                                                                                ACCEPTED
                                                                            06-14-00086-CR
                                                                 SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                       6/15/2015 1:32:16 PM
                                                                           DEBBIE AUTREY
                                                                                     CLERK


               IN THE COURT OF APPEALS FOR THE
            SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                           FILED IN
                                                    6th COURT OF APPEALS
                                                      TEXARKANA, TEXAS
MARK ANTHONY YOUNG                                  6/15/2015 1:32:16 PM
   APPELLANT                  §                         DEBBIE AUTREY
                              §                             Clerk
    v.                        §      Nos.    06-14-00086-CR
                              §
THE STATE OF TEXAS,           §
   APPELLEE                   §



                        STATE'S BRIEF


           ON APPEAL FROM THE 354th DISTRICT COURT
                      HUNT COUNTY, TEXAS
               TRIAL COURT CAUSE NUMBER 29,236
    THE HONORABLE RICHARD A. BEACOM, JR., JUDGE PRESIDING


                                  NOBLE D. WALKER, JR.
                                  District Attorney
                                  Hunt County, Texas


                                  STEVEN LILLEY
                                  Assistant District Attorney
                                  P.O. Box 441
                                  4th Floor Hunt County Courthouse
                                  Greenville, TX      75403
                                  (903) 408-4180
                                  FAX (903) 408-4296
                                  State Bar No. 24046293
                                         TABLE OF CONTENTS


TABLE OF CONTENTS ........................................................................................ 2


INDEX OF AUTHORITIES .................................................................................... 3


SUMMARY OF THE STATE'S ARGUMENT ........................................................ S


ARUGUMENT ........................................................................................................6


PRAYER ..............................................................................................................11


CERTIFICATE OF SERVICE ..............................................................................11


CERTIFICATE OF COMPLIANCE. .....................................................................12




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                               INDEX OF AUTHORITIES
CASES
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1994) ....................... 6
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1183 (1963) ....................................... 8
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979) .................................. 9


Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002) ....................................... 7
Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004) .................................. 9
Harm v. State, 183 S.W.3d 403 (Tex. Crim. App. 2006) ..................................... 8
Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) ................................. 6-7
Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007) ................................ 9




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                     IN THE COURT OF APPEALS FOR THE
                 SIXTH DISTRICT OF TEXAS AT TEXARKANA




MARK ANTHONY YOUNG
    APPELLANT                             §
                                          §
      v.                                  §      No. 06-14-00086-CR
                                          §
THE STATE OF TEXAS,                       §
    APPELLEE                              §




                                  STATE'S BRIEF




TO THE HONORABLE COURT OF APPEALS:


NOW COMES the STATE OF TEXAS, Appellee, in this appeal from Cause No.
29,236 in the 354th Judicial District Court in and for Hunt County, Texas,
Honorable Judge Richard A. Beacom, Jr., Presiding, now before the Sixth District
Court of Appeals, and respectfully submits this its brief to the Sixth District Court
of Appeals in support of the judgment of conviction and sentence in the court
below.




4
                            SUMMARY OF ARGUMENT


      In his first point of error, Appellant claims that his trial counsel provided

ineffective assistance of counsel by failing to fully review surveillance video.

However, Appellant only assumes that his counsel did not review the video and

makes no showing that trial counsel did not do so. Such a showing would be a

threshold requirement under Strickland v. Washington. Therefore, Appellant's

first point of error should be overruled.

      In his second point of error, Appellant complains that the State committed

a violation under Brady v. Maryland by not showing the trier of fact the entirety of

the surveillance video which he claims would affirmatively show that another

person committed the robbery. Appellant does not claim, however, that the State

kept any portion of the video in question from the Defense during the discovery

process. Therefore, his reliance on Brady v. Maryland is misplaced and

Appellant's second point of error should be overruled.

      In his third and fourth points of error, Appellant jointly alleges that he is

actually innocent and that there is legally insufficient evidence to support his

conviction. The State produced evidence in the form of testimony, documents

and a photo line-up to show the court that Appellant was the person who

committed the offense of robbery. The evidence produced was more than ample

to support the conviction under the well known standard of Jackson v. Virginia.

Therefore these points of error should also be overruled.


5
                                    ARGUMENT


      The State has elected to file this brief in response to Appellant's filing of his

pro se Response to Anders Brief. The State will touch on each point of error

propounded by Appellant, though the issues presented may not, in the State's

estimation, require a lengthy detailed response. If this Court desires further

briefing on a particular issue, we will provide a response as quickly as possible.



                                           I.
       DID APPELLANT'S TRIAL ATTORNEY PROVIDE INEFFECTIVE
                          ASSISTANCE OF COUNSEL?


      The first issue raised by Appellant is whether his trial attorney provided

ineffective assistance of counsel. A trial attorney will only be found ineffective if

his performance is found deficient under the well known Strickland Test. The

Strickland test requires that a defendant show on appeal that trial counsel's

conduct fell below an objective standard of reasonableness and that but for the

deficiencies of counsel, there is a reasonable probability that the result of the trial

would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 8 L.Ed. 674 (1994).

      The Texas Court of Criminal Appeals has repeatedly stated that a direct

appeal is not typically the appropriate avenue to urge a claim of ineffective

assistance of counsel. See e.g. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.



6
App. 2011 ). A claim of ineffective assistance of counsel must therefore be firmly

footed within the record. Bone v. State, 77 S.W.3d 828, 836-37 (Tex. Grim. App.

2002). Without a clear record of patently unreasonable choices and tactics by

defense counsel, the appellate court is simply not in a position to presume that

counsel acted unreasonably. "Appellate review of defense counsel's

representation is highly deferential and presumes that counsel's actions fell

within the wide range of reasonable and professional assistance." .KL_ at 833.

