                                                                                               ACCEPTED
                                                                                          07-15-00123-CR
                                                                             SEVENTH COURT OF APPEALS
                                                                                       AMARILLO, TEXAS
                                                                                     9/11/2015 2:59:15 PM
                                                                                         Vivian Long, Clerk


                         IN THE COURT OF APPEALS
                    FOR THE SEVENTH DISTRICT OF TEXAS
                              AMARILLO, TEXAS
                                                                      FILED IN
                                                               7th COURT OF APPEALS
                                                                 AMARILLO, TEXAS
JESTIN ANTHONY JOSEPH              §                           9/11/2015 2:59:15 PM
     Appellant,                    §                                VIVIAN LONG
                                   §                                   CLERK
vs.                                §         NO. 07-15-00123-CR
                                   §
THE STATE OF TEXAS,                §
     Appellee.                     §

      APPEALED FROM CAUSE NUMBER 1343359D IN THE CRIMINAL DISTRICT
COURT NUMBER FOUR OF TARRANT COUNTY, TEXAS; THE HONORABLE MICHAEL
THOMAS, JUDGE PRESIDING.


                                       §§§
                              APPELLANT’S BRIEF
                                       §§§




                                             J. WARREN ST. JOHN
                                             State Bar No. 18986300
                                             2020 Burnett Plaza
                                             801 Cherry Street, Unit No. 5
                                             Fort Worth, Texas 76102-6810
                                             Telephone: (817) 336-1436
                                             Fax:(817) 336-1429
                                             E-mail: jwlawyer@aol.com

                                             Appellant’s Counsel




Oral Argument Is Requested.
                         IN THE COURT OF APPEALS
                    FOR THE SEVENTH DISTRICT OF TEXAS
                              AMARILLO, TEXAS

JESTIN ANTHONY JOSEPH,             §
     Appellant,                    §
                                   §
vs.                                §         NO. 07-15-00123-CR
                                   §
THE STATE OF TEXAS,                §
     Appellee.                     §

      APPEALED FROM CAUSE NUMBER 1343359D IN THE CRIMINAL DISTRICT
COURT NUMBER FOUR OF TARRANT COUNTY, TEXAS; THE HONORABLE MICHAEL
THOMAS, JUDGE PRESIDING.


                                       §§§
                              APPELLANT’S BRIEF
                                       §§§


                                             J. WARREN ST. JOHN
                                             State Bar No. 18986300
                                             2020 Burnett Plaza
                                             801 Cherry Street, Unit No. 5
                                             Fort Worth, Texas 76102-6810
                                             Telephone: (817) 336-1436
                                             Fax:(817) 336-1429
                                             E-mail: jwlawyer@aol.com

                                             Appellant’s Counsel




Oral Argument Is Requested.
                             LIST OF INTERESTED PARTIES


       Pursuant to Rule 38.1, TEX. R. APP. P., the following is a complete listing of all
parties to the trial court’s final judgment and their counsel in the trial court;
1.     The Honorable Michael Thomas, Criminal District Court Number Four of Tarrant
       County, Texas, 401 West Belknap Street, Fort Worth, Texas 76196.
2.     Honorable Sharen Wilson, Criminal District Attorney for Tarrant County, Texas, 401
       West Belknap Street, Fort Worth, Texas 76196, through her Assistants, Honorable
       Chuck Malin, Honorable G. Brock Groom and Honorable Robert Huseman.
3.     Appellant, JESTIN ANTHONY JOSEPH, presently serving his prison sentence, who
       can be served through his attorney of record, J. Warren St. John.
4.     Lisa Haines, 300 Burnett Street, No. 124, Fort Worth, Texas 76102. Appellant’s
       counsel in the trial court.




