be tested by the Crime Lab, 6 and she directed that the

GSR kit be taken. (RR 7, 217-218).

       Deputy Baeza spoke with Mr. Garrett at length the following day. (RR 7,

219). The investigator read Mr. Garrett his rights, and he indicated that he

understood his rights and signed off on the form. (RR 7, 220; RR 10, SX59). The

interview took place in an interview room at the jail. No one else was present. The

interview was recorded. (RR 7, 223). Investigator Baeza made no threats or

promises to Mr. Garrett. She did not use coercive tactics and did not deny him any

basic necessities. Mr. Garrett at no time indicated that he wanted to end the

interview. (RR 7, 224-225).

       During the interview (RR 10, SX60), Mr. Garrett was forthcoming. He

admitted to driving the semi, which was verified as stolen. He admitted that he had

recently used methamphetamines prior to the chase. He admitted that the narcotics

and paraphernalia found inside the semi were his. (RR 3, 228). He purchased the

shotgun shells at Wal-Mart and he pawned items stolen from a different trailer



6
 Edward Wallace, the firearm supervisor at the Crime Lab, testified that that three spent shells
were fired from the shotgun found at the scene. (RR 8, 11).

                                               9
to get money to purchase the shotgun shells. (RR 3, 229). The shotgun was also

stolen from the other trailer. (RR 7, 254). Mr. Garrett stated that the whole crime

spree lasted four days. (RR 7, 230).

      SAPD Officer Mark Gallardo was in the area when he heard an emergency

tone about a police chase and shots being fired at an officer. He went to Highway

90 and saw an officer in pursuit of a semi. (RR 8, 25). He caught up with the two

deputies in pursuit at Highway 90 and Acme Road, and joined the chase. (RR 8,

26). His patrol car was equipped with a COBAN camera system. (RR 8, 27). He

described the situation as scary, because the roads were wet that day and there was

a lot of traffic. (RR 8, 28). During the chase, Officer Gallardo saw the semi driver

pointing a weapon at pursuing officers. They were driving about 90 MPH. (RR 8,

29). The COBAN video was admitted into evidence and played for the jury,

without the sound track. (RR 8, 34; RR 10, SX64). Officer Gallardo was one of

many officers who pursued the semi to South Park Mall. He and two BCSO

deputies followed Mr. Garrett into Bealls and apprehended him. He resisted

somewhat, and the officers did not know whether or not he was armed. The BCSO

deputies subdued and cuffed Mr. Garrett. Then they picked him up, searched him

and escorted him from the store. (RR 8, 44-45).

The genesis of the pursuit.




                                         10
      Derek Branning was driving home on I-35 on February 11, 2014 when he

saw a semi that looked like one stolen from the work yard of his employer, Great

Southwestern Construction, in Devine. (RR 8, 62-63). The semi was stolen a

couple of weeks earlier. (RR 8, 63-64). When he saw the semi, it was heading

north approaching the Bexar County line. Mr. Branning verified that it was the

company truck, and called 9-1-1. (RR 8, 65). He remained on the phone, giving his

location, until officers arrived. They continued northward on I-35 until the Loop

410 interchange, and Mr. Branning stayed with the semi for a few miles on Loop

410. (RR 8, 66). The semi was driving normally at first. However, when the

officers arrived, the semi pulled over to the side and then took off, driving across

the median and not using exit ramps. It was dangerous and erratic driving. (RR 8,

67). Mr. Branning saw only one officer involved at the start of the chase. The

officer was in a marked patrol car. Mr. Branning broke off from the chase when the

9-1-1 dispatcher told him to. (RR 8, 68).

      Derrick Crawford was a BCSO deputy, and was the named complainant in

the case. (CR, 9; RR 8, 70). He was working radar on Kinney Road when he got a

dispatch for a vehicle theft in progress. (RR 8, 71). He planned to stop the semi and

determine whether or not it was stolen. (RR 8, 73). He first encountered the semi at

the I-35/Loop 410 interchange. He also saw Derek Branning’s “chase” vehicle, a

pickup truck with hazard lights on. They were going over Quintana Road on Loop


                                            11
410. (RR 8, 74). Deputy Crawford proceeded onto Loop 410 and caught up with

the semi at Pearsall Road. He pulled up beside of the chase vehicle, and the driver

waved him toward the semi. (RR 8, 75). He passed the chase vehicle and moved to

the outside lane behind the semi, activating his red and blue emergency lights to

get the driver’s attention. The semi pulled over, as if the stop, but then accelerated

and went to the right down a small ditch, crossing the grassy median onto the

access road. (RR 8, 76).

