                                                                                ACCEPTED
                                                                            04-15-00156-CR
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                        9/1/2015 1:50:38 PM
                                                                             KEITH HOTTLE
                                                                                     CLERK

                     NO. 04-15-00156-CR

                IN THE COURT OF APPEALS                FILED IN
                                                4th COURT OF APPEALS
                                                 SAN ANTONIO, TEXAS
                         FOR THE                09/01/15 1:50:38 PM
                                                  KEITH E. HOTTLE
         FOURTH COURT OF APPEALS          DISTRICT      Clerk


                        OF TEXAS

                  SAN ANTONIO, TEXAS


            JORGE ISAAC SANCHEZ-MARBAN,
                      Appellant

                            VS.

                  THE STATE OF TEXAS,
                        Appellee

                    Trial Cause No. 441416
           Appeal from County Court-at-Law No. 14
                     Bexar County, Texas
               Hon. Susan Skinner, Presiding

                 BRIEF FOR APPELLANT

                                  MICHAEL D. ROBBINS
                                  Assistant Public Defender
                                  Paul Elizondo Tower
                                  101 W. Nueva St., Suite 310
                                  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)    JORGE ISAAC SANCHEZ-MARBAN 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)    Jorge Isaac Sanchez-Marban was represented by TRAVIS KETNER,

1423 W. Martin St., San Antonio, Texas 78207.

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

District Attorney, and NICHOLAS A. KEMMY and JOE “TREY” MIMS,

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

Antonio, Texas 78205.

       The appellate attorneys are as follows:

      (1)    Jorge Isaac Sanchez-Marban 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. SUSAN SKINNER, County Court-at-Law No.

14, 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      .     .    .        .     .   .   .    .     .      v

A Note Regarding Record References .          .     .   .   .    .     .     vii

Statement Regarding Oral Argument .           .     .   .   .    .     .     vii

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

Issue Presented     .     .     .    .        .     .   .   .    .     .      2

                        APPELLANT’S POINT OF ERROR
      The evidence was legally insufficient to support the trial court’s
      finding that Jorge Isaac Sanchez-Marban committed the offense of
      assault – bodily injury.

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

Summary of the Argument         .    .        .     .   .   .    .     .     13

Argument     .      .     .     .    .        .     .   .   .    .     .     14

      Appellant’s Point of Error (Restated) .       .   .   .    .     .     14

Conclusion and Prayer     .     .    .        .     .   .   .    .     .     21

Word Count Certificate of Compliance          .     .   .   .    .     .     22

Certificate of Service.   .     .    .        .     .   .   .    .     .     22




                                         iv
                               Table of Authorities

                                                                        Page

                                    Constitution

U.S. CONST. amend. V     .      .     .        .   .    .   .   .   .      9

U.S. CONST. amend. XIV .        .     .        .   .    .   .   .   .     14

                                      Statutes

TEX. PENAL CODE § 1.07 (West 2011) .           .   .    .   .   .   .     14

TEX. PENAL CODE § 22.01 (West 2011)            .   .    .   .   .   . 1,14

TEX. PENAL CODE § 22.04 (West 2011)            .   .    .   .   .   .      5

                                       Rules

TEX. R. APP. P. 9.4 (West 2015) .     .        .   .    .   .   .   .     22

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

TEX. R. APP. P. 44.2 (West 2011)      .        .   .    .   .   .   .     20

                                       Cases

Barnes v. State, 876 S.W.2d 316 (Tex. Crim. App. 1994) .    .   .   .15,19

Byrd v. State, 336 S.W32d 242 (Tex. Crim. App. 2011) .      .   .   .     15

Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001) .     .   .   .     15

Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) .   .   .   .16,20

Jackson v. Virginia, 443 U.S. 307 (1979)       .   .    .   .   .   .14,15

Johnson v. State, 571 S.W.2d 170 (Tex. Crim. App. 1978)     .   .   .     15


                                           v
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) .     .   .   .   16

Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1997)   .   .   .15,19

Rankin v. State, 46 S.W.3d 899 (Tex. Crim. App. 2001) .     .   .   .   14

Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014) .    .   .   .   15




                                       vi
                      A Note Regarding Record References

      There are two volumes in the reporter’s record. In this brief, references to

the reporter’s record will be thus: (RR 1, ___). References to State’s Exhibits 4 and

5, which are videos and not part of the exhibits volume will be thus: (SX 5).