                                               i
                                            TABLE OF CONTENTS
LIST OF INTERESTED PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
CASE IN BRIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
POINT NUMBER ONE:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
         THE COURT’S VERDICT WAS IMPROPER BECAUSE APPELLANT DID NOT
         KNOW HIS CONDUCT WAS WRONG. (RR. II, III, IV, V)

POINT NUMBER TWO:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
         THE TRIAL COURT ERRED IN HOLDING THE EVIDENCE TO BE LEGALLY
         SUFFICIENT TO SUSTAIN THE CONVICTION OF THE APPELLANT BECAUSE
         THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE APPELLANT
         DID COMMIT THE OFFENSE OF AGGRAVATED ROBBERY WITH A DEADLY
         WEAPON, TO-WIT: A FIREARM BECAUSE HE DID NOT POSSESS THE
         MENTAL CAPACITY TO COMMIT THE OFFENSE. (RR. II, III, IV, V)

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13




                                                             ii
                                         TABLE OF AUTHORITIES
CASES                                                                                                       PAGES

Bigby v. State, 892 SW2d 864, 878 (Tex.Crim.App.1994). . . . . . . . . . . . . . . . . . . . . . . 7

Clark v. Arizona, 548 U.S. 735, 779, 126 S.Ct. 2709,
       165 L.Ed.2d 842 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Geesa v. State, 820 SW2d 154, 158-62 (Tex.Crim.App.1991). . . . . . . . . . . . . . . . . . . 8

Jackson v. Virginia, 443 U.S. 307, 319,
      99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Matson v. State, 819 SW2d 839, 846 (Tex.Crim.App.1991). . . . . . . . . . . . . . . . . . . . . 8

Moreno v. State, 755 SW2d 866, 867 (Tex.Crim.App.1988). . . . . . . . . . . . . . . . . . . . . 8

Mozen v. State, 991 SW2d 841 (Tex.Crim.App.1999). . . . . . . . . . . . . . . . . . . . . . . . . . 8

Narvaiz v. State, 840 SW2d 415, 423
      (Tex.Crim.App., 1992), cert. denied, ___ U.S. ___,
      113 S.Ct. 1422, 122 L.Ed.2d 791 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ruffin v. State, 270 SW3d 586 (Tex.Crim.App.2008).. . . . . . . . . . . . . . . . . . . . . . . . . . 4

Wicker v. State, 667 SW2d 137, 143
      (Tex.Crim.App.1984), cert. denied, 469 U.S. 892,
      105 S.Ct. 268, 83 L.Ed.2d 204 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


CODES, RULES AND STATUTES

RULE 9.4 (i) TEX. R. APP. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

RULE 38.1 TEX. R. APP. P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

RULE 403 TEX. R. EVID. OBJECTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

RULE 703-705 TEX. R. EVID. OBJECTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

TEXAS PENAL CODE § 801(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4


                                                          iii
                      IN THE COURT OF APPEALS
                 FOR THE SEVENTH DISTRICT OF TEXAS
                           AMARILLO, TEXAS

JESTIN ANTHONY JOSEPH               §
     Appellant,                     §
                                    §
vs.                                 §       NO. 07-15-00123-CR
                                    §
THE STATE OF TEXAS,                 §
     Appellee.                      §

      APPEALED FROM CAUSE NUMBER 1343359D IN THE CRIMINAL DISTRICT
COURT NUMBER FOUR OF TARRANT COUNTY, TEXAS; THE HONORABLE MICHAEL
THOMAS, JUDGE PRESIDING.


TO THE COURT OF APPEALS:
                            THE CASE IN BRIEF


THE INDICTMENT        AGGRAVATED ROBBERY WITH A DEADLY WEAPON,
                      TO-WIT: A FIREARM (CR. Vol. I, p. 5)
THE PLEA              NOT GUILTY BY REASON OF INSANITY (CR. Vol. I, p. 60)
THE VERDICT           GUILTY TO AGGRAVATED ROBBERY WITH A DEADLY
                      WEAPON, TO-WIT: A FIREARM AS TO COUNT 1 AS
                      CHARGED IN THE INDICTMENT
                      (CR. Vol. I, pp. 60-61)
THE PUNISHMENT        TWELVE YEARS IN THE INSTITUTIONAL DIVISION OF
                      THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE (CR.
                      Vol. I, pp. 60-61)




                                        1
                                      STATEMENT OF FACTS
       The following summary is intended to provide a brief overview of the trial testimony.

Further discussion of the testimony will be reserved for the argument and authorities

section of Appellant’s points of error.