      Thus began the chase. The semi continued on the access road, while Deputy

Crawford remained on Loop 410 until the Ray Ellison Drive exit, where he exited

and got behind the semi. The semi ran the stop signs at the Ray Ellison

intersection. (RR 8, 77). After crossing Ray Ellison, the semi drove over the grassy

median back onto Loop 410. Deputy Crawford entered the Loop using the on-

ramp. (RR 8, 78). The deputy was driving a marked patrol car. As they approached

Valley Hi Drive, the semi slowed down. The driver’s side door opened, and the

driver stepped out of the cab and leaned around the cab. (RR 8, 79). The driver

extended his arm in the direction of Deputy Crawford, and the deputy saw a long

gun or rifle. He was two or two and a half car lengths behind the semi. He applied

his brakes, leaned over the center console, and saw a muzzle flash. He felt scared

and threatened. (RR 8, 80).




                                          12
      Deputy Crawford feared that he would be shot, and injured or killed. The

driver shot at him one time at that location. The deputy heard what sounded like

shotgun pellets hitting his vehicle and windshield. He rose up and saw the driver

of the semi re-enter the cab and accelerate. Deputy Crawford continued the pursuit.

(RR 8, 81). The semi moved to the outside lane of Loop 410, as if to exit to Valley

Hi and Highway 90. Deputy Crawford followed him. (RR 8, 82). However, due to

traffic congestion on the exit ramp, the deputy stayed on Loop 410. Around this

time, Deputy Aguillon came up behind him. (RR 8, 83). Deputy Crawford became

the lead vehicle in the pursuit, and handled the radio transmissions (until Deputy

Aguillon started the “call the chase”). (RR 8, 84).

      As they neared Highway 90, the semi cut across the median onto the access

road leading to the eastbound Highway 90 access road. (RR 8, 85). Deputy

Crawford pursued the semi onto the Highway 90 access road, with lights and siren

going. They neared the exit ramp to Military Drive, and the semi slowed down.

(RR 8, 86). The back window of the semi had fallen out, and the driver stuck the

long gun out of the back window and fired another shot. (RR 8, 87). Deputy

Crawford felt threatened. He leaned back over the center console and used his

computer as a shield. He did not see a muzzle flash this time, but heard pellets

strike his vehicle. He rose and saw the semi accelerate and cross the grassy

median. The semi struck a sign and re-entered Highway 90. (RR 8, 88).


                                          13
      Deputy Crawford was concerned that the semi would strike a vehicle on the

highway, and continued the pursuit. At one point, he was driving at 85 to 90 MPH.

(RR 8, 89). The semi drove from lane to lane on the highway. As they passed Old

Highway 90, the semi slowed down again and the driver fired again through the

rear window. Deputy Crawford leaned over the console and shielded himself with

his computer. (RR 8, 90). He did not see the muzzle flash, but he heard pellets

striking his vehicle. (RR 8, 90-91). The semi accelerated on Highway 90, weaving

in and out of traffic. Drivers on the road were moving to get out of the way. By this

time, more officers were involved in the chase. (RR 8, 91).

      The semi left the highway at Callaghan Road. The driver tossed something

out the window as he was going down the exit ramp. The semi went through a red

light at Acme Road, where there were vehicles stopped at the intersection. (RR 8,

92-93). The semi stayed on the access road toward 36th Street, where he crossed

the median and got back on the highway. Once he was back on Highway 90, the

semi again weaved in and out of traffic. (RR 8, 93). The semi left the highway, via

the grassy median, near Gen. McMullen and Cupples. (RR 8, 94). The drive began

to slow down, and fired a fourth shot. (RR 4, 94-95). As before, Deputy Crawford

slowed down and lowered himself over center the console. He again heard pellets

strike his vehicle. (RR 8, 95).




                                         14
      The semi remained on the access road through Gen. McMullen and Cupples.

Deputy Crawford slowed down as they neared Cupples, so that they could clear the

intersection safely. Then he re-entered Highway 90, and Deputy Aguillon became

the primary pursuit vehicle. (RR 8, 96). Deputy Crawford got behind Deputy

Aguillon and began calling the chase. (RR 8, 97). Each time the driver of the semi

fired at him, Deputy Crawford broadcast that shots were fired. When they all got

back on the freeway, the semi continued to weave, and they reached speeds of 90

to 95 MPH. The roads were wet and slippery. (RR 8, 98-99).