References to the main clerk’s record will be thus: (CR, ___).



                      Statement Regarding Oral Argument

      The issue 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.




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

         This brief is filed on behalf of Appellant, Jorge Isaac Sanchez-Marban, by

Michael D. Robbins, Assistant Public Defender.



                                   Statement of the Case

         Appellant Jorge Isaac Sanchez-Marban was charged by information with the

offense of assault – bodily injury. 1 (CR, 8). Appellant waived a jury (CR, 19; RR

1, 15-16), and he pleaded not guilty to the court. (RR 1, 17). Following evidence

and arguments of counsel, the trial court found Jorge Isaac Sanchez-Marban guilty

of assault – bodily injury. (RR 1, 158). Appellant elected that the court assess

punishment in case of conviction. (CR, 18). The court assessed a sentence of 11

months in jail, probated for 11 months, plus a fine of $100, restitution, and court

costs. (CR, 23-24; RR 1, 162). The court certified Mr. Sanchez-Marban’s right of

appeal. (CR, 25, 26). Appellant timely filed notice of appeal. (CR, 27, 20-30).

This appeal follows.




1
    A class-A misdemeanor, in violation of TEX. PENAL CODE §§ 22.01(a)(1) & (b) (West 2011).

                                                1
                         Issue Presented

                   Appellant’s Point of Error

The evidence was legally insufficient to support the trial court’s
finding that Jorge Isaac Sanchez-Marban committed the offense of
assault – bodily injury.




                                2
                                   Statement of Facts 2

A dispute between neighbors.

       The complainant, Diann Christian, resided at 231 Eureka Drive in San

Antonio from 2010 until October 2013. Her daughter was Shanna Lozano. (RR 1,

25-26). Ms. Christian lived in a trailer on the property, and her daughter lived in

the adjacent house. (RR 1, 26-27). Ms. Christian owned a van, which was in in

front of her trailer by the fence on the side of the property. On September 9, 2013,

she was checking the spark plugs of her van. She lifted the hood and got her tools.

(RR 1, 27). She was talking to her daughter while she worked. (RR 1, 27-28). Ms.

Christian’s son-in-law was inside the house. Her daughter’s brother-in-law was in

the back yard with her. (RR 1, 28).

       The events giving rise to this case occurred in the early afternoon. While Ms.

Christian worked on her sparkplugs, her neighbor’s dog, Silverado was curled up

by the fence on the neighbors’ side of the fence. (RR 1, 29). The neighbors were

Peter3 and Jorge Sanchez-Marban. The dog belonged to Peter. (RR 1, 29-30). Ms.

Christian was a foot and a half from the fence. (RR 1, 30). She looked up from

working on her motor and saw Mr. Sanchez-Marban pouring a bottle of water on

the dog. She and her daughter looked at each other. Ms. Christian heard a bang and


2
  This brief will present the testimony as given at trial. Appellant does not concede that the
testimony of the State’s two witnesses is true.
3
  Peter’s last name does not appear in the record.

                                              3
looked up. She saw Mr. Sanchez-Marban standing with a tree branch. He was on

his side of the fence.4 (RR 1, 31).

       Ms. Christian heard something slam the fence. She turned around. As she

did, Mr. Sanchez-Marban hit her in the head with the branch. She grabbed her head

and he pushed her backwards. (RR 1, 32). Mr. Sanchez-Marban was still on his

side of the fence. Ms. Christian fell backwards. Her daughter called an ambulance,

which came and took her to the hospital. (RR 1, 32-33). Mr. Sanchez-Marban hit

Ms. Christian twice. The first strike was to her head. Then he pushed her on the

chest with the branch. She had closed her eyes, but she saw the branch as she fell.

Ms. Christian fell in front of her trailer and landed on some bricks. (RR 1, 33). Her

upper back struck the trailer hitch. She felt pain. Ms. Christian had turned and was

facing Mr. Sanchez-Marban, and she saw him holding the branch. (RR 1, 34).