       The record indicates that on September 24, 2013, Davage Armstrong went to the

McDonald’s at the 4800 block of the South Freeway in Fort Worth. His son, Kenshay was

also with him. Mr. Armstrong testified that around 9:15 at night that the Appellant

attempted to rob him at gunpoint. The Appellant allegedly robbed Mr. Armstrong for his

keys and some money, had his gun out and pulled the trigger.

       Mr. Armstrong pushed the Appellant against the wall; the gun did not discharge. Mr.

Armstrong ran into the back of the store towards the manager’s office. Mr. Armstrong went

outside to look for his son. There, he saw the Appellant again where the gun was

discharged. No one was shot.

       Mr. Armstrong ran back into the store to hide. Mr. Armstrong found his son hiding

in the bathroom unharmed.

       The Appellant ran away and was arrested by police on a freeway entrance ramp.

       Dr. Emily Fallis testified that Mr. Joseph Jestin suffered from schizophrenia and

suffered from a severe mental disorder or defect.

       Dr. Reed also testified that the Appellant was mentally ill, but not to the level of

insanity. (RR. Vol. II, III, IV, V)

       The Appellant’s attorney presented evidence to establish that Appellant did know

his actions were wrong.

       The Appellant’s attorney presented family members to describe Appellant’s bizarre

                                              2
delusions, including hearing voices and telling him what to do. (RR Vol. II, III, IV, V).

       The Court returned a guilty verdict. The Court sentenced the Appellant to Twelve

Years in prison. (CR. Vol. I, pp. 60-61) The Appellant gave timely Notice of Appeal to this

Honorable Court. (CR. Vol. I, p. 66)




                                             3
ARGUMENTS AND AUTHORITIES


POINT NUMBER ONE:
       THE COURT’S VERDICT WAS IMPROPER BECAUSE APPELLANT DID NOT
       KNOW HIS CONDUCT WAS WRONG. (Vol. II, III, IV, V)

Argument and Authorities:

       Under the Texas Penal Code § 801(a), it is an affirmative defense to prosecution

that, at the time of the conduct charged, the actor, as a result of severe mental disease or

defect, did not know that his conduct was wrong. Under Texas law, “wrong” in this context

means illegal”.

       Under Ruffin v. State, 270 SW3d 586 (Tex.Crim.App.2008), the Court indicates

Texas law, like that of all American jurisdictions, presumes that a criminal defendant is

sane and that he intends the natural consequences of his acts. Texas law, like that of

many American jurisdictions, excuses a defendant from criminal responsibility if he proves,

by a preponderance of the evidence, the affirmative defense of insanity. This defense

excuses the person from criminal responsibility even though the State has proven every

element of the offense, including the mens rea, beyond a reasonable doubt. The test for

determining insanity is whether, at the time of the conduct charged, the defendant as a

result of a severe mental disease or defect did not know that his conduct was “wrong.”

Under Texas law, “wrong” in this context means “illegal.” Thus, the question for deciding

insanity is this: Does the defendant factually know that society considers this conduct

against the law, even though the defendant, due to his mental disease or defect, may think

that the conduct is morally justified?

       Insanity is the only “diminished responsibility” or “diminished capacity” defense to
                                             4
criminal responsibility in Texas. These “diminished” mental-state defenses, if allowed,

would permit exoneration or mitigation of an offense because of a person’s supposed

psychiatric compulsion or an inability to engage in normal reflection or moral judgment.

Such defenses refer to a person’s lesser or impaired mental ability (compared to the

average person) to reason through the consequences of his actions because of a mental

disorder. The Texas Legislature has not enacted any affirmative defenses, other than

insanity, based on mental disease, defect, or abnormality. Thus, they do not exist in

Texas.