      By this time, there were more officers in pursuit of the semi. They all

proceeded east on Highway 90 until they reached I-35 south, where the semi

exited. (RR 8, 99). The semi cut across a concrete ditch and got onto the I-35

service road, proceeding through the Theo and Malone intersections. Then the semi

cut across and exit ramp and re-entered I-35. He slid into a retaining wall near

Division Avenue. (RR 8, 100). He regained control of the semi and continued

southward, cutting across lanes and taking the Military Drive exit. The chase had

gone on for 15 to 20 miles. (RR 8, 101). The semi cut across a median to gain

access to Military drive, heading west toward Zarzamora Street. and turning into

South Park Mall. (RR 8, 102). As the semi approached the Sears store, the driver’s

side door opened and the driver jumped from the semi. He slipped on the ground

and lost his shotgun, but he got back up and ran toward Bealls. (RR 8, 103).


                                        15
         The driver tried without success to pick up the shotgun. He ran directly in

front of Deputy Crawford’s patrol car, which struck the driver. The driver

stumbled but kept running. (RR8, 104). The suspect ran into Bealls, and Deputy

Crawford stopped his patrol car and pursued on foot. (RR 8, 105). Deputies

Crawford and Aguillon, along with an SAPD officer,7 began canvassing the store.

(RR 8, 106). They found the suspect underneath some clothing behind a display

rack. The suspect was in a fetal position. Deputy Crawford grabbed the suspect,

took him to the floor, and began to place him in handcuffs. (RR 8, 107). Deputy

Crawford identified Rodney Joe Garret as the person he was testifying about. (RR

8, 108). Mr. Garrett refused to cooperate, and the officers had to carry him out of

the store. (RR 8, 109).

The verdict of conviction, punishment phase, and post-conviction proceedings.

         Following the close of evidence and argument of counsel, the jury convicted

Mr. Garrett of aggravated assault on a public servant, with a deadly weapon. (CR,

96; RR 8, 156-157). Mr. Garrett elected that the jury assess punishment in case of

conviction. (CR, 84). The issue in the punishment hearing that is relevant to this

appeal will be discussed in detail in Appellant’s Third Point of Error, below. The

jury assessed a sentence of 34 years, with no fine (CR, 112; RR 9, 96), and the trial

sentenced Mr. Garrett accordingly. (CR, 114-115; RR 9, 100-101). The trial court


7
    Mark Gallardo. (RR 8, 34).

                                          16
certified that this not a plea bargained case and that Mr. Garrett has the right to

appeal. (CR, 113). Mr. Garrett timely filed notice of appeal. (CR, 116). The trial

court appointed the Bexar County Public Defender’s Office to represent Mr.

Garrett on appeal. (CR, 117). This appeal follows.




                                        17
                           Summary of the Argument

      First Point of Error. When reviewing a legal sufficiency of the evidence

claim in a criminal case, the appellate court will look at the evidence in a light

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

have found the essential elements of the offense beyond a reasonable doubt. In this

case, no rational trier of fact could have found beyond a reasonable doubt that

Rodney Joe Garrett committed the offense of aggravated assault on a public

servant. The evidence was insufficient to show that Mr. Garrett had either of the

required culpable mental states.

      Second Point of Error. Over objection by the defense, the trial court

charged the jury on the statutory presumption that Mr. Garrett knew that Deputy

Crawford was a public servant if the deputy was wearing a distinctive uniform or

badge. Although this was only a permissive presumption, it was not appropriate in

this case, because there was no evidence presented that Deputy Crawford wore a

distinctive uniform or badge at the time Mr. Garrett shot at him.

      Third Point of Error. At the punishment phase, defense counsel attempted

to ask Mr. Garrett’s mother questions regarding her feelings about his punishment.

The State objected on relevance grounds, and the objections were sustained. The

trial court erred when it sustained these objections, because the questions were




                                         18
relevant to punishment, in that they were helpful to the jury in determining

punishment.




                                     19
                                     Argument

                   Appellant’s First Point of Error (Restated)

      The evidence was legally insufficient to support the conviction for
      aggravated assault on a public servant, because the evidence does not
      support the finding that Mr. Garrett intentionally or knowingly
      threatened imminent bodily injury to Detective Crawford.