       Ms. Christian was not sure how far over the fence the branch extended. Mr.

Sanchez-Marban did not say anything. He had a smile on his face. Ms. Christian

did not know why he struck her. They did not have any prior disagreements. She

thought they were friends. (RR 1, 35). She had previously taken him shopping and

on a job interview. (RR 1, 35-36). The day before the incident, Mr. Sanchez-

Marban soaked Ms. Christian with water from his hose. (RR 1, 36). The following


4
  As may be seen in several of the photos in SX4, as well as the videos in SX5, it was a chain-
link fence perhaps four feet high. Ms. Christian described it as being a little over waist high. (RR
1, 54).

                                                 4
day, Ms. Christian and her daughter were in their yard smoking. Mr. Sanchez-

Marban was standing in his yard wearing shorts and tennis shoes. He had a 9 x 12

rug wrapped around his shoulders. He came running across the yard, took the rug

off, and threw it across the fence. The rug hit Ms. Christian and her daughter,

knocking them into the trailer. (RR 1, 37).

       Diann Christian was disabled.5 (RR 1, 49). She had fibromyalgia and

emphysema, although she continued to smoke. (RR 1, 50). She and her daughter

were evicted from their residence on Eureka Drive for being late with the rent, and

they resided on U.S. Highway 181 at the time of the trial. (RR 1, 52). Ms. Christian

was a widow. Her son-in-law’s name was Gilberto. She could not recall whether

Mr. Sanchez-Marban’s arm went over the fence, and his body was on his own side

of the fence. (RR 1, 53). Ms. Christian was standing in front of Mr. Sanchez-

Marban during the incident. The first thing she knew, the branch hit her in the

head. She did not know whether Mr. Sanchez-Marban swung it. She was not

expecting it. (RR 1, 58). Ms. Christian fell backwards when the branch hit her in

the chest. (RR 1, 59).

       Shanna Romero Lozano was Diann Christian’s daughter. (RR 1, 72). She

and her mother were neighbors of Mr. Sanchez-Marban for four years. (RR 1, 73).



5
 Luckily, she was not disabled to the extent that the State could file felony charges of injury to a
disabled individual under TEX. PENAL CODE § 22.04(a)(3) (West 2011).

                                                 5
They were on friendly terms until the incident in question, but there were changes

in his behavior even prior to that. He watered his yard at odd hours, and began to

hose off everything, including buildings and his car. (RR 1, 74). He started blaring

music at 6:00 a.m. (RR 1, 74-75). He began leaving wine and drink bottles in the

trees and by the fence. Ms. Lozano made a series of videos recordings of Mr.

Sanchez-Marban on her cell phone. (RR 1, 75; SX5). The videos were taken from

her property. (RR 1, 76). Mr. Sanchez-Marban was on his own property. The

police were called several days in a row. (RR 1, 77).

      The videos were not made on the day of the assault. They were made the day

Mr. Sanchez-Marban sprayed Ms. Christian with his hose. Mr. Sanchez-Marban

gave the police a hard time. He told the officers that he did not want them there. He

touched the police car and was told not to do so. (RR 1, 78). The video shows Mr.

Sanchez-Marban and another neighbor’s property, watering everything. (RR 1, 80-

81). Mr. Sanchez-Marban told the police that he had previously called them

regarding the complainant’s family. According to Ms. Lozano, this was true, but it

was based on what Ms. Lozano termed a “fiction.” (RR 1, 83).

      Ms. Lozano testified about the day her mother was assaulted. She recalled

that her neighbor’s dog, who had seizures, squealed loudly when Mr. Sanchez-

Marban poured water on him. (RR 1, 88-89). Ms. Lozano and her mother saw Mr.




                                          6
Sanchez-Marban approach the dog, but they ignored him. After that, things calmed

down for a few minutes, until Mr. Sanchez-Marban went and got the tree branch.

