                                                                            ACCEPTED
                                                                       13-14-00742-CR
                                                       THIRTEENTH COURT OF APPEALS
                                                              CORPUS CHRISTI, TEXAS
                                                                 10/15/2015 4:47:19 PM
                                                                      Dorian E. Ramirez
                                                                                 CLERK

      Cause Nos. 13-14-00742-CR, 13-14-00743-CR
                   & 13-14-00744-CR
************************************************
                                              FILED IN
                                      13th COURT OF APPEALS
                  COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS
           THIRTEENTH DISTRICT OF TEXAS
                                      10/15/2015 4:47:19 PM
               CORPUS CHRISTI, TEXAS DORIAN E. RAMIREZ
                                               Clerk
************************************************

                   CHARLES DANE HILL,
                       Appellant

                            VS.

                   THE STATE OF TEXAS,
                         Appellee

************************************************
           On Appeal from Cause Nos. 13-11-9140,
                13-11-9158 & 13-11-9159
          th
 in the 24 Judicial District Court of Jackson County, Texas
************************************************

                   STATE’S REPLY BRIEF

************************************************
                        ROBERT E. BELL
                        District Attorney
                        State Bar Card No. 02086200
                        Jackson County Courthouse
                        115 West Main Street
                        Edna, Texas 77957

                              JIM VOLLERS
                              State Bar Card No. 20609000
                              2201 Westover Road
                              Austin, Texas 78703
ORAL ARGUMENT
  REQUESTED                   ATTORNEYS FOR THE STATE
                              i
IDENTITY OF PARTIES AND COUNSEL

1.   Robert E. Bell
     Criminal District Attorney, Jackson County
     State Bar Card No. 02086200
     Jackson County Courthouse
     115 West Main Street
     Edna, Texas 77957
     Email: ef_mitchell@yahoo.com

     Jim Vollers
     Attorney at Law
     State Bar Card No. 20609000
     2201 Westover Road
     Austin, Texas 78703
     Email: jimvollers@att.net
     Attorneys for the State

2.   Charles Dane Hill
     Appellant

3.   Hon. W. A. (Bill) White
     Attorney at Law
     P.O. Box 7422
     Victoria, Texas 77903
     Email: lawbill0994@att.net.
     Attorney for Appellant

4.   Honorable Juergen “Skipper” Koetter, District Judge
     24th Judicial District, Jackson County Courthouse
     115 West Main Street
     Edna, Texas 77957
     Email: koetter@cscd.net
     Trial Judge




                                   ii
                           TABLE OF CONTENTS

                                                                              PAGE

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . .               ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . .      v

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . .       2

APPELLANT’S ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . .           2

      APPELLANT’S ISSUE NO. ONE:
      THE TRIAL COURT ERRED BY DENYING
      APPELLANT’S REQUEST FOR JURY INSTRUCTION
      ON SELF-DEFENSE BECAUSE APPELLANT PLED
      “NOT GUILTY” WHEN TRIAL BEGAN.

      APPELLANT’S ISSUE NO. TWO:
      THE EVIDENCE IS INSUFFICIENT TO SHOW THAT
      APPELLANT KNEW JASON McCARRELL WAS A
      PUBLIC SERVANT WHEN SHOOTING AT HIM.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .     3

APPELLANT’S ISSUE NO. ONE (RESTATED). . . . . . . . . . . . . . .               7

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . .            7

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . .           9

APPELLANT’S ISSUE NO. TWO (RESTATED) . . . . . . . . . . . . . .                11

SUMMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . .             11

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . .            12
                                        iii
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   17

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . .           18

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . .              19




                                           iv
                            INDEX OF AUTHORITIES
CASES:                                                                                PAGE

Brooks v. State, 323 S.W.3d 893 (Tex.Crim.App. 2010) . . . .                              12

Calloway v. State, 43 S.W.2d 645 (Tex.Crim.App. 1988) . . .                                9

Clayton v. State, 235 S.W.3d 772 (Tex.Crim.App. 2007) . . . .12, 13

Ex parte Nailor, 149 S.W.3d 125 (Tex.Crim.App. 2004). . . . .                             10

Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007) . . . . . .                            12

Jackson v. Virginia, 443 U.S. 307 (1979) . . . . . . . . . . . . . . 12, 13

Kiffe v. State, 361 S.W.3d 104
      (Tex.App.-Houston [1st Dist.] 2012) . . . . . . . . . . . . . . . 12, 17