      A challenge to the legal sufficiency of the evidence need not be preserved at

trial, and may be raised for the first time on appeal. Mayer v. State, 309 S.W.3d

552, 555 (Tex. Crim. App. 2010). However, defense counsel was aware that the

evidence of intentionally or knowingly threatening bodily injury was lacking, as is

apparent from his jury argument, “Right now is one thing: Did he intentionally or

knowingly threaten bodily injury?” (RR 8, 140).

Aggravated assault on a public servant.

      Mr. Garrett was indicted in Cause No. 2014-CR-3151 for the offense of

aggravated assault on a public servant. (CR, 4). This is a felony of the first degree,

in violation of TEX. PENAL CODE §§ 22.02(a)(2) & (b)(2)(B) (West 2011). The jury

found Mr. Garrett guilty of the offense, “as charged in the indictment.” (CR, 9; RR

8, 156-157).

      A person commits the offense of assault if the person intentionally or

knowingly threatens another with imminent bodily injury. TEX. PENAL CODE §

22.01(a)(2) (West 2011). As indicted in this case, a person commits the offense of

aggravated assault if the person commits the offense of assault as defined in

                                          20
Section 22.01 of the Penal Code, and uses or exhibits a deadly weapon during the

commission of the assault. TEX. PENAL CODE § 22.02(a) (West 2011). Aggravated

assault is generally a felony of the second degree, but is a felony of the first degree

if it 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 §

22.02(b)(2)(B)(West 2011).

      A person acts intentionally, or with intent, with respect to the nature of his

conduct when it is his conscious objective or desire to engage in the conduct. TEX.

PENAL CODE § 6.03(a) (West 2011). A person acts knowingly, or with knowledge,

with respect to the nature of his conduct or the circumstances surrounding his

conduct when he is aware of the nature of his conduct or that the circumstances

exist. TEX. PENAL CODE § 6.03(b) (West 2011).

Legal sufficiency: the general principles.

       Legal sufficiency of the evidence “is an essential of the due process

guaranteed by the Fourteenth Amendment that no person shall be made to suffer

the onus of a criminal conviction except upon sufficient proof – defined as

evidence necessary to convince a trier of fact beyond a reasonable doubt of the

existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316

(1979).   The standard of review is whether, when viewed in the light most

favorable to the prosecution, any rational trier of fact could have found the


                                          21
essential elements of the offense beyond a reasonable doubt. Id. at 319; Brooks v.

State, 323 S.W.3d 893, 899, 912 (Tex. Crim. App. 2010). The appellate court will

consider all evidence admitted, whether proper or improper. Conner v. State, 67

S.W.3d 192, 197 (Tex. Crim. App. 2001).

       “The jury is the exclusive judge of the credibility of witnesses and of the

weight to be given their testimony. [Citation omitted]. Likewise, reconciliation of

conflicts in the evidence is within the exclusive province of the jury.” Jones v.

State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). The trier of fact is free to

believe or disbelieve the testimony of any witness. Flanagan v. State, 675 S.W.2d

734, 746 (Tex. Crim. App. 1984) (op. on reh’g). Likewise, the jury determines the

weight to be afforded contradicting testimony. Brooks, 323 S.W.3d at 899;

Stogiera v. State, 191 S.W.3d 194, 196 (Tex. App. – San Antonio 2005, no pet.).

Application.

      It is obvious that Mr. Garrett did not intentionally or knowingly threaten

Deputy Crawford with bodily. That may be seen from the testimony of the State’s

own witnesses, and from the interrogation video of Mr. Garrett which was tendered

into evidence.

      The first iteration of this in front of the jury was in the testimony of Deputy

Bobby Garza, who was referring to the period after Mr. Garrett was arrested, while

Mr. Garrett was in the back of Deputy Garza’s patrol car:


                                         22
      Q.    At some point does he say something to you?

      A.    Yes, he does.

      Q.    Does he just volunteer that to you?

      A.    Yes, he does.

      Q.    Would you tell the jury what he told you, please.

      [Defense objection overruled]

      Q.    Would you tell the jury what the suspect told you?

      A.     He apologized. He said he was sorry for what he did, for shooting at
Deputies. And the only reason he did that was so they could get scared, you know,
and stop the chase. He thought that would scare them.
(RR 7, 75).