(RR 1, 90). He hit the fence with the branch. Ms. Christian, who was closer to the

fence than her daughter, moved sideways a couple of feet. (RR 1, 91). Ms. Lozano

considered Mr. Sanchez-Marban’s behavior to be an act of aggression toward her

mother. He took the branch in a swooping motion and hit her on the side of the

head. (RR 1, 92).

      Ms. Christian lost consciousness after being hit. When she came to, she was

disoriented and could barely speak. Ms. Lozano did not say anything to Mr.

Sanchez-Marban after the assault. (RR 1, 93). He was smiling when he assaulted

Ms. Christian. (RR 1, 94). The branch was perhaps seven feet long and was more

like a log than a branch. (RR 1, 97). Ms. Christian had a couple of fractured ribs

and was in extreme pain. (RR 1, 98). It took a long time for Ms. Christian to heal.

She had pre-existing deteriorating disc disease. (RR 1, 99).

      During the subsequent incident with the rug, Ms. Lozano and her mother

were outside drinking coffee. Mr. Sanchez-Marban came around the corner. (RR 1,

100). Two ladies who lived on the other side of Mr. Sanchez-Marban were

standing there. (RR 1, 100 – 101). Ms. Lozano helped her mother down the stairs,

because she was still sore from the branch attack. Mr. Sanchez-Marban was

standing in the middle of the yard. He had put on the rug like a Superman cape. It


                                          7
was a thick rug with tassels on the end. (RR 1, 101). Ms. Lozano had placed two

rugs of her own on the fence to give her and her mother some privacy. Mr.

Sanchez-Marban came over and tossed the rug he was wearing. He then took Ms.

Lozano’s two rugs off the fence and tossed them. Ms. Christian again fell to the

ground. (RR 1, 102).

      Ms. Lozano and her mother were in the same area where the branch incident

happened, because they did not think Mr. Sanchez-Marban would do anything like

it again. (RR 1, 103). Even after that, there was a third incident. They came home

one day and found a big mound of wood piled up against the fence with a cigarette

lighter beside it. Ms. Lozano and her mother did not call the police on that one. But

they started having their coffee after that on the other side of her mother’s trailer.

(RR1, 104). Her mother’s hospital stay cost somewhere in the vicinity of $9,500 or

$9,600, but her co-pay was less than $200. (RR 1, 105). Ms. Lozano and her

mother moved the following month. (RR 1, 106).

      The entire incident happened so fast that Ms. Lozano could not react and

assist her mother. (RR 1, 109). When she and her mother moved away was a

combined eviction and a move by choice. (RR 1, 122). She felt that the eviction

had something to do with the incident, “but we can’t prove it.” Mr. Sanchez-

Marban is gay, and the landlord to both properties is also gay. The landlord




                                          8
permitted Mr. Sanchez-Marban to return to the property after having been away

from his home. (RR 1, 123).

      The landlord knew what happened and he told Ms. Sanchez and Ms.

Christian that they did the right thing when they called the police. Ms. Lozano

believed that it was possible that that landlord and Mr. Sanchez-Marban had an

intimate relationship. (RR 1, 124). However, she did not really think that they had

such a relationship. The eviction did happen all of a sudden, and Ms. Lozano

remained angry about it. (RR 1, 125).

Mr. Sanchez-Marban testifies.

      Jorge Sanchez-Marban waived his Fifth Amendment rights and testified in

his own behalf. Mr. Sanchez-Marban continued to reside at 227 Eureka Drive. (RR

1, 129). He had resided at that address since the beginning of 2010. Ms. Christian

and Ms. Lozano moved next door to him at the end of 2010. (RR 1, 130). They

were making up the whole story, and perhaps looking for money. (RR 1, 130-131).

Mr. Sanchez-Marban had absolutely no contact with either of them on the day in

question. He did not strike them with his fist or a tree branch. (RR 1, 131). Because

of the layout of the yards, they could see into each other’s back yards. (RR 1, 131-

132). There was a pile of wood in Mr. Sanchez-Marban’s yard, but he did not take

any of that wood to strike Ms. Christian. Ms. Christian pointed a gun at him during

an earlier incident, and he tried to avoid her. (RR 1, 132). After the alleged


                                          9
incident, Mr. Sanchez-Marban had no contact with either of the ladies, in any form.