Miles v. State, 488 S.W.2d 790 (Tex.Crim.App. 1972) . . . . . .                            9

Moreno v. State, 341 S.W.2d 455 (Tex.Crim.App. 1960) . . . .                               9

O’Neal v. State, 491 S.W.2d 130 (Tex.Crim.App. 1973) . . . . .                             9

Parsons v. State, 271 S.W.2d 643 (Tex.Crim.App. 1954) . . . .                              9

Smith v. State, 475 S.W.2d 238 (Tex.Crim.App. 1971) . . . . .                              9

Venable v. State, 397 S.W.2d 231 (Tex.Crim.App. 1966),
    cert. den., 384 U.S.266, 86 S.Ct. 1477, L.Ed.2 525 . . . . .                           9

Williams v. State, 235 S.W.3d 742 (Tex.Crim.App. 2007) . . . .                            13


TEXAS RULES OF APPELLATE PROCEDURE:

Rule 44.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   10


                                               v
PUBLICATIONS:

5 C.J.S., Appeal and Error, § 1464(1), PP. 654-57 . . . . . . . . . .   9




                                    vi
      Cause Nos. 13-14-00742-CR, 13-14-00743-CR
                   & 13-14-00744-CR
************************************************
                  COURT OF APPEALS
           THIRTEENTH DISTRICT OF TEXAS
               CORPUS CHRISTI, TEXAS
************************************************

                        CHARLES DANE HILL,
                            Appellant

                                   VS.

                        THE STATE OF TEXAS,
                              Appellee

************************************************
          On Appeal from Cause Nos. 13-11-9140,
                13-11-9158 & 13-11-9159
          th
 in the 24 Judicial District Court of Jackson County, Texas
************************************************

                        STATE’S REPLY BRIEF

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

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COMES NOW, THE STATE OF TEXAS, Appellee herein, by

and through its Criminal District Attorney, and files this, its reply brief

in the above-styled cause, requesting that the judgment of the trial

court be in all things affirmed, and as grounds therefore would show

unto the Court the following:


                                    1
                    STATEMENT OF THE CASE

     After a jury trial upon appellant’s plea of not guilty, appellant

was found guilty of the offenses of aggravated assault on a public

servant with a deadly weapon in Cause No. 13-11-9140, Count 2;

aggravated assault with a deadly weapon in Cause No. 13-11-9158,

Count 1, Paragraphs 1, 2, and 3; and deadly conduct in Cause No.

13-11-9159. The jury assessed appellant’s punishment in Cause No.

13-11-9140 at 20 years confinement in the Institutional Division of

the Texas Department of Criminal Justice; in Cause No. 13-11-9158

at ten (10) years confinement in the Institutional Division of the

Texas Department of Criminal Justice; and in Cause No. 13-11-9159

at five (5) years confinement in the Institutional Division of the Texas

Department of Criminal Justice. The sentences all run concurrently.

                APPELLANT’S ISSUES PRESENTED

                  APPELLANT’S ISSUE NO. ONE

THE TRIAL COURT ERRED BY DENYING APPELLANT’S
REQUEST FOR JURY INSTRUCTION ON SELF-DEFENSE
BECAUSE APPELLANT PLED “NOT GUILTY” WHEN TRIAL
BEGAN.




                                   2
                  APPELLANT’S ISSUE NO. TWO

THE EVIDENCE IS INSUFFICIENT TO SHOW THAT APPELLANT
KNEW JASON McCARRELL WAS A PUBLIC SERVANT WHEN
SHOOTING AT HIM.

                      STATEMENT OF FACTS

     On October 5, 2013, appellant participated in various festivities

including a fishing tournament (R. Vol. 5, p. 124) and an outdoor

festivity in Victoria. During that time, he consumed beer (R. Vol. 5,

p. 127), vodka-soaked Gummy Bears (R. Vol. 5, p. 74), and LSD (R.

Vol. 5, pp. 208-210). In the evening, he ended up at the home of

Adam Twardowski, a neighbor (R. Vol. 5, pp. 136-141). While there,

appellant called a Twardowski child an ugly name and was told to

leave. Appellant went to his pickup truck, obtained a pistol and fired

shots at the house (R. Vol. 5, pp. 142-148).      Michael Cornwell, a

guest, attempted to take the pistol from appellant and ended up in a

struggle with him (R. Vol. 5, pp. 146, 147). The pistol was fired by

appellant near Cornwell’s head and the bullet passed through the

pickup roof (R. Vol. 5, pp. 55-57). While Cornwell was trying to take

the pistol, appellant inflicted a number of bites on Cornwell’s arm (R.