      Mr. Garrett’s true intentions were laid bare during his recorded interview

with Investigator Baeza. A redacted version of this interview was admitted into

evidence as State’s Exhibit 60 during the guilt phase of the trial (RR 7, 220), and

an un-redacted version was admitted as State’s Exhibit 66 during the punishment

phase. (RR 9, 26). This brief will refer to the redacted version, because it was all

that the jury saw during the guilt phase. The video is not time-stamped, so this

brief will reference the actual timing when played on a computer or DVD player.

Because of the redaction, SX60 was divided into several parts. This brief will

reference State’s Exhibit 60 Part 005 (21,478 KB) and Part 007 (15,634 KB).

      Prior to Mr. Garrett’s detailed confession, Investigator Baeza complemented

his driving ability, saying, “You’re pretty good, too.” (SX60 Part 005, 00:18). Mr.

                                         23
Garrett told the investigator that he did not want to get pulled over. He could not

“loose” Detective Crawford, and was looking for a way to “shake him,”

presumably meaning that he was looking for a way to stop the pursuit right after it

started. (SX60 Part 005, 01:25). He tried to make sure that all other traffic was not

put in harm’s way. (SX60 Part 005, 01:37). When he could not “shake” Detective

Crawford, “I got the shotgun.” (SX60 Part 005, 02:11). He thought that, “If I use

the shotgun maybe they’ll get scared so much [unintelligible] that they’ll stop

chasing me” and back off. (SX60 Part 005, 02:53).

      Mr. Garrett started crying at this point during the video, and had to regain

his composure. He said he cocked the hammer of the shotgun back, leaned out the

window and aimed toward the pursuing officer(s), “but I’m not going to shoot at

them. I’m not going to shoot directly to kill at all. I shoot above them.” This is a

technique he learned from his grandfather, who taught him to shoot over the heads

of coyotes. (SX60 Part 005, 03:17 – 03:34). Investigator Baez asked him directly,

“So you didn’t want to kill them?” Mr. Garrett nodded that he did not. (SX60 Part

005, 03:35). He fired the first shot above them officer(s) and slowed down a bit.

(SX60 Part 005, 03:40).

      Shooting above the officer(s) did not work to scare them off, and they

continued the pursuit, so Mr. Garrett shot a second time before they reach Highway

90. (SX60 Part 005, 04:03). Mr. Garrett hung out the window of the semi the first


                                         24
two times he shot, but not the third time. (SX60 Part 005, 04:08). Instead, he “took

out” the back window of the semi, “so I could have a better aim towards the

radiator” of the patrol car. (SX60 Part 005, 05:35). His intention was to disable the

car by shooting the radiator. (SX60 Part 005, 05:50). When this did not work, Mr.

Garrett decided he was done shooting, and his motivation now was only to try to

get away. (SX60 Part 005, 06:22). He was aware that he was being shot at by

Deputy Manuel Herrera, see (RR 7, 95), and he did not want to shoot back,

presumably because he did not want to hurt anyone or be hurt or killed himself.

(SX60 Part 005, 06:58).

      Mr. Garrett went on to describe the remainder of the chase into the South

Park Mall parking lot. He recalled that he dropped the gun when he jumped out of

the semi. (SX60 Part 005, 14:02). He tried to reach for it, but it was sliding so

much in the wet lot that he abandoned the attempt. (SX60 Part 005, 14:15).

Investigator Baeza even told Mr. Garrett, “It seems like you didn’t want to hurt

anybody.” (SX60 Part 007, 00:30). “Your intentions, like you told me, were not to

hurt them but to scare them to stop chasing you.” (SX60 Part 007, 00:45). She also

reminded him, however, that he could have killed the officers. (SX60 Part 007,

01:18). Mr Garrett admitted to using “dope” (methamphetamine) 30 minutes

before the chase. (SX60 Part 007, 01:55).




                                         25
      It is important to acknowledge that there was no evidence presented which

refuted or cast the slightest doubt on Mr. Garrett’s confessed motivations for his

actions. Furthermore, everything else he told Investigator Baeza on the video was

corroborated by the testimony of the various witnesses who took part in the chase

and the capture at the mall. There is no reason to doubt anything that Mr. Garrett

said regarding his mental state.

      He was obviously an experienced driver, and he knew how to shoot a gun.

Had he intended to kill or injure Deputy Crawford, he would have aimed lower,

and would likely have hit his mark. Instead, he utilized a technique learned from

his grandfather and intentionally aimed high. These shots were not the acts of a

man who intended to threaten Deputy Crawford with imminent bodily injury.