(RR 1, 132-133).

         The video, SX5, shows Mr. Sanchez-Marban watering the lawn of the lady

across the street from him. He did so at her request. She also rented from the same

landlord. Mr. Sanchez-Marban is seen speaking to the police officer in the video.

He spoke to the police because they were parked right outside his driveway. He

offered any assistance he could give. He did not know why they were there. (RR 1,

133). He did not see Ms. Christian fall that day, but he knew she had a lot of health

issues. Mr. Sanchez-Marban was a good friend of Ms. Christian’s son-in-law,

Gilberto or Roberto.6 The week prior to the alleged assault, the son-in-law gave

him a red thong as a gift, which surprised him. (RR 1, 134). The son-in-law said he

would like to see Mr. Sanchez-Marban wearing it. The son-in-law and his wife,

Ms. Lozano had a promiscuous relationship, because she was a table dancer. Mr.

Sanchez-Marban made a police report on his neighbors on September 7, 2013. (RR

1, 135).

         Mr. Sanchez-Marban was a citizen of Spain and Mexico, but not of the

United States. He is a permanent U.S. resident. He was in charge of keeping his

yard in good shape, and a lot of people really liked his yard. (RR 1, 136). He

sprayed water on his house to remove mold. He was drinking water or tea in the


6
    According to Ms. Christian, his name was Gilberto. (RR 1, 53, 65).

                                                 10
video. (RR 1, 137). He was not wearing a shirt in an attempt to show that he was

not carrying a weapon, after the neighbors pointed a gun at him. In addition, it was

still hot when the video was made in September. (RR 1, 138). He did not spray Ms.

Christian with water. She made that up. (RR 1, 139). Mr. Sanchez-Marban was

always careful not to spray his neighbor. The filed a police report the prior

weekend because Ms. Christian pointed a gun at him. (RR 1, 140).

      He was inside his house when the alleged assault occurred. He did not go out

until the police arrived. The part of the video showing him with the mailman

depicted him getting his mail. (RR 1, 141). Mr. Sanchez-Marban was not aware

that Ms. Christian had fallen until his attorney told him, presumably after the case

was filed. The only argument he had with Ms. Christian was on the previous

Sunday. (RR 1, 142). The record is not clear about the timeline, but Ms. Christian

had sprayed him with pepper spray. (RR 1, 143). The pepper spray incident was

the subject of a different police report than the gun incident. (RR 1, 145).

Conviction and punishment,

      Following argument of counsel, the trial convicted Jorge Isaac Sanchez-

Marban of assault – bodily injury. (RR 1, 158). At the brief sentencing hearing,

the trial court sentenced Mr. Sanchez-Marban to 11 months in jail, probated for 11

months, plus a $100 fine, restitution, and court costs. (CR, 23-24; RR 1, 162). The

trial court certified that this was not a plea bargained case and that Appellant has


                                          11
the right to appeal. (CR, 25, 26). Both Ms. Sanchez-Marban and his attorney filed

timely notices of appeal. (CR, 27, 29-30). The trial court appointed the Bexar

County Public Defender’s Office to represent Mr. Sanchez-Marban on appeal.

(CR, 31). This appeal follows.




                                       12
                             Summary of the Argument

      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 Jorge Isaac Sanchez-Marban

assaulted Diann Christian.




                                          13
                                    Argument

                     Appellant’s Point of Error (Restated)

      The evidence was legally insufficient to support the trial court’s
      finding that Jorge Isaac Sanchez-Marban committed the offense of
      assault – bodily injury.

      An appellate court must always address challenges to the legal sufficiency of

the evidence. Such a claim need not be preserved for review at the trial level, and

may be raised for the first time on appeal. Rankin v. State, 46 S.W.3d 899, 901

(Tex. Crim. App. 2001). Therefore, this Point of Error is properly before this

Honorable Court.

      Mr. Sanchez-Marban was charged by information with the offense assault –

bodily injury. (CR, 8-9). As charged in this case, a person commits the offense of

assault – bodily injury if he intentionally, knowingly, or recklessly causes bodily

injury to another. TEX. PENAL CODE § 22.01(a)(1) (West 2011). “Bodily injury”

means physical pain, illness, or any impairment of physical condition. TEX. PENAL

CODE § 1.07(a)(8) (West 2011).