       But both physical and mental diseases or defects may affect a person’s perception

of the world just as much as they may affect his rational understanding of his conduct or

his capacity to make moral judgments. For example, suppose that a blind person is sitting

on his front porch and hears what he thinks is a trespasser coming up his walk. He shoots

at the person to scare him away, knowing that it is illegal to shoot people, even

trespassers. The “trespasser” turns out to be a uniformed police officer who is coming to

serve a subpoena. The blind man may be prosecuted for aggravated assault with a deadly

weapon, but he cannot be convicted of aggravated assault of a police officer if, because

of his blindness, he did not see the uniform and did not know that the person was a police

officer.   Evidence of the defendant’s blindness would, of course, be relevant and

admissible to rebut the State’s assertion that the defendant intended to shoot at a police

officer. Such evidence might be elicited from the defendant, a lay witness mother, brother,

friend, or neighbor, or from an expert, an optometrist, physician, etc. Courts routinely admit

evidence of a physical abnormality offered to prove a lack of mens rea.

       In Texas, the same rule applies to evidence of a mental disease or defect offered

                                              5
to rebut or disprove the defendant’s culpable mens rea. If, instead, of blindness, the

defendant suffers from mental delusions such that he sees “trespasser” or a “Muslim” when

everyone else around him sees a police officer, he cannot be convicted of intentionally

shooting at a police officer, although he may be convicted of intentionally shooting at a

trespasser or Muslim. Guilt of the greater offenses requires that the State prove, beyond

a reasonable doubt, that the defendant intended to shoot a police officer, not a trespasser

or Muslim. That is the required mens rea and that is the State’s constitutional burden of

proof.

         The defendant’s right to present a defense generally includes the due-process right

to the admission of competent, reliable, exculpatory evidence to rebut any of those

elements. Indeed, the Supreme Court has repeatedly struck down “arbitrary rules that

prevent whole categories of defense witnesses from testifying.” Quite recently, however,

the Supreme Court upheld Arizona’s wholesale exclusion of expert psychiatric testimony

concerning mental illness offered to rebut proof of the defendant’s mens rea.

         The Court, however, had already held that such expert evidence might be relevant,

reliable, and admissible to rebut proof of the defendant’s mens rea. We, like the dissenting

justices in Clark v. Arizona, 548 U.S. 735, 779, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006),

have confidence that our Texas judges and juries are sufficiently sophisticated to evaluate

expert mental-disease testimony in the context of rebutting mens rea just as they are in

evaluating an insanity or mental-retardation claim. Of course, such evidence may, in a

particular case, be excluded under other evidentiary rules, such as Rules 403 or 703-705,

if the probative value of the proffered evidence is substantially outweighed by the danger

of unfair prejudice, if the expert is insufficiently qualified, or the testimony is insufficiently

                                                6
596 relevant or reliable under our state’s guidelines for expert testimony. Such evidence

may also be excluded if it does not truly negate the required mens rea.

       In Bigby v. State, 892 SW2d 864, 878 (Tex.Crim.App.1994), the Court stated that

several expert witnesses testified that Appellant knew his conduct was illegal, however,

these experts contended that Appellant did not know the act was “morally” wrong. In other

words, Appellant believed that regardless of society’s views about this illegal act and his

understanding it was illegal, under his “moral” code it was permissible. This focus upon

Appellant’s morality is misplaced. The question of insanity should focus on whether a

Defendant understood the nature and quality of his action and whether it was an act he

ought to do. By accepting and acknowledging his action was “illegal” by societal standards,

he understood that others believed his conduct was “wrong”.

       Thus, the question for deciding insanity is; does the Defendant factually know that

society considers this conduct against the law, even though the Defendant, due to his

mental disease or defect, may think the conduct is morally justified. Mr. Joseph fit this

definition to a tee based on Dr. Fallis’ evaluation. (RR Vol. II, pp. 108-136) Dr. Reed also

testified that Appellant suffered from mental illness, not to the level of insanity.

       It is clear the Appellant met his burden of proof to show that he was insane at the

time of the offense, but the Court chose to disregard Mr. Joseph’s severe mental illness

and sad existence.

       The Appellant did not know his conduct was illegal at the time of the incident and

thus is not guilty by reason of insanity.