      Appellant alleges that his trial counsel did not fully investigate or review the

surveillance video introduced into evidence as State's Exhibit 1. Appellant

alleges that if his counsel had fully investigated this video, he would have seen

that Appellant was clearly not the person who committed the aggravated robbery.

However, Appellant makes not factual showing through the record, affidavit or

otherwise that his trial counsel did not review or investigate the video as he

alleges. Without such evidence or support in the record, Appellant's claim of

ineffective assistance can not stand under appellate scrutiny. Therefore,

Appellant's claim of ineffective assistance of counsel should be overruled.



                                          II.
             DID THE STATE WITHHOLD "BRADY" MATERIAL?


      In his second point of error, Appellant alleges that the State of Texas

withheld Brady evidence in the form of stopping the playing of the surveillance

video footage before a certain portion that Appellant claims shows his innocence.

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Under Brady, the State is required to disclose to the defense any evidence

favorable to the accused within its possession. See generally, Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1183 (1963). So long as the State has not

suppressed evidence favorable to the accused, there is no Brady violation. Harm

v. State, 183 S.W.3d 403, 406 (Tex. Grim. App. 2006).

      State's Exhibit 1 contained the surveillance footage of which Appellant

complains. However, Appellant does not claim that the State withheld from his

trial counsel any portion of the surveillance footage, only that the State did not

play certain parts of Exhibit 1 for the trier of fact. Even if this were an accurate

recounting of what occurred during the bench trial, which the State does not

concede, such a fact scenario is not within the purview of Brady. Therefore,

Appellant second point of error should be overruled.



                                          Ill.
                  APPELLANT CLAIMS ACTUAL INNOCENCE


      In Point of Error Three, Appellant states that he is "actually innocent" of

aggravated robbery because the surveillance footage depicts another person

committing the act. Because Appellant cites no legal authority under this point of

error, and because the State believes that it is directly related to Point of Error

Four, the State will not directly address this point of error.




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                                          IV.
    WAS THE EVIDENCE PRODUCED AT TRIAL LEGALLY SUFFICIENT TO
                    SUPPORT APPELLANT'S CONVICTION?


      The final point of error before the court is whether the evidence produced

at trial against Appellant was legally sufficient to support his conviction for

aggravated robbery.

      The legal standard by which this court must review this case is well settled

and will not be restated at length here. Simply put, "[T]he relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

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

      The reviewing court must not substitute its own judgment for that of the

jury, instead, the court must defer to the fact finder's duty to weigh the evidence,

resolve conflicts in testimony and to draw reasonable inferences from the facts

presented at trial. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007); Jackson v. Virginia, 443 U.S. 307, 219 (1979). The reviewing court must

look at the cumulative weight of the evidence and determine whether such

evidence supports the conviction of the defendant as a party. Guevara v. State,

152 S.W.3d 45, 49 (Tex. Crim. App. 2004).

      In this case, there was ample evidence provided to the court from which it

could find beyond a reasonable doubt that Appellant committed the offense of

aggravated robbery.

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      The victim, Carolina Ali, identified the Appellant in court as the person who

robbed her. Reporter's Record (R.R.) Vol. 6 pp. 15-16. Ms. Ali recognized

Appellant when he walked into the store to rob her as the same man who came

in three days before. RR. Vol. 6 p. 16. When Appellant came into the store three

or four days after the robbery to cash a check, Ms. Ali recognized him again and

asked her daughter to get ready to call 911. R.R. Vol. 6 p. 17. Ms. Ali and her

husband found two receipts where Appellant had utilized Western Union at the

store under the name Mark Young, bolstering her assertion that she recognized

Appellant as someone who had been in her store before. R.R. Vol. 6 pp. 19-20.

Ms. Ali's daughter, Karina Ali Mukhida, identified Appellant in court as the same

person who attempted to cash a check three or four days after the robbery, the

same person Ms. Ali identified as her assailant. R.R. Vol. 6 pp. 37-39.

      Finally, Detective Jamie Fuller testified that Ms. Ali identified the defendant

in a photo lineup with 99% certainty. This lineup was conducted by a colleague

of Detective Fuller's who did not know which person was under suspicion. R.R.

Vol. 6 pp. 60-63. This line was conducted after Ms. Ali had identified a name for

her assailant but before she was able to look at any additional videos or photos

showing his face or likeness. R.R. Vol 6. pp. 20-21.

      The accumulation of this evidence shows that the court very reasonably

found that Appellant committed the offense of aggravated robbery as charged in

the indictment.



10
                                    PRAYER
      Appellant's trial was without prejudicial or fundamental error. The State
prays that Appellant's conviction and sentence be affirmed.


                                            Respectfully submitted,


                                            NOBLE D. WALKER, JR.
                                            Distr" ·3J Attorney
                                            Hut ounty~


                                              b&o::1-:
                                            STEVEN LiLLEY
                                            Assistant District Attorney
                                            P.O. Box 441
                                            4th Floor Hunt County Courthouse
                                            Greenville, TX 75403
                                            State Bar No. 24046293
                                            (903) 408-4180
                                            FAX (903) 408-4296




                          CERTIFICATE OF SERVICE
      A true copy of the State's brief has been delivered to Appellant, prose, via
mail on June 15, 2015.




                                            Assistant District Attorney




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       CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT


         In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the
  undersigned attorney of record certifies that Appellees Brief contains 13-point
  typeface of the body of the brief, 1,404 words, excluding those words identified
  as not being counted in appellate rule of procedure 9.4(i)(1 ), and was prepared
  on Microsoft Word 2007 .




./steven Lilley
   Attorney for the State




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