Vol. 5, p. 58).    Cornwell succeeded in getting the pistol when


                                  3
Twardowski intervened and struck appellant twice in the face with his

fist (R. Vol. 5, pp. 55, 56). Appellant was aware that the police were

being called and he cursed Cornwell for calling them (R. Vol. 5, p.

66). Appellant then drove off in his pickup toward his residence and

ended up running the pickup into the ditch near his driveway (R. Vol.

5, p. 183). The Hill residence was 1,228 feet from the Twardowski

residence and the distance from Twardowski’s driveway to the Hill

driveway was 1,435 feet (State’s Exhibit 8). Both of these residences

were located on County Road 313 East (State’s Exhibit 8).

      Valerie Twardowski, Adam’s wife, called 911 and reported what

had happened and asked for assistance (R. Vol. 5, p. 145). While

she was talking to 911, a shot was reported from the direction of the

Hill residence (R. Vol. 5, p. 148).

      Deputy Jason McCarrell, of the Jackson County Sheriff’s

Department, was dispatched to the scene (R. Vol. 4, p. 23). After

turning onto County Road 313 East, he continued past the Hill

residence and realized that he was on the wrong side of the

residence and turned and came back to the Twardowski residence

(R. Vol. 4, pp. 30, 31). He had been driving with his emergency


                                      4
lights on until he turned onto County Road 313, at which time he

turned them off (R. Vol. 4, p. 32).         When he arrived at the

Twardowski driveway, four adults came out of the house and talked

with him and gave him information about what had occurred (R. Vol.

4, p. 35).   As McCarrell finished talking to them, Deputy Carlos

Sertuche pulled in behind him (R. Vol. 4, p. 36).        McCarrell and

Sertuche then proceeded down the road toward the Hill residence

using thermal imagers to look for appellant (R. Vol. 4, pp. 38, 39).

As they proceeded down the road toward appellant’s driveway, both

deputies had their high-beam headlights on and their take-down

lights on (R. Vol. 4, pp. 43, 44). They located Hill’s pickup truck just

before the entry to the Hill residence driveway (R. Vol. 4, pp. 39, 40).

While on the way to Hill’s driveway, McCarrell had spotted a full-

grown man walking around the edge of the driveway to the east of

the house (R. Vol. 4, p. 40). He continued to watch the individual he

had seen, got out of his car and checked the wrecked pickup truck to

see if anybody was in it, and then he and Sertuche drove into the Hill

driveway toward the house (R. Vol. 4, pp. 40, 41).




                                   5
      As McCarrell proceeded down the driveway, he was able to see

an individual he believed to be Charles Hill standing in the front yard

holding a rifle (R. Vol. 4, p. 42). As soon as he saw this individual,

he stopped his car, turned his lights off and grabbed his rifle and got

out of the car (R. Vol. 4, pp. 42, 43). In driving from the Twardowski

residence all the way to the point that he stopped in the Hill

driveway, McCarrell had on his high-beam headlights and take-down

lights, which were white LED lights integrated into the light bar and

are very bright, brighter than just normal headlights (R. Vol. 4, p.

43). Sertuche was about 20 to 30 yards behind McCarrell and also

had his LED take-down lights on until they stopped (R. Vol. 4, p. 44).

The vehicles at the Twardowski residence did not have take-down

lights on them (R. Vol. 4, p. 44). When Sertuche stopped behind

McCarrell, he turned off all of his lights except his parking lights (R.

Vol. 4, pp. 44, 45). Using his thermal device and staying behind his

car for cover, McCarrell could see appellant pointing the rifle directly

at him or holding it in such a manner as he appeared to be trying to

load it or clear a jam (R. Vol. 4, pp. 45-51). McCarrell finally raised

up to see appellant again and sees that he is standing there with the


                                   6
rifle pointing directly at him again, he immediately drops down

behind the car and less than a half a second later hears appellant fire

(R. Vol. 4, p. 54). Being trained to move when fired at, McCarrell

moved and took cover behind the engine block and the front wheels

of the car, then looked up to find appellant still pointing the rifle

directly at him, so he fired three rounds from his rifle at appellant (R.

Vol. 4, p. 55). One of the shots struck appellant’s rifle, his hand,

fingers and arm. State’s Exhibit 82, the video recreation, reflects that

the trajectory of the bullet striking the rifle and appellant’s arm and

hand in which it did could only happen when the rifle was pointed

directly at the place from where the shot was fired. This and other

exhibits show reflective insignia on McCarrell’s vehicle showing that it

was a police car.