                                              7
POINT NUMBER TWO:
       THE TRIAL COURT ERRED IN HOLDING THE EVIDENCE TO BE LEGALLY
       SUFFICIENT TO SUSTAIN THE CONVICTION OF THE APPELLANT BECAUSE
       THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH THAT THE APPELLANT
       DID COMMIT THE OFFENSE OF AGGRAVATED ROBBERY WITH A DEADLY
       WEAPON, TO-WIT: A FIREARM BECAUSE HE DID NOT POSSESS THE
       MENTAL CAPACITY TO COMMIT THE OFFENSE. (RR. II, III, IV, V)

Argument and Authorities:

       In reviewing the legal sufficiency of the evidence to support a conviction, we view

the evidence in the light most favorable to the verdict. Narvaiz v. State, 840 SW2d 415,

423 (Tex.Crim.App.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1422, 122 L.Ed.2d 791

(1993). The critical inquiry is whether, after so viewing the evidence, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.

Moreno v. State, 755 SW2d 866, 867 (Tex.Crim.App.1988) “This familiar standard gives

full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       The sufficiency of the evidence is a question of law. The issue on appeal is not

whether the court believes the State’s evidence or believes that the defense’s evidence

outweighs the State’s evidence. See Matson v. State, 819 SW2d 839, 846

(Tex.Crim.App.1991); Wicker v. State, 667 SW2d 137, 143 (Tex.Crim.App.), cert. denied,

469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984). The verdict may not be overturned

unless it is irrational or unsupported by proof beyond a reasonable doubt.

Matson, 819 SW2d at 846. The standard for review is Geesa v. State, 820 SW2d 154,

158-62 (Tex.Crim.App.1991).


                                                 8
       The State of Texas did not meet its burden of proof, proof beyond a reasonable

doubt, in that it failed to prove that Appellant committed the offense as is set out in the

indictment. Federal Courts indicate that a reasonable doubt is a doubt based on reason

and common sense after a careful and impartial consideration of all evidence in the case.

It is the kind of doubt that would make a reasonable person hesitate to act in the most

important of his own affairs. Proof beyond a reasonable doubt, therefore, must be proof

of such a convincing character that you would be willing to rely and act upon it without

hesitation in the most important of your own affairs. The Appellant lacked the mens rea

to commit the offense of Aggravated Robbery with a Deadly Weapon, To-Wit: a Firearm

against Mr. Armstrong. The Appellant’s conviction should be reversed.




                                            9
                             SUMMARY OF ARGUMENT

      The Court returned an improper verdict because the Appellant did not know his

conduct was wrong.

      The Trial Court erred in holding the evidence to be sufficient to sustain the

conviction of the Appellant because the evidence was insufficient to establish that the

Appellant had committed the offense of Aggravated Robbery with a Deadly Weapon, To-

Wit: a Firearm based on lack of mens rea.




                                            10
                                  CONCLUSION AND PRAYER

       Appellant has presented two independent points of error, any of which, if sustained,

would warrant reversal of the case. Appellant therefore prays that his conviction be

overturned with instructions that the trial court acquit Appellant of all charges against him.

Alternatively, Appellant requests reversal of the conviction against him and remand to the

trial court for a new trial. Finally, Appellant requests further relief either in law or in equity

to which he is justly entitled.



                                             Respectfully Submitted,


                                             /S/ J. Warren St. John
                                             J. WARREN ST. JOHN
                                             State Bar No. 18986300
                                             2020 Burnett Plaza
                                             801 Cherry Street, Unit No. 5
                                             Fort Worth, Texas 76102-6810
                                             Telephone: (817) 336-1436
                                             Fax:(817) 336-1429
                                             jwlawyer@aol.com

                                             ATTORNEY FOR APPELLANT




                                               11
                             CERTIFICATE OF SERVICE

      A copy of this brief has been delivered to the Honorable Chuck M. Mallin, Assistant

District Attorney, Tim Curry Criminal Justice Center, 401 W. Belknap Street, Fort Worth,

Texas 76196 and mailed to Appellant, JESTIN ANTHONY JOSEPH, on this 11th day of

September, 2015.


                                        /S/ J. Warren St. John




                                          12
          CERTIFICATE OF COMPLIANCE WITH RULE 9.4(i)


         Certificate of Compliance with Type-Volume Limitation


This brief contains 2,509 words, in compliance with TEX.R.APP.P 9.4(i)




                                 /S/ J. Warren St. John


                                 DATED: September 11, 2015




                                   13