Rather, they were the acts of a man who, irrationally, wanted the deputies to stop

following him but without injuring them. He knew what he was doing, and for all

the harm he caused, he lacked the necessary intent to commit the crime for which

he was indicted and convicted.

Harm analysis.

      Legal sufficiency of the evidence invokes constitutional issues. Gollihar v.

State, 46 S.W.3d 243, 245-46 (Tex. Crim. App. 2001). If the record reveals

constitutional error that is subject to harmless error review, “the court of appeals

must reverse a judgment of conviction or punishment unless the court determines


                                         26
beyond a reasonable doubt that the error did not contribute to the conviction or

punishment.” TEX. R. APP. P. 44.2(a) (West 2015). The error complained of here

contributed to Mr. Garrett’s conviction. Indeed, Mr. Garrett could not have been

convicted, but for the error. “[T]he remedy for a finding of legally insufficient

evidence on appeal is acquittal.” Gollihar v. State, 46 S.W.3d at 246. Therefore,

the judgment of conviction should be reversed, and a judgment of acquittal should

be rendered.



                 Appellant’s Second Point of Error (Restated)

      The trial court erred when it overruled Mr. Garrett’s objection to the
      jury instruction containing a presumption suggesting that Mr. Garrett
      knew that Deputy Crawford was a public servant, because there was
      no evidence that the deputy was wearing a distinctive police uniform
      or badge. (RR 8, 125, 129).

      The jury charge submitted to the jury contained the following language: “If

D. Crawford was wearing a distinctive uniform or badge indicating his

employment as a peace officer, the defendant is presumed to have known that D.

Crawford was a peace officer. Therefore, if you believe from the evidence beyond

a reasonable doubt that D. Crawford, at the time of the assault, if any, was wearing

a distinctive uniform or badge indicating his employment as a peace officer, it is

presumed, and you may find, that the defendant knew that D. Crawford was a

peace officer. However, you are not bound to so find and even if you do so find


                                         27
that State must still prove beyond a reasonable doubt each and all of the elements

of the offense charged.” (CR, 90). This instruction generally tracks the language of

TEX. PENAL CODE § 22.02(c) (West 2011).

      During the charge conference, defense counsel objected to the presumption

language, because “there is no evidence from Crawford regarding what type of

uniform or badge, if any, he was wearing; and, therefore, this presumption that

goes to his clothing, it’s not proper and should not to be included in the Charge.”

(RR 8, 124-125). The trial court overruled the objection. (RR 8, 125, 129).

      Generally, aggravated assault is a felony of the second degree, but it

becomes a felony of the first degree it the assault is committed against a person

that the defendant knows is a public servant who is lawfully discharging an official

duty. TEX. PENAL CODE § 22.02(b)(2) (West 2011). To establish the more serious

offense, the State was required to prove that Mr. Garrett knew that Detective

Crawford was a public servant. Salazar v. State, 643 S.W.2d 953, 957 (Tex. Crim.

App. 1983). The defendant’s knowledge that the person assaulted was a public

servant is an element of the offense. Payne v. State, 596 S.W.2d 911, 913 (Tex.

Crim. App. 1980).

      The Section 22.02(c) presumption is a permissive presumption. Such a

presumption permits, but does not require, the jury to find the elemental fact – that

Mr. Garrett knew of Detective Crawford’s status as a public servant – upon proof


                                         28
of the predicate facts, but places no burden on Mr. Garrett to disprove the

elemental fact. Because this type of presumption does not alter the State’s burden

of proof, it is constitutional, provided that the connection between the predicate

fact and the elemental fact is rational. Ulster County Court v. Allen, 442 U.S. 140,

157 (1979); Willis v. State, 790 S.W.2d 307, 310 (Tex. Crim. App. 1990).

      Section 2.05 of the Texas Penal Code addresses legal presumptions. When

Texas law establishes a presumption with respect to any fact, “if there is sufficient

evidence of the facts that give rise to the presumption, the issue of the existence of

the presumed fact must be submitted to the jury, unless the court is satisfied that

the evidence as a whole clearly precludes a finding beyond a reasonable doubt of

the presumed fact ….” TEX. PENAL CODE § 2.05(a)(1) (West 2011). If the existence

of a presumed fact is submitted to the jury, Section 2.05(b) sets forth specific

language that must be submitted along with the presumption.