      After the shooting, Officers Sertuche and McCarrell were

leaving the scene in Sertuche’s car when Officer Merritt arrived.

Merritt drove past them and pulled up behind McCarrell’s car (R. Vol.

4, p. 181). When they could finally contact him, Merritt was told he

should leave because appellant had a night-sight device.          Merritt

chose to stay and felt that he was hidden well behind his car (R. Vol.


                                   7
4, p. 181). Merritt testified that from where he was located he could

see the whole front yard and could clearly see the Hill house. When

he heard groaning from the house and appellant finally came out of

the house and approached the cars. Merritt then turned his flashlight

on as appellant approached him. Appellant was cursing the police as

he approached (R. Vol. 4, pp. 181-195).          Appellant was finally

secured and then turned over to medics.

              APPELLANT’S ISSUE NO. ONE (RESTATED)

THE TRIAL COURT ERRED BY DENYING APPELLANT’S
REQUEST FOR JURY INSTRUCTION ON SELF-DEFENSE
BECAUSE APPELLANT PLED “NOT GUILTY” WHEN TRIAL
BEGAN.

                  SUMMARY OF THE ARGUMENT

      It appears that appellant misstates the record when he

indicates to this Court that the trial court denied appellant’s request

for a charge on self-defense merely because he pled “not guilty” at

the beginning of the trial. In reality the record shows that the court’s

ruling stated “The law is also clear that if you want to assert your

right to self-defense, you must first admit the elements of the offense

that has been charged. The defendant has pled not guilty to all of

the elements of the offense as charged and therefore has not
                                   8
qualified himself to claim the right to self-defense.” (R. Vol. 7, p. 9).

Therefore, appellant’s argument that the trial court denied him a

charge on the issue of self-defense merely because he pled not guilty

is both misleading and untrue.

      Also, even if that in actuality was what the trial judge did, it is

really immaterial if he ruled correctly in denying the charge on self-

defense because it wasn’t raised.      In this case, it simply was not

raised and the trial judge was correct.

                 ARGUMENT AND AUTHORITIES

      In Calloway v. State, 43 S.W.2d 645 (Tex.Crim.App. 1988),

the court pointed out:

      “Further, it is well-established that the mere fact that a
      correct ruling is given for the wrong reason will not result
      in a reversal. If the decision is correct on any theory of
      law applicable to the case it will not be disturbed. Miles v.
      State, 488 S.W.2d 790 (Tex.Cr.App.1972). See also
      Parsons v. State, 271 S.W.2d 643 (Tex.Cr.App.1954);
      Moreno v. State, 341 S.W.2d 455 (Tex.Cr.App.1960);
      Venable v. State, 397 S.W.2d 231 (Tex.Cr.App.1966),
      cert. den., 384 U.S. 266, 86 S.Ct. 1477, 16 L.Ed.2d 525;
      Smith v. State, 475 S.W.2d 238 (Tex.Cr.App.1971);
      O'Neal v. State, 491 S.W.2d 130 (Tex.Cr.App.1973); 5
      C.J.S., Appeal and Error, § 1464(1), PP. 654–57.” (43
      S.W.2 645, 651, 652).




                                   9
      Also, Rule 44.2, Texas Rules of Appellate Procedure, provides

that any error other than constitutional error which is a defect,

irregularity, or variance and does not affect substantial rights must

be disregarded. If the court ruled correctly, it certainly did not affect

any substantial rights even if he had simply ruled that a not guilty

plea barred a charge on self-defense.

      Appellant does not really set forth any facts, or refer to the

record to any evidence or testimony that raises the issue of self-

defense. It was aptly pointed more recently in Ex parte Nailor, 149

S.W.3d 125 (Tex.Crim.App. 2004), that “A defendant is entitled to an

instruction on the law of self-defense if there is some evidence he

intended to use force against another and he did use force, but he

did so only because he reasonably believed it was necessary to

prevent the other’s use of unlawful force.” (149 S.W.3d 125, 133).