      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


                                        14
(1979); Wilson v. State, 448 S.W.3d 418, 425 (Tex. Crim. App. 2014). 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 essential elements of the

offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Byrd v. State, 336

S.W.3d 242, 246 (Tex. Crim. App. 2011). The appellate court will assess the

evidence in the light most favorable to the State. Wilson, 448 S.W.3d at 425. The

reviewing court will uphold the verdict unless a rational factfinder must have had a

reasonable doubt with respect to any of the essential elements of the offense. Id.

The appellate court will consider all evidence admitted, whether proper or

improper. “Every fact need not point directly or independently to the defendant’s

guilt [citation omitted]. A conclusion of guilt can rest on the combined and

cumulative force of all incriminating circumstances.” Conner v. State, 67 S.W.3d

192, 197 (Tex. Crim. App. 2001). The jury is the exclusive judge of the facts, the

credibility of the witnesses, and the weight to be given to their testimony. Barnes v.

State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). This rule also applies to

bench trials like the one here on appeal. Johnson v. State, 571 S.W.2d 170, 173

(Tex. Crim. App. 1978). However, the appellate court does have the duty “to

position itself as a final due process safeguard ensuring only the rationality of the

factfinder.” Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim. App. 1995).




                                          15
       Legal sufficiency of the evidence is measured against the elements of the

offense as defined by a hypothetically correct jury charge, one that “accurately sets

out the law, is authorized by the indictment, 7 does not necessarily increase the

State’s burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.”

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The charge should

not merely quote the elements of the offense listed in the statute, but should list the

statutory elements “as modified by the charging instrument.” Gollihar v. State, 46

S.W.3d 243, 254 (Tex. Crim. App. 2001). “A hypothetically correct charge has its

basis in the indictment allegations.” Id. at 255.

Application.

       In this case, no rational factfinder could have found that Mr. Sanchez-

Marban assaulted Ms. Christian. The information alleged that he struck her with a

tree branch (RR 1, 8), thus defining the offense and limiting the conviction to proof

of that alone. Thus, the rug incident the following day is irrelevant to this case.

The key piece of evidence in this case is State’s Exhibit 5, a series of videos (with

audio tracks) made by Ms. Lozano on her cell phone. The variance between her

testimony and the truths told by the video are astounding. That will be discussed



7
  Malik obviously applies to misdemeanor cases tried on an information like the current case,
inasmuch as Malik was itself a misdemeanor case. Malik, 953 S.W.2d at 234.

                                             16
later, but there must first be a discussion of Ms. Christian’s testimony.

      Her testimony indicates that she did not observe very much. This is

essential. Ms. Christian did not actually see what she described to the trial court.

Her eyes were closed, and the only thing she actually saw was the branch, as she

fell. (RR 1, 33). She did not see the branch strike her. She did not know, even at

the time of the trial, whether Mr. Sanchez-Marban actually swung the branch. The

best she could say was that she saw him, smiling and holding the branch, but she

did not know whether or not he actually swung it at her. She concluded that the

tree branch struck her head in the first instance. (RR 1, 58). She said she felt the

tree branch hit her chest after that, and she fell backwards. (RR 1, 59). In addition,

Ms. Christian was disabled. (RR 1, 49). Among the myriad of ailments that she

suffered was deteriorating disc disease of the spine. (RR 1, 49-50). This in and of

itself could explain the fall that she took. In sum, the complainant’s testimony was

so lacking in credibility that no rational factfinder could have given it credit.

      When the testimony of Ms. Lozano is factored in, and contrasted with her

spontaneous comments recorded on her phone, the conclusion that the evidence

was legally insufficient becomes inescapable. Ms. Lozano’s comments on the

recording were made soon after the events in question. They were unvarnished and

not intended for judicial scrutiny. And, because of that, they are more believable

than her sworn testimony. Ms. Lozano told the court she was sad and angry at the


                                           17
time. (RR 1, 103). She sounds more vindictive than sad and angry on the

recording.