      The problem in the present case this that there is not “sufficient evidence of

the facts that give rise to the presumption.” There is no evidence that Deputy

Crawford was wearing a distinctive uniform or badge at the time when Mr.

Crawford fired at him. There certainly is evidence that Deputy Crawford was

driving a marked patrol vehicle, but this fact is not an elemental fact invoking the

presumption. It is argued here that the Legislature could have added the driving of

a marked police vehicle to the presumption had it intended this fact to be an


                                          29
elemental fact to support the presumption. However, he Legislature did not add

that scenario to the presumption, and the presumption in this case must fail for lack

of proof that Detective Crawford was wearing a police badge or uniform at the

relevant time.

Harm.

      In cases of jury charge error, the appellate court first will determine whether

error exists. If it does exist, the court determines whether sufficient harm was

caused by the error to require reversal. If error was properly preserved, reversal is

mandated as long as the error is not harmless. Hutch v. State, 922 S.W.2d 166,

170-71 (Tex. Crim. App. 1996) (citing Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985)). In this case, error was preserved because trial counsel

objected to the inclusion of the presumption in the charge, and was overruled by

the court. The error of the court in overruling the objection was certainly harmful,

in that it instructed the jury that it could presume an elemental fact based on

insufficient evidence to support that presumption. Mr. Garrett was convicted of a

felony of the first degree. His sentence of 34 years was well beyond the top of the

second degree felony range. Although he still might have been convicted of the

first degree felony, the presumptive language sealed the deal and made his

conviction inevitable. He was harmed by the fact that the jury was given the




                                         30
presumption, which did not apply to him. Mr. Garrett was harmed, and is therefore

entitled to a new trial.



                    Appellant’s Third Point of Error (Restated)

        The trial court erred when, in the punishment phase, it sustained the
        State’s relevance objections to questions to Mr. Garrett’s mother
        Laurie Lee, because the questions were helpful to the jury in
        determining appropriate punishment. (RR 9, 69-71).

        During the punishment phase of the trial, Mr. Garrett’s mother Laurie Lee

testified on her son’s behalf. Defense counsel asked her several questions to which

the State objected on relevance grounds. This led to some prickly interaction

between defense counsel and the trial court.

      Q.     Okay. When you think about the juror’s decision and, you know, what
they have to do, what goes through your mind?

        MS. MOY: Objection to relevance

      THE COURT:             Sustained.
(RR 9, 69)

*****       *****          *****

      Q.     (By Mr. Bunk) Having heard what you’ve heard this week, how does
it make you feel?

        MS. MOY: Objection to relevance.

        THE COURT:           Sustained.

        MR. BUNK:            Can we approach?


                                          31
      THE COURT:          You can approach.

      (Bench Conference.)

      MR. BUNK:           I’m sorry, but I absolutely have every right to ask her her
thoughts on this process and the punishment process. Why you’re not –

      THE COURT:          Her –

      MR. BUNK:           -- this is beyond me.

      THE COURT:          I’m sustaining the objection. You can sit down.

      (End of Bench Conference.)

      Q.     (By Mr. Bunk) I can’t ask you that’ ma’am so I’ll move on.

      MS. MOY: Objection to sidebar.

      THE COURT:        Counsel. I instructed you to watch your sidebar the other
day. Proceed. Ask your next question.

      MR. BUNK:           Yes, sir.

      Q.   (By Mr. Bunk) Do you understand why I can’t ask you any more
questions?

      THE COURT:          Counsel, ask a different question.

      Q.     (By Mr. Bunk) Would it surprise you that I can’t ask you –

      THE COURT:          Counsel, ask a different question.

      Q.     (By Mr. Bunk) Does it hurt you that I can’t ask you these question?

      MS. MOY: Objection, Your Honor.

      THE COURT:          Counsel.

      MR. BUNK:           Yes?

                                         32
      THE COURT:          Ask a relevant question.
(RR 9, 70 – 71).

      During his final argument to the jury on punishment, defense counsel

referenced the objections to the questions he was not permitted to ask, which

precipitated further objections by the State and cautionary instructions from the

court. (RR 9, 84).

Relevance at the punishment phase.

      An appellate court reviews a trial court’s order excluding evidence for abuse

of discretion. Torres v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2002). It will

not reverse an admissibility decision unless it fall outside the zone of reasonable

disagreement. Id.