In an interview with Ranger Bradley Freeman on October 6, 2013

appellant told the Ranger that when a car stopped in his driveway he

got his 270 and shot in the air.” That is clearly not evidence that he

used force against another only because he reasonably believed it

was necessary to prevent the other’s use of unlawful force, it was


                                   10
merely a denial of an element of the charge. Since appellant admits

that to raise the issue of self-defense appellant must admit to

committing the offense and then offer self-defense as justification

and completely fails to point to any place in this record where there

is any evidence that appellant acted in self-defense presents

absolutely nothing for review. Apparently appellant is simply relying

upon the fact that the way he interprets the judge’s ruling on the

issue of self-defense, which is only part of what the judge said,

constitutes error. The above-cited authorities clearly show that this

point of error has no merit and should be overruled.

          APPELLANT’S ISSUE NO. TWO (RESTATED)

THE EVIDENCE IS INSUFFICIENT TO SHOW THAT APPELLANT
KNEW JASON McCARRELL WAS A PUBLIC SERVANT WHEN
SHOOTING AT HIM.

                 SUMMARY OF THE ARGUMENT

     Where an individual: (1) engaged in conduct likely to bring

police intervention; (2) knew police had been called; (3) was in

position in his front yard to see two well-marked and well-illuminated

police cars come down a road and turn into his driveway; and (4)

saw the two cars drive toward his house and stop, there is ample


                                 11
evidence from which a rational jury could find, beyond a reasonable

doubt, that he knew the drivers of the cars were police officers.

Therefore, there is ample evidence from which a rational jury could

conclude that appellant knew he was firing at a police officer when

he fired his rifle.

                      ARGUMENT AND AUTHORITIES

        The proper standard for review of an issue of insufficiency of

the evidence is set forth in Brooks v. State, 323 S.W.3d 893

(Tex.Crim.App. 2010), where the court stated:

        “As the Court with final appellate jurisdiction in this State,
        we decide that the Jackson v. Virginia standard is the only
        standard that a reviewing court should apply in
        determining whether the evidence is sufficient to support
        each element of a criminal offense that the State is
        required to prove beyond a reasonable doubt.” (323
        S.W.3d 893, 913).

        Elaboration upon this standard is found in Kiffe v. State, 361

S.W.3d 104 (Tex.App.-Houston [1st Dist.] 2012), where that court

said:

        “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. Clayton v. State, 235
        S.W.3d 772, 778 (Tex.Crim.App.2007) (citing Hooper v.
        State, 214 S.W.3d 9, 16–17 (Tex.Crim.App.2007)). In
                                     12
     viewing the record, direct and circumstantial evidence are
     treated equally. Id. Circumstantial evidence is as
     probative as direct evidence in establishing the guilt of an
     actor, and circumstantial evidence alone can be sufficient
     to establish guilt. Id. 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, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at
     778. An appellate court also defers to the factfinder's
     evaluation of the credibility and weight of the evidence.
     See Williams, 235 S.W.3d at 750.” (361 S.W.3d 104,
     108).

     Since appellant engaged in conduct such as firing a pistol at a

house and almost shooting an individual in the head with a pistol and

then firing a rifle at their house from his residence nearby where a

normal person would know that law enforcement officers would

respond and investigate, and he was aware that they had been

called, he should certainly expect that law enforcement officers would

arrive in his driveway.   First of all, before the officers got there,

appellant was near his house with a rifle and ammunition at a place

near his house where he could observe two automobiles on the road

approaching his driveway and turning into the driveway with their

take-down lights and high-beam headlights on and with reflective

markings on both vehicles showing they were police vehicles,

especially since the second vehicle was approximately 20 yards
                                 13
behind the first and illuminating it with his lights.   Further, with

appellant aiming a rifle at the officer in the front vehicle, it is

perfectly obvious that he could see the officer in the front car even

when he turned his headlights and take-down lights off. Under those

conditions appellant would recognize these approaching vehicles as

law enforcement officers. It must be remembered that appellant was

sighted near his residence collecting his rifle and ammunition out in

front of his house, which was 135 yards from the roadway known as

313 East. In that position, and knowing law enforcement had been

called by reason of his actions, appellant in all probability saw

Deputy McCarrell passing by the Twardowski house and the Hill

residence on 313 East and turning around and driving back past it

again to the Twardowski house in an automobile that was plainly a

police vehicle with reflective markings on it, using it’s high-beam

headlights and it’s take-down lights. All of this took place in plain

view as shown by State’s Exhibit 4 which shows an open field

between the Hill residence and the Twardowski residence, with the

road being only 135 yards from appellant’s location. Shortly after

that Deputy McCarrell, followed by Deputy Sertuche, also in a police


                                 14
vehicle, left the Twardowski residence and drove down 313 East with

Sertuche following and illuminating McCarrell’s vehicle with his

headlights and his take-down lights for some 1,435 feet to the

driveway into the Hill residence. During this drive, Deputy McCarrell

could see appellant walking around in front of the Hill residence.