      Ms. Lozano’s real motivation was probably an attempt to cover up the fact

that she assaulted Mr. Sanchez-Marban with pepper spray on the Sunday before the

alleged tree branch assault on Ms. Christian. (RR 1, 142-143, 145). During the

video, two police officers are seen talking to Mr. Sanchez-Marban down the

driveway from Ms. Lozano’s position. Mr. Sanchez-Marban apparently told the

officers about the pepper spray incident, and Ms. Lozano apparently overheard it.

Her comment, recorded by her on her own phone, was: “Oh, he [unintelligible]

pepper spray. There’s no evidence. He can’t prove it. It doesn’t matter. I’m not

going to admit to it.” (SX5, 0:47-1:00). A few seconds later, she said: “I’m not

going to admit to it. I’m not going to admit to [unintelligible]. I’m not going to

admit to it. I’m not going to [unintelligible].” (SX5, 1:14 – 1:25).

      These statements were spontaneous. They were made much nearer to the

events in question than her trial testimony. They were obviously not intended for

public consumption, especially for judicial, consumption. In sum, they have all the

indicia of being true. They lend credence to Mr. Sanchez-Marban’s allegation that

Ms. Lozano was an aggressor against him, and they show a cover up. They speak

eloquently to her motivation to lie in court about what she called a “fiction.” (RR




                                          18
1, 83). After being confronted with these recorded statements, no rational

factfinder would have believed this witness.

      And, there is more. There appears to be some sort of sexual undercurrent to

this case. Mr. Sanchez-Marban was openly gay. (RR 1, 135). The landlord for both

houses was also gay. (RR 1, 123). Ms. Lozano denied having and prejudice against

gay people (RR 1, 119), and she might have been telling the truth when she said so.

However, she was still a bit uncomfortable about it, perhaps because her husband

gave Mr. Sanchez-Marban a piece of intimate underwear as a gift, as said that he

would like to see Mr. Sanchez-Marban model it. (RR 1, 135-135). This may be the

reason why, when Mr. Sanchez-Marban approached the letter carrier on the video,

Ms. Lozano said: “Oh, he’s talking to the mailman. He wanna fuck the mailman

too.” (SX5, 2:51 – 2:54). Ms. Lozano denied she said such a thing (RR 1, 120),

but it is clear on the recording that she did.

      All of this shows a string bias against Mr. Sanchez-Marban. The finder of

fact at the trial resolves issues of credibility. Barnes, 876 S.W.2d at 321. However,

when no rational factfinder could have found the elements of the offense, the

appellate court must assure that the decision is rational. Matamoros, 901 S.W.2d

474. In this case, no rational trier of fact could have found Mr. Sanchez-Marban

guilty.




                                           19
Harm analysis.

      Legal sufficiency of the evidence invokes constitutional issues. Gollihar, 46

S.W.3d at 245-46. 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 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. Sanchez-Marban’s

conviction. The testimony of one – or both – of the eyewitnesses was so irrational

as to cast a shadow on the propriety of the conviction. “[T]he remedy for a finding

of legally insufficient evidence on appeal is acquittal.” Gollihar, 46 S.W.3d at

246. Therefore, the judgment of conviction should be reversed, and a judgment of

acquittal should be rendered.




                                        20
                                Conclusion and Prayer

      WHEREFORE, PREMISES CONSIDERED, the Appellant prays the Court

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

render an order of acquittal.

                                       Respectfully submitted,


                                       /s/ Michael D. Robbins
                                       MICHAEL D. ROBBINS
                                       Assistant Public Defender
                                       Paul Elizondo Tower
                                       101 W. Nueva St., Suite 310
                                       San Antonio, Texas 78205
                                       (210) 335-0701
                                       FAX (210) 335-0707
                                       mrobbins@bexar.org
                                       Bar No. 16984600
                                       ATTORNEY FOR APPELLANT




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                     Word Count Certificate of Compliance

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

certify that the word count, from the beginning of the Statement of Facts until, but

excluding, the signature block, is 4,174. The total word count is 5,418. 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 370,
San Antonio, Texas 78205, on September 1, 2015.


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




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