      TEX. CODE CRIM. PROC. art. 37.07, § 3(a) (West 2006) governs the

admissibility of evidence at the punishment phase of a trial. Section 3(a)(1)

provides, in pertinent part: “[E]vidence may be offered by the state or the

defendant as to any matter the court deems relevant to sentencing ….” The court

has broad discretion in determining admissibility of punishment phase evidence.

Lamb v. State, 186 S.W.3d 136, 141 (Tex. App. – Houston [1st Dist.] 2005, no

pet.). Unlike at the guilt phase of a trial, “the question at punishment is not whether

the defendant had committed a crime, but instead what sentence should be

assessed.” Nicholas v. State, No. 04-07-00499-CR, 2008 Tex. App. LEXIS 5981 at

*5, 2008 WL 3057482 (Tex. App. – San Antonio Aug. 6, 2008, no pet.)(mem. op.,

                                          33
not designated for publication)(citing Ellison v. State, 201 S.W.3d 714, 718 (Tex.

Crim. App. 2006)). Our bifurcated system allows admission of evidence “critical to

an enlightened determination of punishment.” Id. “Generally, the jury is entitled to

have before it ‘all possibly relevant information about the individual defender

whose fate it must determine.’” Id. (citing Cooks v. State, 844 S.W.2d 697, 735

(Tex. Crim. App. 1992)). “Relevance in [the punishment] context is more a matter

of policy than an application of Rule of Evidence 401; it fundamentally consists of

what would be helpful to the jury in determining the appropriate punishment.”

Garcia v. State, 239 S.W.3d 862, 865 (Tex. App. – Houston [1st Dist.] 2007, pet.

ref’d).

          In the present case, it is unlikely that anyone was more familiar with Mr.

Garrett or his background than his mother. Her thoughts and feelings regarding

how her son should have been punished were relevant to his punishment. Because

no one on jury knew anything about Mr. Garrett besides the facts of his underlying

offense and – by that time – his criminal history, and because Ms. Lee had known

him for his entire life of 29 years (RR 9, 59), she had deep insights into his

character which would have been vital to the jury in making its determination of

how to punish him. Although she apparently had not been to prison, Ms. Lee had a

drug and alcohol history of her own. Happily, she had cleaned herself up and

stopped using nine years prior to the trial. (RR 9, 62). Because of all of this, Ms.


                                           34
Lee knew her son’s problems, and knew from experience what was necessary to

defeat the demons. Knowing her thoughts on her son’s very serious problems, both

legal and personal, would have assisted the jury as much – if not more – than the

other punishment evidence presented.

      The trial court abused its discretion when it excluded this evidence. This

Honorable Court should reverse the sentence in this case and remand the case for a

new sentencing trial. TEX. CODE CRIM. PROC. art. 44.29(b) (West 2006).




                            Conclusion and Prayer

      WHEREFORE, PREMISES CONSIDERED, the Appellant prays the Court

of Appeals to uphold the points of error, reverse the judgment of conviction and

render an order of acquittal (First Point of Error); reverse the judgment of

conviction and remand for a new trial (Second Point of Error); or reverse the

sentenced and remand for a new sentencing hearing (Third Point of Error).

                                       Respectfully submitted,


                                       /s/ Michael D. Robbins
                                       MICHAEL D. ROBBINS
                                       Assistant Public Defender
                                       Paul Elizondo Tower
                                       101 W. Nueva St., Suite 370
                                       San Antonio, Texas 78205
                                       (210) 335-0701
                                       FAX (210) 335-0707
                                         35
                                     mrobbins@bexar.org
                                     Bar No. 16984600
                                     ATTORNEY FOR APPELLANT




                    Word Count Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(1) & (i)(2)(B) (West 2015), the word

count, from the beginning of the Statement of Facts until, but excluding, the

signature block, is 7,809. The total word count is 9,690. The Appellate Public

Defender’s Office uses Microsoft Word 2010.

                                     /s/ Michael D. Robbins
                                     MICHAEL D. ROBBINS
                                     Assistant Public Defender



                             Certificate of Service

      I HEREBY CERTIFY that a true and correct copy of the above and
foregoing Brief For Appellant has emailed to the Bexar County District Attorney’s
Office, Appellate Division, Paul Elizondo Tower, 101 W. Nueva St., Suite 710,
San Antonio, Texas 78205, on November 9, 2015.


                                     /s/ Michael D. Robbins
                                     MICHAEL D. ROBBINS
                                     Assistant Public Defender




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