Then these two vehicles turned into the Hill driveway and travelled

some 93 yards where they stopped 83 yards from the Hill residence,

both officers having their bright headlights and take-down lights on

during this entire trip, all the while with McCarrell’s car was being

illuminated from behind and both cars having reflective markings on

them showing that they were police cars. When they stopped, both

automobiles were darkened by turning off their headlights and the

overhead lights because appellant had been spotted pointing a rifle

at McCarrell with such accuracy that McCarrell felt appellant must

have night-vision equipment. In addition to the illumination provided

by these two automobiles as they approached the Hill residence

coming down the driveway, there was a light at the corner of the

driveway where the driveway turned toward the house.




                                 15
     The circumstances that also should be considered are that

Officer David Merritt arrived at the scene after the shots were fired

and as Officers McCarrell and Sertuche were leaving. Merritt parked

his car behind McCarrell’s car and hid behind the car away from

someone whom he knew was shooting at officers.        Officer Merritt

heard groans coming from the direction he thought was in the house.

Shortly thereafter, appellant came out and approached the cars.

Merritt said that he could see appellant and see the house and then

when appellant got close he turned on his flashlight. It is obvious

that under those circumstances Merritt did not have his car lights on

or his emergency lights on.           However, when appellant was

interviewed by Ranger Freeman on October 6, 2013, he made

statements about knowing that Merritt was a police officer and he

was in a cop car that was white and like the cop car in Jackson

County. He stated, “But I knew it was a cop and that’s why I walked

out there to them.” Obviously, if he knew that Merritt’s car was a

cop car, he had to be able to see the car in front of it, therefore

knowing that McCarrell’s car was also a cop car.




                                 16
      When all of the evidence, including the circumstantial evidence,

is considered in this case, there is clearly sufficient evidence for a

reasonable finder of fact to conclude that appellant knew that the

automobile which he fired at was a police vehicle. Therefore, it is

respectfully submitted, that, as pointed out in Kiffe, supra, “the

necessary inferences are reasonably based upon the combined and

cumulative force of all the evidence when viewed in the light most

favorable to the verdict.”    The circumstantial and direct evidence

when considered in its totality is clearly sufficient to establish guilt

and when viewed in the light most favorable to the verdict is

sufficient to support each element of the offense charged against

appellant in this case, including his knowledge that he was firing at a

police officer.

                             CONCLUSION

      WHEREFORE, PREMISES CONSIDERED, it is respectfully

submitted that the evidence in this cause is sufficient and the

judgment of the trial court should be in all things affirmed.




                                   17
                                   Respectfully submitted,

                                   Robert E. Bell
                                   District Attorney
                                   State Bar Card No. 02086200
                                   Jackson County Courthouse
                                   115 W. Main Street
                                   Edna, Texas 77957


                                   /s/ Jim Vollers_______________
                                   Jim Vollers
                                   State Bar Card No. 20609000
                                   2201 Westover Road
                                   Austin, Texas 78703

                                   ATTORNEYS FOR THE STATE


                    CERTIFICATE OF SERVICE

     I hereby certify that on this the 15th day of October, 2015, a
true and correct copy of the foregoing was served electronically
through the electronic filing manager on the party listed below:

      Hon. W. A. (Bill) White, Attorney at Law, P.O. Box 7422,
Victoria, Texas 77903, Attorney for Appellant, at lawbill0994@att.net.

     Robert E. Bell, District Attorney, Jackson County Courthouse,
115 West Main Street, Edna, Texas 77957, Attorney for Appellee, at
ef_mitchell@yahoo.com.

      Honorable Juergen “Skipper” Koetter, District Judge, 24th
Judicial District Court, Jackson County Courthouse, 115 West Main
Street, Edna, Texas 77957, Trial Judge, at koetter@cscd.net.




                                 18
      If the email of the party or attorney to be served was not on
file with the electronic filing manager, the pleading was served by
email.

                                  /s/ Jim Vollers
                                  Jim Vollers

                CERTIFICATE OF COMPLIANCE

     I certify that this document contains 4,578 words (counting all
parts of the document).


                                  /s/ Jim Vollers________________
                                  Jim Vollers
                                  2201 Westover Rd.
                                  Austin, Texas 78703
                                  (512) 478-6846
                                  SBN 20609000
                                  JimVollers@att.net

                                  COUNSEL OF RECORD




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